Lowery v. Lowery

• Decision Date: 22 June 1995
• Docket Number: No. 93-CA-00917-SCT,93-CA-00917-SCT
• Citation: 657 So.2d 817
• Parties: Rebecca Lynn LOWERY, v. Michael Anthony LOWERY.
• Court: Mississippi Supreme Court

Page 817

657 So.2d 817

Rebecca Lynn LOWERY, v. Michael Anthony LOWERY.

No. 93-CA-00917-SCT.

Supreme Court of Mississippi.

June 22, 1995.

Doyle L. Coats, Gulfport, for appellant.

Martha Del Guillotte Carson, D'Iberville, for appellee.

Before HAWKINS, C.J., and PITTMAN and BANKS, JJ.

BANKS, Justice, for the Court:

This is an appeal brought by Rebecca Lowery contesting the trial court's grant of divorce and child custody to her husband Michael Lowery. We find that the court erred under Rule 52 of the Rules of Civil Procedure when it failed to provide findings of fact and conclusions of law when requested to do so by Rebecca, as the court was then mandatorily required to make such findings. We therefore reverse and remand this case to the trial court for the limited purpose of providing findings of fact and conclusions of law.

I.

Michael Lowery (Michael) and Rebecca Lowery (Rebecca) were married on May 30, 1986. They bore one child, Cassie Lowery (Cassie), during their marriage who was five years old at the time of court proceedings. Michael filed a complaint for divorce on August 21, 1991 alleging cruel and inhuman treatment, and in the alternative, irreconcilable differences as grounds for divorce. In addition, he requested custody of Cassie. Rebecca filed a counter-claim for divorce alleging habitual cruel and inhuman treatment and, in the alternative, irreconcilable differences. She also requested custody of Cassie.

The matter was brought to trial on September 11, 1992. After hearing testimony, the court entered its opinion in the matter on February 3, 1993, and on February 22, 1993 the court entered its judgment granting a divorce to Michael based upon habitual cruel and inhuman treatment. The court awarded Michael custody of Cassie, and granted Rebecca visitation rights.

On March 2, 1993, Rebecca filed a motion for new trial and requested that the court supply findings of fact and conclusions of law for its decision. At the hearing on the motion, Rebecca argued that the record does not support the grant of divorce. Counsel asserted "we have looked at the judgment without the findings of fact and conclusions of law. It is difficult, if not impossible, without looking at the record to do that, but we are having to base that on the pleadings, the briefs that have been submitted, and what our client has told us." The court responded:

If this case goes to the Supreme Court I think they would be entitled to know more of what I based my rulings on, I based it on the law in evidence. But I will specify what I did base it on. Sometimes I hate doing that because quite frankly you have to say things about people you would, perhaps, rather avoid, if you could. But it is obvious in this case I am not going to be able to avoid that. Although, both of the attorneys before briefed this case very well. But, certainly, I would be glad to look at anything additional y'all had.

On July 13, 1993, the court denied Rebecca's motion for new trial without supplying findings of fact or conclusions of law. Aggrieved, Rebecca appealed to this Court on August 10, 1993.

II.

Among other errors, Rebecca contends that although she requested that the court provide findings of fact and conclusions of law pursuant to Rule 52 of the Mississippi Rules of Civil Procedure, the court failed to comply. Based upon the court's failure, Rebecca contends that the judgment has no factual or legal basis and should be set aside.

Rebecca's contention is well taken. Prior to its amendment, Rule 4.01 of the Uniform Chancery Court Rules provided that:

[i]n all cases where it is desired that the Chancellor shall find the facts specially and state separately his conclusions of law thereon, a request therefor must be made either in writing, filed among the papers in the cause, or dictated into the court reporter's record and called to the attention of the Chancellor before he has decided the case; otherwise the right to such finding shall be deemed to have been waived.

(emphasis supplied).

Rule 4.01 was drafted under the provisions of Section 11-5-87 Mississippi Code Annotated (1972) which authorized any party to request the court to separately state its findings of fact and conclusions of law. Thus, under the old rule, a party was required to request findings of fact and conclusions of law prior to a court rendering its judgment or risk waiver of the request. McIntosh v. McIntosh, 378 So.2d 629, 630 (Miss.1980).

Section 11-5-87 was repealed in 1991 and Rule 4.01 was amended to no longer require requests prior to a court's decision in a particular case. Rule 4.01 currently provides that a "Chancellor shall find the facts specially and state separately his conclusions of law" in all actions where it is required or requested in writing pursuant to Rule 52 of the Mississippi Rules of Civil Procedure. Rule 52 provides that:

[i]n all actions tried upon the facts without a jury the court may, and shall upon the request of any party to the suit or when required by these rules, find the facts specifically and state separately its conclusions of law therein and judgment shall be entered accordingly.

(emphasis supplied).

In Tricon Metals & Services, Inc. v. Topp, 516 So.2d 236, 239 (Miss.1987) we addressed a trial court's responsibility to provide findings of fact and conclusions of law absent a party's request to do so. We held that the word "may" in Rule 52 should be...