Klein v. McIntyre

• Decision Date: 16 October 2007
• Docket Number: No. 2006-CP-01775-COA.,2006-CP-01775-COA.
• Parties: Alison Suzanne Bass KLEIN, Appellant v. Michael Ray McINTYRE, Jr., Appellee.
• Court: Mississippi Court of Appeals

966 So.2d 1252

Alison Suzanne Bass KLEIN, Appellant v. Michael Ray McINTYRE, Jr., Appellee.

No. 2006-CP-01775-COA.

Court of Appeals of Mississippi.

October 16, 2007.

Alison Suzanne Bass Klein, Appellant, pro se.

Gary L. Honea, Magnolia, attorney for appellee.

Before LEE, P.J., GRIFFIS and ISHEE, JJ.

GRIFFIS, J., for the Court.

¶ 1. Alison Susan Bass Klein appeals an order from the Chancery Court of Amite County transferring full custody of her two minor children to her ex-husband, Michael Ray McIntyre, Jr. Klein asserts that the chancellor erred by: (1) entering a consent judgment when she did not agree to the terms of the order, and (2) not considering the best interest of the children before modifying the custody agreement. We dismiss the appeal and remand the case to the Chancery Court of Amite County for further proceedings consistent with this opinion.

FACTS

¶ 2. Klein and McIntyre were married on July 13, 1994. They had two children, Michael Ray McIntyre, III and Brandon James McIntyre. After a period of separation, their divorce became final on March 14, 2005. Klein and McIntyre were awarded joint custody of their children by their agreement which was incorporated into the divorce decree. Some time after the divorce, Klein married her current husband and moved to St. Francisville, Louisiana.

¶ 3. McIntyre then filed a complaint to modify custody alleging that a substantial and material change in circumstances had occurred such that the joint custody arrangement was unworkable. The chancellor entered two orders, both prepared by McIntyre's attorney. No transcript of any hearing is before this Court.

¶ 4. The first order was executed by the chancellor on September 11, 2006, and was filed with the clerk on September 12th. This order states that "the parties hav[e] announced to the Court prior to a trial of this matter that they had reached an agreement with regards to all matters in controversy. . . ." The order concluded that a substantial and material change in circumstances has occurred and that custody should be modified and full custody granted to McIntyre. The order also set a visitation schedule. The order concluded with the statement that the chancellor reserved jurisdiction over financial matters and ordered financial information submitted within ten days for child support school tuition and other financial matters. The order then contains the following:

THUS ORDERED, ADJUDGED AND DECREED on this, the 15th day of February, A.D., 2006 and reduced to writing on 9-11-06.

The order was signed by the chancellor. The order also contains signature lines for the attorneys. Before their signature, the order states "Approved as to Form:" then each attorney signed the order, and Klein's attorney hand wrote "Approved as to Form Only."

¶ 5. The second order was also executed by the chancellor on September 11, 2006, and was filed with the clerk on September 13th. This order states that the court after considering McIntyre's petition to modify custody "does hereby FIND, ADJUDICATE, and DECREE, as follows:". The chancellor then modified the support owed and required (1) each parent to pay one-half of the medical expenses and one-half of private school tuition, and (2) Klein to pay $200 per month in child support. As with the first order, the second order also contains signature lines for the attorneys. Before their signature, the order states "Approved as to Form:" then each attorney signed the order, and Klein's attorney hand wrote "Approved as to Form Only." The second order does not contain any language to indicate that the parties agreed to the relief granted.

¶ 6. As part of her pro se brief, Klein submitted a letter from her attorney dated August 30, 2006. The letter is dated before the orders were executed and filed with the clerk. The letter states:

I have enclosed copies of the agreed judgment and of the judgment reflecting the recent ruling by the Judge in your case. You will note that I signed them, but stated they were approved as to form only which means that you do not agree with the content of the orders.

Your husband called today and advised my office that you planned to file an appeal of the judge's ruling yourself. As such, I wanted to make sure you were aware of the requirements and time frames associated with this appeal. . . .

I am sorry that you are unhappy with the outcome of your case. Under the circumstances, I do feel that the judge considered all the issues we presented to her and took them into account in making her decision. . . .

It is from both of these orders that Klein appeals.

STANDARD OF REVIEW

¶ 7. Matters involving child custody are within the sound discretion of the chancellor. Sturgis v. Sturgis, 792 So.2d 1020, 1023(¶ 12) (Miss.Ct.App.2001). A chancellor's findings of fact will not be disturbed unless manifestly wrong or clearly erroneous. Sanderson v. Sanderson, 824 So.2d 623, 625(¶ 8) (Miss.2002). This Court will not disturb the findings of a chancellor when supported by substantial credible evidence unless the chancellor abused her discretion, was manifestly wrong, clearly erroneous, or an erroneous legal standard was applied. Id. at 625-26(¶ 8). Legal questions are reviewed de novo. Russell v. Performance Toyota, Inc., 826 So.2d 719, 721(¶ 5) (Miss.2002).

ANALYSIS

1. Was the chancellor clearly erroneous in finding that Klein agreed to the consent judgment?

¶ 8. Klein argues that the chancellor erred in entering the orders regarding custody and support because she did not agree to the content of those orders. Specifically, she claims that because her attorney signed the orders "Approved as to Form Only," she should not be bound by the terms of the agreement. McIntyre's response is that the September 12th and 13th orders were an agreement between the parties.

¶ 9. Before we begin our analysis, we must recognize that our review must consider the fact that Klein acts as her own counsel in this appeal, arguably she acted as her own counsel since before the orders were entered. In Harvey v. Stone County Sch. Dist., 862 So.2d 545, 549(¶ 9) (Miss.Ct. App.2003), this Court ruled:

The supreme court has held that "pro se parties should be held to the same rules of procedure and substantive law as represented parties." Dethlefs v. Beau Maison Dev. Corp., 511 So.2d 112, 118 (Miss.1987). However, the supreme court has also held that we will "credit not so well pleaded allegations so that a [pro se] prisoner's meritorious complaint may not be lost because inartfully drafted." Ivy v. Merchant, 666 So.2d 445, 449 (Miss.1995). Our courts will also allow the same deference to pro se litigants in civil actions. Zimmerman v. Three Rivers Planning and Dev. Dist., 747 So.2d 853, 856(¶ 6) (Miss.Ct.App. 1999).

Later in Harvey, we stated, "[i]n McFadden v. State, 580 So.2d 1210, 1214 (Miss. 1991) (quoting Haines v. Kerner, 404 U.S. 519, 521, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972)), the supreme court recognized that pleadings filed by pro se litigants are to be held `to less stringent standards than formal pleadings drafted by lawyers.'" Harvey, 862 So.2d at 551(¶ 17).

¶ 10. Our review is limited by the fact that we have no transcript of the proceedings that occurred before the chancellor. The record contains only a copy of the docket sheet, the September 12, 2006 order, the September 13, 2006 order, and the notice of appeal.

¶ 11. McIntyre's "Statement of the Case" summarizes the state of the proceedings before us as follows:

Due to the fact there was no transcript taken in the modification hearing in this case, and further that in both the original Final Decree of Divorce, containing property settlement, child custody and support agreements, and the modification Orders appealed from in this appeal were of an agreed nature, [McIntyre] will not present a formal Statement of the Case here. Rather, he will incorporate the Statement of the Evidence as found in his Supplemental Record Excerpts filed with his Brief.

McIntyre's "Supplemental Record Excerpts" added the parties' "Final Decree of Divorce" and a document entitled "Statement of the Evidence under Miss. R.App. P., Rule 10(c)",¹ signed by McIntyre's attorney. In the statement, McIntyre's attorney provided a recitation of the proceedings between the parties prior to the motion for modification. The statement provides the following information about the hearings on the motion for modification:

At the hearing on the various pleadings presented on the modification issues, in the absence of a direct transcript of same, due to the facts the parties announced a settlement, McIntyre respectfully submits the Chancellor made the following findings:

1. That there had been a material change of circumstances between the parties since the Final Decree of Divorce;

2. That full custody of Michael and Brandon was awarded to McIntyre, subject to the outlined visitation rights of Klein;

3. Klein was ordered to pay the amount of $200.00 per month in child support;

4. Klein was ordered to pay one-half the school tuition and related expenses;

5. Klein was ordered to pay one-half of any non-covered medical expenses of the minor children; and

6. Other incidental items were ordered in the two Orders of the Court.

¶ 12. McIntyre argues that the orders were agreed to by the parties. McIntyre claims that Klein is simply trying to relitigate issues that were settled by the agreed judgments entered by the chancellor. We must look to the chancellor's orders.

¶ 13. The first order, signed by the chancellor on September 11, 2006, appears to have been agreed to by the parties at an earlier date. The order states:

THUS ORDERED, ADJUDGED AND DECREED on this, the 15th day of February, A.D., 2006 and reduced to writing on 9-11-06.

The order was signed by the chancellor seven months after it was apparently discussed or agreed upon at a hearing before the chancellor. If we had a transcript of the events that occurred at the February 15th...