Brame v. Brame

• Decision Date: 14 June 2001
• Docket Number: No. 98-CT-00502-SCT.,98-CT-00502-SCT.
• Citation: 796 So.2d 970
• Parties: Thomas Quitman BRAME, Jr. v. Sherrye Polk BRAME.
• Court: Mississippi Supreme Court

796 So.2d 970

Thomas Quitman BRAME, Jr. v. Sherrye Polk BRAME.

No. 98-CT-00502-SCT.

Supreme Court of Mississippi.

June 14, 2001.

Rehearing Denied October 11, 2001.

Thomas L. Tullos, Appellant, pro se.

John N. Satcher, Heidelberg, Attorney for Appellant.

L. Wesley Broadhead, Mendenhall, Attorney for Appellee.

EN BANC.

ON WRIT OF CERTIORARI

BANKS, P.J., for the Court:

¶ 1. This appeal involves the issues of division of property, child custody and child support arising pursuant to a divorce. This Court granted certiorari to consider these issues, as well as procedural questions involving the denial of certain post-trial motions without a hearing. After due consideration, we reverse in part and remand for further proceedings.

I.

¶ 2. The following statement of facts was provided by the Court of Appeals:

Thomas Brame (Thomas) and Sherrye Polk Brame (Sherrye) were married on May 20, 1979, and lived in the Bay Springs, Mississippi, area during their marriage. Three children were born to this marriage: Melissa in 1981, Laura in 1982, and Thomas III in 1985. Sherrye filed for divorce on grounds of adultery, and after a four day trial, the final judgment of divorce was granted December 10, 1997.

At the time of their marriage, Thomas held a law degree and had been practicing law for four months in Bay Springs. Sherrye held a bachelors degree in management and was a pharmaceutical drug representative for Lemman Pharmaceutical. Both worked until 1981 when Sherrye quit work to stay home and raise their children. Sherrye returned to the workforce in 1995 after the couple separated.

In 1991, Thomas was diagnosed as having a medical condition that requires medication to control the symptoms. Medication for treating this incurable disease costs Thomas $1,000 per month.

In the judgment for divorce, the chancellor awarded Thomas primary custody of Melissa and Thomas III, and granted primary custody of Laura to Sherrye. Thomas was granted visitation rights with Laura, and Sherrye was granted the same with Melissa and Thomas III. Thomas was also ordered to pay Sherrye $500 per month in child support and ordered to pay one-half of non-insured medical expenses for Laura. Thomas was ordered to pay periodic alimony to Sherrye in the amount of $700 per month and ordered to pay $10,000 for Sherrye's attorney fees. Thomas was assigned $71,000 worth of debt.

Sherrye was also awarded title to the 1990 Mercury vehicle, one-half of Thomas's investment and retirement accounts, and her non-marital assets, including jewelry valued at $11,200. Sherrye retained her stock in a family drug store business and retained her one-third remainder interest in a family trust. Sherrye assumed $30,000 worth of debt. Brame v. Brame, No. 98-CA-00502-COA, at ¶ 2-6, 2000 WL 311511 (Miss.Ct.App. March 28, 2000).

¶ 3. Thomas subsequently filed several post-trial motions, specifically (a) a Motion for New Trial or for Amendment of Judgment, (b) a Defendant's Motion for Award of Attorney's Fees and Litigation Costs and (c) a Motion to Reconsider, For Relief from Judgment, Or Alternatively, For Modification. In the latter motion, Thomas asserted that Laura, whose custody was granted to Sherrye, had decided to live with Thomas and was in fact living with Thomas. This fact was advanced as new evidence to require amending the judgment to place custody of Laura with Thomas and to eliminate the award of child support to Sherrye or, alternatively, to modify the judgment to that extent. These three motions were denied by the chancery court without a hearing.

¶ 4. On direct appeal Thomas raised numerous issues concerning the division of assets and support. The Court of Appeals affirmed the trial court's judgment. The Court of Appeals found that the chancellor had erred in designating Thomas's law practice as a marital asset. The Court of Appeals found that the chancery court had erred in finding that the law practice could be part of an equitable distribution of marital assets, and had erred in valuing the law practice at $65,000. This error was found to be inconsequential, as Sherrye did not receive 50% of the marital assets even if one included the law practice. Finally, the Court of Appeals found that the chancellor did not err in denying Thomas's post-trial motions without a hearing.

¶ 5. We conclude that the Court of Appeals was correct in its decision on the issues of assets and alimony. The Court of Appeals cited the proper standard of review, and the chancellor's decisions on these matters were supported by the record and well within his discretion.

¶ 6. We do not reach the issue of the chancery court's treatment of Thomas's law practice as a marital asset capable of equitable distribution. The issue was not raised by either party on certiorari and is not necessary to our decision here.

II.

¶ 7. This trial was held in June and July, 1997. The chancellor issued his opinion on October 19, 1997. The final judgment was entered on December 10, 1997. On December 22, 1997, Thomas filed a Motion for New Trial or Amendment of Judgment. This motion raised numerous alleged errors in the trial and was filed under M.R.C.P. 59.

¶ 8. On December 31, 1997, Thomas filed a Motion for Award of Attorney's Fees, Litigation Costs and Expenses. In addition to attorney's fees, the motion also asked the chancellor to consider that an offer for judgment had been made by Thomas pursuant to M.R.C.P. 68. Further, the motion asked for expenses based on the fact that Thomas was forced to prove certain matters about which a request for admissions had been made of Sherrye.

¶ 9. Also on December 31, 1997, Thomas filed a Motion to Re-Consider, for Relief from Judgment, or Alternatively, For Modification. The motion was based on the fact that Laura, whose custody was granted to Sherrye, and for whom Sherrye was awarded child support, had elected to live with her father. This motion was filed under M.R.C.P. 60. The Court of Appeals stated the following regarding this motion:

The motion to reconsider refers to the chancellor's need to reconsider his decision in light of ... Laura's decision to live permanently with Thomas rather than with Sherrye. Such being the case, Thomas would have custody of all three children, effectively terminating his need to pay child support to Sherrye. However, facts subsequent to the trial could not cause errors in the trial which could be corrected on a reconsideration of a judge's decision from that trial. However, the proper approach would be to file a petition for modification of child support, citing a material change in circumstances. Since Thomas did not file the proper petition, we find the chancellor was correct in denying the requested relief.

Brame v. Brame, No. 98-CA-00502-COA, at ¶ 38, 2000 WL 311511 (Miss.Ct.App. March 28, 2000).¹ ¶ 10. The Court of Appeals erred in basing its decision on Thomas's supposed failure to file a Petition for Modification. The fact is that Thomas did file a motion to modify, as that was a part of the relief requested in the last motion filed.

¶ 11. As a preliminary matter we address the question of appealing the judgment and denial of motions filed under M.R.C.P. 59 and 60 under the same notice of appeal. While we have not addressed the issue, federal authority with respect to the identical rule suggests that a separate notice of appeal is required to gain review of the trial court's action on a Rule 60 motion. Reed v. AMAX Coal Co., 971 F.2d 1295, 1301 (7th Cir.1992); Ingraham v. United States, 808 F.2d 1075, 1080-81 (5th Cir.1987). This is true because appeal from a denial of a Rule 60 motion does not bring up the underlying judgment and vice versa. Bank of Edwards v. Cassity Auto Sales, Inc., 599 So.2d 579, 582 (Miss.1992). Here, however, all of the motions filed after trial, one of which was timely to stay finality of judgment, were denied by the same order filed on February 17, 1998. Thomas's timely notice of appeal stated that it was appealing the denial of all of these motions. We hold that where, as here, the Rule 60 motion is filed and disposed of within the time allowed for appeal from the underlying judgment and the notice of appeal speaks to the judgment and the order disposing of the motion, one notice of appeal is sufficient to bring to this court both the judgment and the Rule 60 order.

¶ 12. On the merits, it is clear that the chancery court erred in failing to hold a hearing on the Motion to Re-Consider, for Relief from Judgment, or Alternatively, for Modification. The allegations of the motion, if true, may well have been such a material change in circumstances as would compel alteration of the judgment. The issue of support for Laura Brame cannot be properly considered on appeal without some finding, on the record, concerning her actual custodial arrangement. We, therefore, reverse and remand for a hearing on the Motion to Re-Consider, for Relief from Judgment, or Alternatively, For Modification filed by Thomas Brame. The award of child support in favor of Sherrye can be reconsidered on remand.

¶ 13. For these reasons, the judgments of the Court of Appeals and the Jasper County Chancery Court are reversed as to the denial of Thomas's post-trial motions, and this case is remanded to the Jasper County Chancery Court for a hearing on Thomas's Motion to Re-Consider, for Relief from Judgment, or Alternatively, for Modification and for any necessary reconsideration of the child support award in favor of Sherrye Polk Brame. The judgments of the Court of Appeals and the Jasper County Chancery Court are affirmed in all other respects except as to the inclusion of Thomas's law practice as a marital asset subject to equitable distribution which was not raised and decided on certiorari.

¶ 14. AFFIRMED IN PART AND REVERSED IN PART AND REMANDED.

SMITH, WALLER, COBB, DIAZ AND EASLEY, JJ., CONCUR. McRAE, P.J., CONCURRING IN PART AND DISSENTING IN PART WITH SEPARATE WRITTEN OPINION JOINED BY PIT...