Dissolution of Pevey v. Pevey

• Decision Date: 28 August 2018
• Docket Number: NO. 2017-CA-01144-COA,2017-CA-01144-COA
• Parties: In the Matter of the DISSOLUTION OF the Marriage: Vanessa Marie PEVEY (Black), Appellant v. Dallas Kent PEVEY Jr., Appellee
• Court: Mississippi Court of Appeals

270 So.3d 250

In the Matter of the DISSOLUTION OF the Marriage: Vanessa Marie PEVEY (Black), Appellant

v.Dallas Kent PEVEY Jr., Appellee

NO. 2017-CA-01144-COA

Court of Appeals of Mississippi.

August 28, 2018

ATTORNEY FOR APPELLANT: STEPHEN L. BEACH III, JACKSON

ATTORNEY FOR APPELLEE: PAUL E. ROGERS, JACKSON

BEFORE GRIFFIS, P.J., FAIR AND TINDELL, JJ.

FAIR, J., FOR THE COURT:

¶ 1. A little more than a year after their divorce, Dallas Pevey sued his ex-wife, Marie Black, to modify the custody of their two children. The chancellor initially denied relief, but he expressed reservations with the decision. When Dallas filed a motion to reconsider, the chancery court gave him a hearing and heard additional testimony. Ultimately, the chancery court found that Marie had testified falsely at the initial hearing, and custody of the children was awarded to Dallas. Marie appeals and asserts numerous errors, both procedural and substantive. We find that the chancery court acted within its discretion, and so we affirm.

FACTS

¶ 2. Dallas and Marie divorced in 2014. Physical custody of their two young sons, born in 2008 and 2011, was awarded to Marie by agreement. In 2015, Dallas filed a petition to modify custody. Dallas alleged, among other things, that Marie was using illegal drugs, acting erratically, moving around frequently, and was not adequately caring for the children. After a hearing, the chancery court called it a "close case" and expressed concerns about the children's circumstances, but it found Dallas had failed to show a material change of circumstances adversely affecting the children. Dallas then filed what he styled a "Motion to Reconsider or, in the Alternative, to Amend Judgment pursuant to Rules 59 and 60" of the Mississippi Rules of Civil Procedure. Dallas contended he had newly discovered evidence and Marie had made numerous false statements at the hearing relating to her employment, living situation, and drug use. The chancery court held a hearing on the motion where it heard additional testimony and then rendered a new decision, awarding custody to Dallas.

DISCUSSION

1. Motion to Reconsider

¶ 3. Marie contends that the chancery court erred in granting Dallas's "motion to reconsider" because the claimed newly discovered evidence was lacking and could have been presented at the original hearing. Marie argues, essentially, that the chancery court gave Dallas a "do over" rather than holding him to the stricter standard that Rule 59 requires. But she is wrong about that legal standard.

¶ 4. It is true that, under the "new" Rules of Civil Procedure, the motion for reconsideration technically no longer exists. See Maness v. K & A Enters. of Miss. LLC , No. 2017-CA-00173, 250 So.3d 402, 418–12, 2018 WL 3791250, at *12 (¶ 68) (Miss. Aug. 9, 2018) (Maxwell, J., specially concurring and joined by four other justices). But the motion at issue here was properly made, and considered, under Rule 59. See id.

¶ 5. The chancery court's authority to modify the final judgment is "limited" by Rule 59, and it is a "higher" standard than under Rule 54(b), which allows a trial court to set aside interlocutory decisions for any reason it sees just. Id. at 419–20 (¶¶ 69, 71), 2018 WL 3791250, at *13 (¶¶ 69, 71). Still, Rule 59 permits a chancery court substantial discretion to reconsider its decisions—either on the motion of a party, or sua sponte "for any reason for which it might have granted a new trial on motion of a party." See M.R.C.P. 59(d). When a case has been tried to the court, Rule 59(a) expressly provides that a new trial may be granted "for any of the reasons for which rehearings have heretofore been granted in suits in equity in the courts of Mississippi." "The ground rules [for a Rule 59 motion in chancery court] include those that preexisted the Civil Rules regarding the grant or denial of trial court rehearings." Mayoza v. Mayoza , 526 So.2d 547, 549-50 (Miss. 1988). In In re Enlargement of Corporate Limits of Hattiesburg , 588 So.2d 814, 828 (Miss.1991), the supreme court explained that "[i]n equity, the chancellor has always had entire control of his orders and decrees and authority to modify or vacate any of them on motion of any party, or on his own, prior to final judgment." While the chancellor's order may have been styled a final judgment, it was rendered non-final by Dallas's filing of the motion to reconsider. See Wilson v. Mallett , 28 So.3d 669, 670 (¶ 3) (Miss. Ct. App. 2009). "It is long-settled that when a final judgment is reopened [under Rule 59,] the judgment remains subject to the control of the court until the motion is disposed of and, until that time, does not become final." E.E.O.C. v. United Ass'n of Journeymen & Apprentices of the Plumbing & Pipefitting Indus. of the U.S. & Canada, Local No. 120 , 235 F.3d 244, 250 (6th Cir. 2000).

¶ 6. To grant the motion under Rule 59, the chancery court need only be "convinced that a mistake of law or fact has been made, or that injustice would attend allowing the judgment to stand." See Maness , ––– So.3d at –––– (¶ 69), 2018 WL 3791250, at *13 (¶ 69) (Maxwell, J., specially concurring) (quoting McNeese v. McNeese , 119 So.3d 264, 272 (¶ 20) (Miss. 2013) ). This is an independent basis for granting the motion, distinct from the court's authority to order a new trial on the presentation of newly discovered evidence. Id. "When hearing a motion under Rule 59(e), a trial court proceeds de novo , if not ab initio . Recognizing that to err is human, Rule 59(e) provides the trial court the proverbial chance to correct its own error to the end that we may pretermit the occasion for a less than divine appellate reaction." Bruce v. Bruce , 587 So.2d 898, 904 (Miss. 1991). A Rule 59 motion is the "functional equivalent" of a motion for rehearing on appeal. King v. King , 556 So.2d 716, 722 (Miss. 1990).

¶ 7. Although Rule 59(a) refers to a "new trial," when a case was tried to the court, the formality of a full retrial is not required. Under Rule 59(a), the chancellor "may open the judgment if one has been entered, take additional testimony, amend findings of fact and conclusions of law or make new findings and conclusions, and direct the entry of a new judgment." Id.

¶ 8. Motions under Rule 59 should be distinguished from motions under Rule 60(b), which seek "extraordinary relief" from a judgment that is truly final. Rule 60(b) motions are for "extraordinary and compelling circumstances" and "should be denied when they are merely an attempt to relitigate the case." S. Healthcare Servs. Inc. v. Lloyd's of London , 110 So.3d 735, 742 (¶ 14) (Miss. 2013). "[T]he trial court has considerably broader discretionary authority under Rule 59(e) to grant relief than it does under Rule 60(b)." King , 556 So.2d at 722.

¶ 9. In Adams v. Green , 474 So.2d 577, 582 (Miss. 1985), the supreme court quoted its 1854 decision in Dorr v. Watson , 28 Miss. 383 (1854), which has been "consistently applied in case after case" ever since:

The granting of a new trial rests in a great measure upon the sound discretion of the court below, to be exercised under all the circumstances of the case with reference to several legal rules as well as the justice of a particular case. If a new trial be refused, a strong case must be shown to authorize the appellate court to say that it was error; and so, if it be granted, it must be manifest that it was improperly granted.

"[G]iven the important corrective role of new-trial motions, the discretion granted to the court is exceedingly broad." Barriffe v. Estate of Nelson , 153 So.3d 613, 618 (¶ 22) (Miss. 2014).

¶ 10. Sitting as an appellate court, we are in no position to second guess the chancellor on whether he made an error in his initial credibility determinations. We therefore can find no abuse of discretion in granting the Rule 59 motion.

2. Guardian Ad Litem Recommendation

¶ 11. Next, Marie contends that the chancellor erred in not considering the recommendation of the guardian ad litem. In fact, there was no recommendation to consider; the guardian ad litem in this case was appointed for the limited purpose of investigating Dallas's allegations of abuse and neglect. The guardian ad litem concluded that the children had been neither abused nor neglected while in Marie's care. But he specifically declined to make recommendations as to whether a material change in circumstances had occurred or who should receive custody if that became an issue, though he did answer some questions that touched on those issues. Marie's attorney asked the guardian ad litem whether he knew of "anything that is currently happening" that would justify a modification of custody. The guardian ad litem answered "no," but he made it clear he was limiting his answer to the current circumstances. The chancellor also asked the guardian ad litem whether there were any "per se" adverse impacts to the children. The answer to this question was a qualified yes. The guardian ad litem was concerned that one of the children had been tardy to school twenty-six times during a single semester, though he conceded that others may not weigh it as heavily as he did. When the chancellor announced his initial decision in this matter, he briefly addressed the tardiness issue, but he did not fully summarize the guardian ad litem's testimony or address it as a custody recommendation. In announcing the judgment on reconsideration, the chancellor only briefly referenced the guardian ad litem's testimony, to the effect that, even if it was accepted, it did not foreclose the possibility of modifying custody.

¶ 12. The Mississippi Supreme Court has held that the chancellor is required to include a summary of the guardian ad litem's recommendations when the appointment is mandatory, as it is in cases where abuse or neglect has been alleged. Borden v. Borden , 167 So.3d 238, 243 (¶ 11) (Miss. 2014). But the supreme court has also made it clear that a chancellor has discretion in determining the scope of the...