McNeese v. McNeese

• Decision Date: 22 August 2013
• Docket Number: No. 2012–CP–00174–SCT.,2012–CP–00174–SCT.
• Citation: 119 So.3d 264
• Parties: Kenton H. McNEESE v. Katherine J. McNEESE.
• Court: Mississippi Supreme Court

119 So.3d 264

Kenton H. McNEESE

v.Katherine J. McNEESE.

No. 2012–CP–00174–SCT.

Supreme Court of Mississippi.

April 25, 2013.

Rehearing Denied Aug. 22, 2013.

Kenton H. McNeese, appellant, pro se.

Sheila Havard Smallwood, attorney for appellee.

Before WALLER, C.J., KITCHENS and COLEMAN, JJ.

COLEMAN, Justice, for the Court:

¶ 1. Kenton and Katherine McNeese executed a consent agreement to an irreconcilable differences divorce, and the chancellor granted the divorce on that ground. Kenton filed a motion to reconsider, which was denied. Kenton appeals the denial of his post-trial motion to reconsider as well as the grant of divorce based on irreconcilable differences. Finding no error, we affirm the chancery court.

Facts and Procedural History

¶ 2. Kenton and Katherine (“Katye”) McNeese were married on December 9, 2006. They have one child, Hattie, born in January 2009. Katye filed for divorce on October 1, 2010, alleging habitual cruel and inhuman treatment, or in the alternative, irreconcilable differences. The parties agreed to a temporary custody agreement pending trial. On the first day of trial, the parties entered into a consent agreement to an irreconcilable differences divorce. They agreed to let the court determine child custody, visitation, support issues, division of marital assets, and alimony.

¶ 3. Trial was held on April 11, 2011, and June 1, 2011. The chancellor rendered an opinion on September 2, 2011, and granted the irreconcilable differences divorce pursuant to the consent agreement. He granted physical custody of Hattie to Katye, set out the guidelines for visitation, ordered Kenton to pay $588 per month for child support, and divided property between the parties; alimony and attorneys' fees were not awarded to either party.

¶ 4. Katye filed a Motion to Reconsider, Motion for a New Trial, or to Alter or Amend Judgment, and Motion for Stay of Proceedings to Enforce a Judgment on the ground that Kenton had failed to disclose certain items in the required financial disclosures. Kenton did not respond or file a separate motion to reconsider. A hearing on Katye's motion was held on September 29, 2011. On October 12, 2011, the court entered an order specifically addressing the issues raised in Katye's motion to reconsider, then entered an Amended Opinion and Final Judgment to make several clarifications to the original opinion.

¶ 5. By this time, Kenton had fired his attorney. On October 13, 2011, Kenton filed, pro se, a Motion to Reconsider, Motion for a New Trial, to Alter or Amend Judgment, and Motion for Stay of Proceedings to Enforce a Judgment, alleging that: (1) he was represented poorly by prior counsel; (2) Katye and others who testified on her behalf had defrauded the court through their perjured testimony; and (3) opposing counsel had violated her oath as an attorney and as a municipal judge. He requested a new trial, new custody arrangements, and that costs and attorneys' fees be assigned to Katye.

¶ 6. At the end of October, Katye remarried her first husband, Michael Graves. Upon learning that Katye had remarried, Kenton wanted to withdraw his consent to the irreconcilable differences divorce. Between November 8 and 17, Kenton filed, pro se, seven subpoenas; a Motion for Contempt, Sanctions, and Relief; a Motion to Expunge Order of Withholding; a Motion to Expunge Consent Agreement to Irreconcilable Differences Divorce; and a Cross–Complaint and Counter–Complaint for Divorce. A hearing on Kenton's motion to reconsider took place on November 21, 2011. On January 4, 2012, the chancellor entered a Final Order denying Kenton's motion to reconsider and dismissing or denying all other motions on the grounds of res judicata and estoppel. Kenton filed a Notice of Appeal on January 30, 2012.

Discussion

¶ 7. Kenton, pro se, asserted ten issues on appeal, which have been summarized and reorganized for the purpose of discussion:

1. Whether the chancellor erred in granting the divorce on the ground of irreconcilable differences;

2. Whether the chancellor erred by not allowing Kenton to amend his pleading to match the evidence as allowed under Rule 15(b) of the Mississippi Rules of Civil Procedure, including the withdrawal of the irreconcilable differences consent agreement;

3. Whether the chancellor erred in not allowing evidence to be submitted at the hearing on Kenton's motion for a new trial;

4. Whether the chancellor erred in allowing withholdings from Kenton;

5. Whether the chancellor erred in holding Kenton in contempt and requiring him to pay attorney's fees;

6. Whether the chancellor erred in not reporting Katye's felony bigamy and perjury to the proper authorities, as she mislead the court during trial, and she remarried prior to the final disposition of the motion for a new trial;

7. Whether the chancellor erred in not determining assets or liabilities as marital or nonmarital;

8. Whether the chancellor erred in allowing questioning of Kenton's ex-wife as to matters protected under the spousal privilege;

9. Whether the chancellor erred in not reporting counsel for discipline; and

10. Whether the chancellor erred in not granting involuntary dismissal of Katye's claim due to her attorney's violation of certain rules of procedure.

Katye asserts that the majority of the issues set forth in Kenton's brief are not properly before this Court. She also maintains that the consent agreement was valid, and that the chancellor did not err in granting the divorce on the ground of irreconcilable differences or in denying Kenton's post-trial motion to reconsider.

¶ 8. A chancellor's determinations in an irreconcilable differences divorce will not be disturbed as long as the findings are “supported by substantial evidence unless the chancellor abused his discretion, was manifestly wrong, clearly erroneous[,] or an erroneous legal standard was applied.” Sanderson v. Sanderson, 824 So.2d 623, 625–26 (¶ 8) (Miss.2002) (quoting Kilpatrick v. Kilpatrick, 732 So.2d 876, 880 (¶ 13) (Miss.1999)). Additional standards of review will be discussed as needed.

I. Whether Kenton's appeal and the issues presented therein are properly before this Court.

¶ 9. As a preliminary matter, we address Katye's assertions that a majority of Kenton's issues are not properly before the Court based on his Notice of Appeal, and that his appeal should be dismissed for his failure to file record excerpts.

A. Notice of Appeal

¶ 10. Katye asserts that most of the issues raised in Kenton's brief should not be considered because they were not designated in his Notice of Appeal and are not properly before this Court. Kenton's Notice of Appeal stated that he appealed “from the final judgment entered in this case on January 4, 2012, and the denial of the Motion for Judgment Notwithstanding the Verdict or, in the Alternative, for New Trial.” As we understand it, Kenton is referring to the denial of his motion to reconsider or for a new trial, as he did not file a motion for judgment notwithstanding the verdict. Some of the issues presented on appeal were included in Kenton's motion to reconsider, but the others were included generally in his motion for contempt, motion to expunge the consent agreement, and motion to expunge the order of withholding. Those motions were not designated specifically in the Notice of Appeal. However, the chancellor's order dated January 4, 2012, generally denied those motions, and the January 4 order was designated in the Notice of Appeal.

¶ 11. Rule 3(c) of the Mississippi Rules of Appellate Procedure provides that a notice of appeal “shall designate as a whole or in part the judgment or order appealed from.” Miss. R.App. P. 3(c). However, this Court has held that if the “statement of issues and appellant brief clearly show” that a certain order or issue is being appealed, we will consider the merits of the issue. Fletcher v. Lyles, 999 So.2d 1271, 1277 (¶ 25) (Miss.2009) (citing K.D.F. v. J.L.H., 933 So.2d 971, 974 n. 2 (Miss.2006)). See also Herndon v. Miss. Forestry Comm'n, 67 So.3d 788, 795 (¶ 19) (Miss.Ct.App.2010). Under Rule 3(c), “[a]n appeal shall not be dismissed for informality of form or title of the notice of appeal.” Fletcher, 999 So.2d at 1277 (¶ 25) (quoting Miss. R.App. P. 3(c)). Because the chancellor's January 4 order generally denied Kenton's post-trial motions, which included the issues raised on appeal, and in light of this Court's standard set forth in Fletcher, we will consider the merits of each of Kenton's issues on appeal, unless they are otherwise procedurally barred.

B. Record Excerpts

¶ 12. Katye asserts that Kenton's appeal should be dismissed for failure to comply with Rule 30 of the Mississippi Rules of Appellate Procedure, which requires parties to file record excerpts with briefs on appeal. Katye is correct that Kenton failed to file record excerpts with his initial brief. However, upon recognition of the error, Kenton filed record excerpts and corrected the mistake. Katye did not provide any support for her assertion that the appeal should be dismissed for failure to file record excerpts, and “this Court does not consider unsupported assignments of error.” O.W.O. Investments, Inc. v. Stone Inv. Co., Inc., 32 So.3d 439, 446 (¶ 19) (Miss.2010); Touchstone v. Touchstone, 682 So.2d 374, 380 (Miss.1996).

II. Whether the consent agreement was valid, and whether the chancellor erred in granting the divorce on irreconcilable differences.

¶ 13. Kenton claims that the parties' consent agreement to an irreconcilable differences divorce was invalid because it was not properly notarized and because the agreement was not signed by counsel. On that basis, he argues the chancellor erred in granting the divorce on the ground of irreconcilable differences. Katye claims that the consent agreement is not subject to appellate review, but if this Court reviews it, it met the statutory requirements for validity.

¶ 14. Mississippi Code Section 93–5–2 pertains to consent agreements for...