Penton v. Penton
| Docket Number: | 2007-CA-02046-COA | |
| Court of Appeals: |
Opinion Link Opinion Date: 04-13-2010 Opinion Author: Barnes, J. Holding: The appeal is dismissed for lack of jurisdiction. |
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| Additional Case Information: |
Topic: Divorce: Irreconcilable differences - Timeliness of appeal - M.R.A.P. 4(a) & (g) - Sua sponte amendment to judgment - M.R.C.P. 52(b) - M.R.C.P. 59(d) - M.R.C.P. 60(a) - Motion for extension of time Judge(s) Concurring: King, C.J., Lee and Myers, P.JJ., Irving, Griffis, Ishee, Roberts and Maxwell, JJ. Non Participating Judge(s): Carlton, J. Procedural History: Bench Trial Nature of the Case: CIVIL - DOMESTIC RELATIONS |
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| Trial Court: |
Date of Trial Judgment: 10-17-2007 Appealed from: PEARL RIVER COUNTY CHANCERY COURT Judge: James H.C. Thomas, Jr. Disposition: DIVORCE GRANTED; MARITAL ESTATE DIVIDED AND DISTRIBUTED Case Number: 05-0031-GN-TH |
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| Note: | Due to a military leave of absence, Hon. Virginia C. Carlton did not participate in this hand down. | |
| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | Bruce H. Penton |
BETSY E. WALKER |
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| Appellee: | Carol Annette Penton | JAMES R. HAYDEN | ||
| Appellee #2: | ||||
Synopsis provided by:  If you are interested in subscribing to the weekly synopses of all Mississippi Supreme Court and Court of Appeals hand downs please contact Tammy Upton in the MLI Press office. |
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| Topic: | Divorce: Irreconcilable differences - Timeliness of appeal - M.R.A.P. 4(a) & (g) - Sua sponte amendment to judgment - M.R.C.P. 52(b) - M.R.C.P. 59(d) - M.R.C.P. 60(a) - Motion for extension of time |
| Summary of the Facts: | Bruce Penton filed for divorce from Carol Annette Penton on the grounds of habitual, cruel and inhuman treatment or, alternatively, irreconcilable differences. Annette filed an answer and counterclaim for divorce based on habitual, cruel and inhuman treatment and adultery. Both parties agreed to withdraw the fault grounds for divorce and instead proceed on irreconcilable differences. As all three of the Pentons’ children were over the age of twenty-one at this time, the only remaining issues were alimony and property division. The chancellor entered a judgment, granting a divorce based on irreconcilable differences. No alimony was awarded as both parties support themselves. The chancellor found the marital property had a total value of $635,718, which, when divided in half, entitled each party to $317,859 in marital assets. The chancellor found each parties’ share of the marital interest would be subject to the parties’ post-separation surreptitious use of the assets and made adjustments accordingly. The chancellor ordered the homestead to be judicially sold. Annette was awarded the first $64,039 of its net sale proceeds, after paying any outstanding indebtedness on the property and the costs of the sale. Bruce was to receive the balance to round out the equitable distribution of the marital assets. Further, the couples’ 1992 Harley Davidson motorcycle and 1972 Cam trailer were to be judicially sold, with the proceeds used to pay the administrative court costs of the action, including any unpaid costs of the special master. The parties would divide any remaining funds from this sale equally. Twenty days after the original order, the chancellor entered a brief two-page order of clarification concerning his instructions to the clerk of the court in carrying out the judicial sale of the property. The chancellor directed the clerk to distribute the proceeds from the judicial sale of the homestead by paying Annette the first $64,039 net proceeds after paying outstanding indebtedness, with any remaining funds paid to Bruce. He further clarified that the clerk was to divide equally only the proceeds from the sale of the motorcycle and trailer. Bruce appeals. |
| Summary of Opinion Analysis: | Annette argues that the appeal should be dismissed because it was filed beyond the thirty-day deadline provided in M.R.A.P. 4(a). Alternatively, she argues that if Bruce were appealing from the order of clarification, Bruce’s notice of appeal is timely but it is limited to the two items discussed in that order: the judicial sale of the home and personal property. The chancellor filed his order of clarification sua sponte. M.R.C.P. 52(b) provides that a court’s sua sponte amendment to findings and corresponding judgments must be made within ten days after entry of judgment; further, M.R.C.P. 59(d) requires the court’s sua sponte order for new trial be made within ten days after entry of judgment. However, M.R.C.P. 60(a) has an open-ended time in which a court may, on its own initiative, correct clerical mistakes arising from oversights or omissions. Accordingly, a material, substantive amendment to the original judgment must be made by the court within ten days of the original entry of judgment, as only clerical errors come under the ambit of Rule 60(a). The rules of civil and appellate procedure do not address what effect a sua sponte modification of judgment has on the time for filing a notice of appeal. Federal courts have long held that only when the lower court changes matters of substance, or resolves a genuine ambiguity, in a judgment previously rendered should the period within which an appeal must be taken begin to run anew. Thus, if the second judgment is identical to the first but corrects only technical errors, this does not constitute a substantive change and does not restart the time for filing a notice of appeal. Here, the order of clarification did not make any substantive change to the original order. The chancellor was clarifying his instructions to the clerk regarding the judicial sale; he was not modifying the rights of the parties in any manner. He was, in fact, clarifying a technical error and making the instructions to the clerk correspond to the division of property already ordered. This clarification would not constitute a substantial change and, thus, begin anew the time to file an appeal. M.R.A.P. 4(g) controls whether the trial court may extend the time for filing a notice of appeal. Mississippi’s Rule 4(g) is patterned after Federal Rule of Appellate Procedure 4(a)(5). The federal rule was amended in 1979, after which federal courts are less likely to treat a notice of appeal as a motion for an extension of time. Following the federal interpretation, Bruce’s notice of appeal is not sufficient to be treated as a motion for an extension of time. Thus, the case is dismissed for lack of jurisdiction. |
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