McChester v. McChester

• Decision Date: 10 March 2020
• Docket Number: NO. 2018-CP-01369-COA,2018-CP-01369-COA
• Citation: 300 So.3d 1035
• Parties: Willie J. MCCHESTER, Appellant v. Dorothy A. Edward MCCHESTER, Appellee
• Court: Mississippi Court of Appeals

300 So.3d 1035

Willie J. MCCHESTER, Appellant

v.Dorothy A. Edward MCCHESTER, Appellee

NO. 2018-CP-01369-COA

Court of Appeals of Mississippi.

March 10, 2020

Rehearing Denied August 18, 2020

ATTORNEY FOR APPELLANT: WILLIE J. McCHESTER (PRO SE)

ATTORNEY FOR APPELLEE: DOROTHY A. EDWARD McCHESTER (PRO SE)

BEFORE J. WILSON, P.J., TINDELL AND C. WILSON, JJ.

J. WILSON, P.J., FOR THE COURT:

¶1. Willie J. McChester attempts to appeal from a judgment granting a divorce to his ex-wife, Dorothy A. Edward McChester, on the ground of desertion. However, Willie failed to file a timely notice of appeal from that judgment. Therefore, we lack jurisdiction to review—and must dismiss the appeal from—the final judgment of divorce.

¶2. Willie did file a timely notice of appeal from the chancery court's subsequent order denying his motion for a new trial. However, Willie's motion for a new trial was not filed within ten days of the judgment, as required by Mississippi Rule of Civil Procedure 59. Therefore, the chancery court correctly held that Willie's motion could only be considered under Mississippi Rule of Civil Procedure 60, and the chancery court did not abuse its discretion by denying Willie's motion under Rule 60. Therefore, we affirm the order denying Willie's motion.

FACTS AND PROCEDURAL HISTORY

¶3. In December 2016, Willie McChester filed a pro se complaint for divorce against his wife, Dorothy, in the Harrison County Chancery Court. Willie alleged that he had been a resident of Harrison County for at least six months, though Dorothy remained a resident of Hinds County, where the couple resided prior to their separation. Willie sought a divorce based on irreconcilable differences. He did not allege any fault-based ground for divorce. In January 2017, Dorothy filed a pro se "response" to the complaint. Dorothy confirmed that she was a resident of Hinds County, and she requested a divorce based on irreconcilable differences and Willie's desertion of her. In February 2017, without leave of the court, Willie filed a pro se amended complaint for divorce, alleging both irreconcilable differences and desertion. In March 2017, Dorothy filed another pro se response in which she again requested a divorce based on irreconcilable differences and Willie's desertion of her. She denied that she had deserted Willie.

¶4. In August 2017, the court entered an order addressing a discovery dispute. The court ruled that venue and jurisdiction in Harrison County were proper based on Willie's residence. The court also stated that it would consider transferring the case to Hinds County, where the marital property was located and Dorothy still resided, if a written motion to transfer venue was filed. No such motion was filed, and the court administrator attempted to work with the pro se litigants to set a trial date. The case eventually was set for trial on March 13, 2018. Willie did not appear in court on that date. The court did not proceed with trial but instead entered an order on March 13, 2018, resetting the trial for May 30, 2018.

¶5. On May 22, 2018, Willie filed a motion to postpone the trial. Willie stated that he was scheduled to be admitted to the hospital for unspecified "treatment on his pre-existing health issues on May 25, 2018." He stated that his treatment was expected to require three to five days in the hospital followed by one to two weeks of recovery. Willie asked the court to provide him with potential trial dates in June or July. Willie did not attempt to notice his motion for a hearing prior to the trial date.

¶6. On May 30, 2018, Willie did not appear in court. The chancellor noted that Willie had failed to submit any documentation or medical evidence to support his request for a postponement. The chancellor asked Dorothy if she had any response to Willie's motion. Dorothy stated that she was prepared for trial and desired to move forward on her counterclaim for divorce based on desertion. She stated that it was a hardship for her to continue to have to travel from Jackson to Gulfport for court only to have Willie fail to appear. The chancellor then denied Willie's motion for a postponement based on the lack of supporting evidence and Willie's prior failure to appear. The chancellor ruled that Dorothy could proceed on her counterclaim for divorce based on desertion.

¶7. Dorothy then testified about the circumstances of Willie's departure from the marital home. The couple's problems began when Dorothy's grown daughter moved into the marital residence around December 2014. Willie objected that Dorothy's daughter was not paying rent, and he became hostile toward Dorothy and her daughter. Dorothy asked Willie to attend marital counseling with their pastor, but Willie attended only one session and then refused to continue. On March 18, 2015, Willie appeared at the marital home with a large moving truck and took the parties' mattress, washer, and dryer with him, all of which Dorothy had to replace. He also took a 2010 Chrysler 300, even though Dorothy had made all of the payments on the car. Willie never returned to the marital home, although Dorothy testified that she would have been willing to accept him back for at least one year after he left. After Willie left, Dorothy had to pay various personal and business debts that the couple had incurred during the marriage.¹ Based on Dorothy's testimony, the chancellor granted Dorothy a divorce on the ground of desertion.

¶8. The chancellor awarded the marital home (along with the mortgage) to Dorothy.² The chancellor acknowledged that the home had been converted to marital use and that Willie had made small financial contributions to it. However, Dorothy owned the home prior to the marriage and had primarily paid for it herself. The chancellor awarded the Chrysler 300 and the associated debt to Willie. The chancellor awarded each party the personal property in his/her respective possession. Finally, the chancellor ruled that each party would be responsible for any debt that he/she had incurred since the date of their separation. The chancellor announced her rulings from the bench on May 30, 2018, and a final judgment of divorce memorializing the chancellor's rulings was entered on June 4, 2018. The judgment and the docket sheet indicate that copies were mailed to the parties.

¶9. On June 25, 2018, the court received a letter from Willie in which he asked the court administrator to provide him with potential trial dates in June or July. Apparently, Willie had not received the final judgment of divorce. On July 5, 2018, the court received a second letter from Willie requesting potential trial dates. Willie complained that the court's failure to respond to his prior requests for trial dates showed a lack of "respect" for him.

¶10. Willie learned at some point that a final judgment had been entered, and on July 24, 2018, he filed a motion for a new trial. Willie asked for a new trial on the ground that his motion for a postponement of the trial should have been granted. He also asserted that he did not receive a copy of the final judgment of divorce because it was sent to his old mailing address and to an email account that he "had closed ... on or about April 1, 2018."

¶11. The court heard Willie's motion for a new trial on September 6, 2018. Willie alleged that some of Dorothy's trial testimony had been untrue. He also asserted that he did not receive a copy of the final judgment of divorce because the clerk sent the judgment to his old mailing address. Willie argued that the clerk should have known that he had moved because he had included his new address below the signature line of his motion to postpone the trial.³ However, the chancellor stated that Willie had an obligation to inform the clerk of his new address because the clerk could not check every filing for new addresses.

¶12. The court denied Willie's motion on September 7, 2018. The court ruled that the motion was not a timely motion for a new trial because it was filed "well-outside the ten day window prescribed by" Mississippi Rule of Civil Procedure 59. In addition, the court ruled that Willie had presented no evidence that would entitle him to relief under Mississippi Rule of Civil Procedure 60. On September 26, 2018, Willie filed a notice of appeal from both "the final judgment entered ... on June 4, 2018, and the denial of [his motion for a new trial], by order entered on September 7, 2018."

ANALYSIS

¶13. Willie's brief on appeal primarily attacks the final judgment of divorce and the chancery court's denial of his motion to postpone the trial. However, Willie failed to file a timely notice of appeal from the final judgment of divorce. The judgment was entered on June 4, 2018, meaning that Willie had until July 5, 2018 to appeal. M.R.A.P. 4(a) (stating that a "notice of appeal ... shall be filed ... within 30 days after the date of entry of the judgment or order appealed from"). The deadline for filing a notice of appeal is mandatory and jurisdictional. M.R.A.P. 2(a), (c) ; Bailey v. Chamblee , 192 So. 3d 1078, 1081-82 (¶11) (Miss. Ct. App. 2016). Willie filed his notice of appeal 114 days after judgment was entered in the trial court. Therefore, the notice of appeal was untimely, and this Court lacks jurisdiction to review the underlying final judgment of divorce. DeSoto County v. Standard Constr. Co. , 283 So. 3d 102, 108 (¶20) (Miss. 2019).

¶14. Although a "timely motion" for a new trial under Rule 59 of the Mississippi Rules of Civil Procedure will extend the time for filing a notice of appeal from the underlying judgment, M.R.A.P. 4(d) (emphasis added), Willie's motion for a new trial was not timely. "A motion for a new trial shall be filed not later than ten days after the entry of judgment."

M.R.C.P. 59(b).⁴ In this case, Willie's motion for a new trial was filed forty-eight days after the chancery court entered the final judgment of divorce.⁵ Therefore, as the chancery court correctly ruled, Willie's motion was not timely,...