Simmons v. Simmons
| Docket Number: | 2010-CA-00205-COA | |
| Court of Appeals: |
Opinion Link Opinion Date: 03-29-2011 Opinion Author: Roberts, J. Holding: Affirmed. |
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| Additional Case Information: |
Topic: Divorce: Habitual cruel and inhuman treatment - Motion to set aside judgment - Ten-day period - M.R.C.P. 52(b) - M.R.C.P. 59 - M.R.C.P. 60(b)(1) & (6) - Appearance - M.R.C.P. 55 - Notice of hearing - Record of testimony - Section 93-5-17(1) Judge(s) Concurring: Lee, C.J., Irving and Griffis, P.JJ., Myers, Barnes, Ishee, Carlton and Maxwell, JJ. Procedural History: Dismissal Nature of the Case: CIVIL - DOMESTIC RELATIONS |
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| Trial Court: |
Date of Trial Judgment: 12-29-2009 Appealed from: Warren County Chancery Court Judge: Vicki Barnes Disposition: Dismissed Appellant's Motion to Set Aside Judgment of Divorce Case Number: 2009-170GN |
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| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | Joey K. Simmons |
WREN CARROLL WAY |
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| Appellee: | Betty C. Simmons | DAVID M. SESSUMS | ||
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: Habitual cruel and inhuman treatment - Motion to set aside judgment - Ten-day period - M.R.C.P. 52(b) - M.R.C.P. 59 - M.R.C.P. 60(b)(1) & (6) - Appearance - M.R.C.P. 55 - Notice of hearing - Record of testimony - Section 93-5-17(1) |
| Summary of the Facts: | Betty Simmons filed a complaint seeking a divorce from Joey Simmons on the ground of habitual cruel and inhuman treatment or, in the alternative, on the ground of irreconcilable differences. In her complaint, Betty sought exclusive use and possession of the marital residence and furnishings, temporary, periodic alimony, and attorney’s fees. Joey failed to answer or appear at the divorce hearing. The chancellor entered a final judgment granting Betty a divorce from Joey on the ground of habitual cruel and inhuman treatment. The chancellor also awarded Betty the marital home and furnishings plus her reasonable attorney’s fee in the amount of $650. There was not an award since the children were emancipated or alimony. Apparently Joey was not aware of the entry of divorce. The parties continued living in the family home until Joey found out about the divorce hearing and judgment. That same day, Joey filed a motion to set aside the judgment alleging that he was entitled to notice of the hearing. The chancellor denied Joey’s motion. Joey appeals. |
| Summary of Opinion Analysis: | Issue 1: Ten-day period Joey argues that the chancellor erred in finding that he was required to file his motion to set aside judgment of divorce within ten days of the judgment. There is no dispute that Joey filed his motion to set aside judgment on September 30, 2009, which was more than ten days after the divorce judgment was entered on August 21, 2009. M.R.C.P. 52(b) allows a court, on its own motion or on a party’s motion, to amend its findings of fact and amend the judgment accordingly. M.R.C.P. 59 allows a party to file a motion for a new trial or to have the judgment amended. Finally, M.R.C.P. 60 allows a party to seek relief from a judgment or order. Rule 52(b) and Rule 59 both contain language that motions must be filed within ten days of the judgment being entered; however, Rule 60 does not contain this language. Thus, Rule 60 is the only available procedural vehicle that Joey has when attacking the judgment since he filed his motion more than ten days after the judgment was entered. Joey argues that the chancellor erred in failing to find Betty had committed fraud, misrepresentation, or other misconduct pursuant to Rule 60(b)(1). He alleges, through his and his daughter’s sworn affidavits, that Betty committed acts of misconduct or fraud, more specifically by her appearing before a justice court judge and answering affirmatively when asked if they were still married even though the final judgment of divorce had already been entered. With the exception of the justice court hearing, there is no evidence in the record alleging that Betty committed fraud or misconduct such that would warrant relief under Rule 60(b)(1). Further, were Joey’s version of the justice court hearing true, there is still no ground to set aside the divorce judgment based on fraud or misrepresentation because there is no evidence that Betty obtained the divorce judgment by fraud or misconduct. Joey also argues that he is entitled to relief pursuant Rule 60(b)(6). Joey would have to show some other exceptional circumstance to be entitled to relief and he has failed to do so. Issue 2: Appearance Joey argues that he was entitled to three days’ notice of the divorce hearing pursuant to M.R.C.P. 55. A person enters an appearance sufficient to require notice when the non-movant has manifested to the movant a clear intent to defend the suit. Joey argues that although he had not filed an answer, he had retained an attorney who contacted Betty’s attorney regarding the divorce proceeding and that the phone call was sufficient to constitute an appearance under Rule 55. There is a factual dispute as to whether the phone call, if such call in fact occurred, was a clear manifestation by way of an intent to defend the suit. As such, the chancellor did not abuse her discretion in determining that the alleged, undocumented phone call was an appearance sufficient to require three days’ advance notice of the divorce hearing. Issue 3: Record Joey argues that there is no record of the divorce-proceeding testimony; thus, there is no evidence to support the chancellor’s award of all marital property and attorney’s fee to Betty. There is no language in section 93-5-17(1) that requires a transcription of an uncontested divorce hearing. The only requirement is that there is sufficient and corroborated proof presented at the hearing. The chancellor found the evidence presented to be sufficient, and there is a presumption that there is sufficient evidence to sustain a decree once it is entered by the chancellor. |
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