Cohen v. Cohen, 98-CA-00750-SCT.

• Decision Date: 16 September 1999
• Docket Number: No. 98-CA-00750-SCT.,98-CA-00750-SCT.
• Citation: 748 So.2d 91
• Parties: Carolyn J. COHEN v. Suzette COHEN.
• Court: Mississippi Supreme Court

748 So.2d 91

Carolyn J. COHEN v. Suzette COHEN.

No. 98-CA-00750-SCT.

Supreme Court of Mississippi.

September 16, 1999.

Mark B. Strickland, Gulfport, Attorney for Appellant.

Walter W. Teel, Jackson, Attorney for Appellee.

EN BANC.

SMITH, Justice, for the Court:

¶ 1. This case comes to this Court on appeal of Carolyn Cohen from an adverse ruling of the First Judicial District of Harrison County Chancery Court. Carolyn is the purported second wife of Edward R. Cohen. They married in 1996 after Edward received what he thought was a valid divorce from his first wife, Suzette Cohen. After Edward remarried, Suzette filed a motion to set aside the judgment of divorce. Claiming that any effort to invalidate Edward's divorce from his first wife would affect her marital status and her property interests, Carolyn filed a motion to intervene in the divorce proceedings between Edward and Suzette. The Chancellor denied the motion to intervene. Carolyn appeals to this Court and assigns as error the Chancellor's refusal to grant her leave to intervene.

¶ 2. The general rule prohibits intervention by third parties in divorce cases. Hulett v. Hulett, 152 Miss. 476, 119 So. 581 (1928), however, rare exceptions which are distinguished do exist.

¶ 3. After thorough review of this unusual, fact driven case, we find that the chancellor erred in denying intervention by Carolyn. Carolyn has a "direct, substantial, legally protectable interest in the proceedings," as required by Perry County v. Ferguson, 618 So.2d at 1272 (quoting League of United Latin Amer. Citizens v. Clements, 884 F.2d 185, 187 (5th Cir.1989)

). Also, applying the four-part test in Guaranty National Ins. Co. v. Pittman, 501 So.2d 377, 381 (Miss.1987), we find that when "common sense and practicality" is applied, Carolyn has a valid interest in this divorce proceeding and should be allowed to intervene. Additionally, we find this case to be somewhat similar, yet distinguishable, to another rare fact driven case, Jones v. Goolsby, 218 Miss. 847, 68 So.2d 89 (1953). There, this Court allowed siblings to protect inheritance rights in attacking a divorce decree entered by fraud upon the court, by original bill in the nature of a bill of review. In allowing intervention in the case sub judice, we adopt and apply the reasoning of Boyle v. Boyle, 194 W.Va. 124, 459 S.E.2d 401, 404 (1995),

In re Marriage of Perkinson,, 147 Ill. App.3d 692, 101 Ill.Dec. 137, 498 N.E.2d 319, 322 (1986),

Harris v. Harris, 151 Neb. 191, 36 N.W.2d 849 (1949), and Arnold v. Arnold, 214 Neb. 39, 332 N.W.2d 672 (1983). In our view, Carolyn has demonstrated an interest which outweighs any substantial privacy interests of the parties, Suzette and Edward, who apparently believed that they were previously legally divorced, but in fact, were not. The general rule of prohibition of intervention by third parties in divorce cases as established in Hulett remains valid in most cases. The case at bar is a rare exception, therefore, we hold that Carolyn is allowed to intervene.

STATEMENT OF FACTS

¶ 4. Edward and Suzette Cohen were married on April 26, 1981. In 1994, Suzette filed for divorce and Edward filed a counterclaim. The parties eventually agreed to a divorce on the grounds of irreconcilable differences and announced to the Chancellor that they had reached a property and child custody agreement. The attorneys dictated the terms of the agreement into the court record, but never produced a writing signed by both parties. The Chancellor signed a judgment of divorce on December 21, 1995, in which he granted Edward and Suzette a divorce on the grounds of irreconcilable differences. The judgment incorporated a copy of the transcript from the hearing in which the settlement was announced, but did not include a written settlement agreement signed by the parties.

¶ 5. On August 7, 1996, Edward married Carolyn Cohen. The two purchased a home together, and apparently are involved in a business relationship as well.

¶ 6. In March of 1996, Edward filed a motion for contempt in which he claimed that Suzette had refused to abide by the agreed settlement. Suzette filed a motion to set aside the divorce judgment on August 14, 1997. She claimed that the divorce decree was void because there was no written property settlement agreement signed by the parties as is required by law. ¶ 7. On November 6, 1997, Carolyn filed a motion to intervene in the ongoing proceedings between Suzette and Edward. Carolyn claimed that she was entitled to intervene pursuant to Miss. Rule of Civ. Proc. 24 because she had interests in the matter that could be adversely affected. Citing the absence of any authority for allowing a third party to intervene in a divorce action, the Chancellor denied Carolyn's motion to intervene.

DISCUSSION OF THE LAW

¶ 8. The denial of a Rule 24 motion to intervene is an appealable final order. Guaranty Nat'l Ins. Co. v. Pittman, 501 So.2d 377, 380 (Miss.1987). The standard of review of a chancellor's denial of a motion to intervene is abuse of discretion. Perry County v. Ferguson, 618 So.2d 1270, 1271-72 (Miss.1993).

¶ 9. The Chancellor noted that Carolyn had presented no authority for allowing a third party to intervene in a divorce matter. On appeal, Carolyn argues that she is entitled to intervene under Rule 24(a) which provides:

(a) Intervention of Right. Upon timely application, anyone shall be permitted to intervene in an action:

* * *

(2) when the applicant claims an interest relating to the property or transaction which is the subject of the action and he is so situated that the disposition of the action may as a practical matter impair or impede his ability to protect that interest, unless the applicant's interest is adequately represented by existing parties.

¶ 10. From Rule 24, this Court has fashioned a four-part test for allowing an intervenor to participate in a legal action: (1) he must make timely application, (2) he must have an interest in the subject matter of the action, (3) he must be so situated that the disposition of the action may as a practical matter impair or impede his ability to protect his interest, and (4) his interest must not already be adequately be represented by existing parties. Perry County v. Ferguson, 618 So.2d at 1271; Guaranty Nat'l Ins. Co. v. Pittman, 501 So.2d at 381.

¶ 11. Carolyn claims that she has an interest in this matter because she is now married to Edward and her marital situation would be affected by the Chancellor's order declaring the judgment of divorce between Edward and Suzette to be void. She also claims that her economic interests could also be affected in the underlying matter. She and Edward own a house and other real property together. Additionally, she claims an interest in his business. Carolyn has since separated from Edward, but is interested in preserving her marriage.

¶ 12. First, an economic interest alone in the litigation is insufficient to allow intervention under Rule 24. Perry County v. Ferguson, 618 So.2d at 1272 (citing New Orleans Public Service v. United Gas Pipe Line, 732 F.2d 452, 466 (5th Cir.1984)

). Thus, if Carolyn's claim for intervention was based solely on her property and monetary concerns, it necessarily fails when applying this lone factor.

¶ 13. Carolyn also asserts that she has an interest in the divorce proceedings because of her claimed marriage relationship with Edward. In order to intervene, a party must assert a "direct, substantial, legally protectable interest in the proceedings." Perry County v. Ferguson, 618 So.2d at 1272 (quoting League of United Latin Amer. Citizens v. Clements, 884 F.2d 185, 187 (5th Cir.1989)

).

¶ 14. The Court has long held that it is not permissible for a person "not a party to the suit, to intervene in a divorce suit." Hulett v. Hulett, 152 Miss. 476, 119 So. 581, 585 (1928). Additionally, the Court in Hulett held that "only the parties to the suit are concerned with the issues, and ... in the absence of a statute permitting such intervention, the same is not permissible." Id. "Divorce actions are for the exclusive use of the parties to the divorce itself. Third party intervention is not to be allowed." N. Shelton Hand, Jr., Mississippi Divorce, Alimony, and Child Custody. § 7.1 at 169 (5th edition, 1998).

¶ 15. However, in Jones v. Goolsby, 218 Miss. 847, 68 So.2d 89 (1953), where a putative widow had obtained a divorce decree by fraud upon the court prior to marrying decedent. This Court was presented the issue of whether siblings of the deceased could seek to declare the divorce invalid by original bill in the nature of a bill of review. The trial court ruled that the siblings could not attack the validity of the prior decree. This Court held that:

One who is not a party to the decree but a stranger thereto may not, in a collateral proceeding attack a decree that is valid on its face, even though it has been obtained by fraud, nor may he maintain an ordinary bill of review. Such a stranger's exclusive right and remedy is to attack the fraudulent decree by a bill in the nature of a bill of review. A stranger to such a decree obtained through fraud whose interests are substantially affected by the decree may attack the same and have it set aside, insofar as his interests are affected, by a direct attack upon it by original bill in the nature of a bill of review.

Jones, 68 So.2d at 93.

We note that Jones, appears to be some-what similar to the case at bar, in that, although it was not a case where the third parties sought the right of "intervention," rather, it was an attack by third parties by original bill in the nature of a bill of review upon the validity of a divorce decree which was entered by fraud upon the jurisdiction of the court. The Jones Court did not even use the word intervention. Nor did the Court mention Hulett in its analysis of the law. This Court, departed from the general rule by another mechanism and allowed the third party siblings the...