Barber v. Barber, 90-CA-0096

Citation608 So.2d 1338
Decision Date10 September 1992
Docket NumberNo. 90-CA-0096,90-CA-0096
PartiesDaniel A. BARBER v. Emma Lou BARBER.
CourtUnited States State Supreme Court of Mississippi

E. Foley Ranson, Sadler Ranson & Bordis, Ocean Springs, for appellant.

Emma Lou Barber, Pro Se, Baton Rouge, La., for appellee.

Before DAN M. LEE, P.J., and BANKS and PITTMAN, JJ.

BANKS, Justice, for the Court:

In this divorce litigation the husband, Daniel Barber asks that we determine whether his former spouse may retain a percentage of his funds which had been incorporated into her profit-sharing account. The funds had been acquired by Daniel as damages resulting from an unlawful termination suit against a past employer and were placed in the account with the husband's permission. We are also presented with the issue of whether a spouse can be awarded a sum towards her attorney's fees where she did not pray for such relief in her pleadings.

I.

This case is on appeal from the Jackson County Chancery Court where the Honorable Kenneth Robertson granted a divorce to Emma Lou Barber (Emma Lou) against Daniel A. Barber (Daniel) on the grounds of habitual cruel and inhuman treatment on October 6, 1988. On November 7, 1986, Emma Lou filed her complaint for divorce against Daniel alleging as grounds, habitual cruel and inhuman treatment or in the alternative, irreconcilable differences. She sought, in addition to a divorce custody of their minor child, child support and settlement of property, including the savings accumulated by the parties.

Daniel filed his answer in which he alleged affirmatively that he received a settlement from his ex-employers, Gulf Publishing Company, as a result of an employment rights' lawsuit. He alleged that he placed $12,400 of the proceeds into Emma Lou's employee profit-sharing plan to take advantage of a favorable interest rate. Daniel requested that Emma Lou be ordered to return the funds to him. Emma answered denying the claim.

The court awarded Emma Lou a divorce, custody and child support. It ordered Emma Lou to return to Daniel the sum of $8,000 plus interest, representing the unused balance of the $12,400 deposited into the profit-sharing account. In addition, Daniel was ordered to pay $525 towards attorney's fee incurred by Emma Lou.

Subsequently, Emma Lou filed a Motion for Reconsideration expressing her dissatisfaction with the rulings by the Chancellor regarding the amount of child support, as well as, the order forcing her to pay $8,000. The chancellor, on December 19, 1989, overruled that motion and reaffirmed as final the judgment of November 28, 1989. On January 4, 1990, William Myers successfully withdrew as counsel for Emma Lou Barber. On January 18, 1990, Daniel filed his appeal to this Court, assigning as error two issues: the failure to require reimbursement of the balance of the $12,400 and the award of attorney's fees.

II.

Apparently, the stenographic notes and tapes were lost in this case. The court reporter has failed to acknowledge receipt of designation of the record, See Miss.S.Ct.R. 11(c), or otherwise respond to repeated correspondence from this Court. The record does not reflect any efforts on the part of Daniel to secure a transcript or to ascertain a reason for the failure of the court reporter to respond.

Daniel filed a Statement of the Evidence in accordance with Rule 10, Miss.Sup.Ct.R., on August 22, 1991. When an aggrieved party wishes to file an appeal to this Court, and the trial record or transcript is unavailable, the rule provides that a statement of the evidence be filed. The rule contains a sixty-day filing requirement. Miss.S.Ct.R. 10. In other words, Daniel had sixty days after he filed his appeal to this Court in which to file the statement of the evidence. Daniel failed to comply with this requirement by filing his statement, some one year, seven months, and four days after his notice of appeal to this Court.

The rule also mandates that notice of filing of the statement of the evidence be served simultaneously on the filing party's adversary. Daniel mailed a certificate of service to John Sharp of Baton Rouge, Louisiana. John Sharp has never appeared as an attorney of record in this or the court below. The file of this Court contains a letter from Mr. Sharp to the effect that he represented Emma in Louisiana, but not in Mississippi. Nevertheless, he indicated that correspondence in this matter should be directed to him. Emma did not sign the letter or otherwise indicate that she had authorized Sharp to so direct service in this matter. The record reveals that all papers served in accordance with this appeal were served upon Sharp.

Daniel's brief was timely filed on October 10, 1991. On November 7, 1991, Emma filed a letter with this court indicating that she was unable to afford counsel for this matter, but that she opposed Daniel's request for relief.

III.

Ordinarily, where a party fails to file a brief on appeal, we take the issues raised by the opposing party as confessed. Price v. Price, 430 So.2d 848 (Miss.1983). In matters of child custody and...

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25 cases
  • Powell v. Powell
    • United States
    • United States State Supreme Court of Mississippi
    • October 20, 1994
    ...the notice was properly served on Marvin. This Court has considered the issue of attorney representation of a client in Barber v. Barber, 608 So.2d 1338 (Miss.1992). In Barber, Justice Banks, for the Court, stated: While it is clear that service on a party's attorney is sufficient, it is eq......
  • Wilson v. Davis
    • United States
    • United States State Supreme Court of Mississippi
    • January 7, 2016
    ...and support ... this Court will ‘make a special effort to review the record for support for affirmance.’ " (quoting Barber v. Barber, 608 So.2d 1338, 1340 (Miss.1992) )).ANALYSIS ¶ 6. This Court reviews the chancellor's findings for manifest error. Westbrook v. Oglesbee, 606 So.2d 1142, 114......
  • NE v. LH, 1998-CA-01242-COA.
    • United States
    • Court of Appeals of Mississippi
    • June 13, 2000
    ...we proceed unaided by a brief from the appellee." Allred v. Allred, 735 So.2d 1064 (¶ 9) (Miss.Ct.App.1999); see also Barber v. Barber, 608 So.2d 1338, 1340 (Miss.1992) (holding that despite our ordinary practice of taking issues as confessed when a party fails to file a brief; in matters o......
  • Nichols v. Funderburk, 2002-CA-00087-COA.
    • United States
    • Court of Appeals of Mississippi
    • November 4, 2003
    ...question. Does the fact that David, as the appellee, failed to file a brief serve as a confession of error? In Barber v. Barber, 608 So.2d 1338, 1340 (Miss.1992), the Mississippi Supreme Court In matters of child custody and support, however, in the absence of an appellee's brief, our pract......
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