Queen v. Queen

• Decision Date: 02 August 1989
• Docket Number: No. 58701,58701
• Citation: 551 So.2d 197
• Parties: Raiford L. QUEEN v. Gloria Middleton QUEEN.
• Court: Mississippi Supreme Court

Page 197

551 So.2d 197

Raiford L. QUEEN v. Gloria Middleton QUEEN.

No. 58701.

Supreme Court of Mississippi.

Aug. 2, 1989.

As Corrected on Denial of Rehearing Oct. 18, 1989.

Stanley N. Merritt, Natchez, for appellant.

Nancy E. Garrison, Natchez, for appellee.

En Banc.

ROBERTSON, Justice, for the Court:

I.

Raiford L. Queen appeals a final judgment of divorce entered in the Chancery Court of Adams County, Mississippi, on June 26, 1987. Raiford complains not that his former wife, Gloria Middleton Queen, was granted a divorce on grounds of habitual cruel and inhuman treatment, but that he was ordered to pay her alimony--to be specific, $4,000.00 in lump sum alimony, payable in installments. The grounds for Raiford's appeal are procedural: that Gloria's complaint made no timely demand for alimony.

Gloria's original complaint did not claim alimony. The case went to trial in that posture. After the final judgment of divorce was entered, Raiford moved to alter or amend the judgment to delete "any and all awards of alimony." Gloria then moved for leave to amend her complaint to include a request for alimony. Rule 15(b), Miss.R.Civ.P. On September 9, 1987, the Chancery Court granted Gloria's motion and allowed her to amend "to include a request for alimony as included in the final decree of divorce." The Court denied Raiford's motion to alter or amend judgment.

This appeal has followed.

II.

A.

At the outset we note that Gloria, as Appellee, was four months tardy in filing her brief. When she did file it, the Court, upon Raiford's motion, ordered it stricken. Reversal is not required, however, if we may say with confidence there was no error below. See Dethlefs v. Beau Maison Development Corp., 458 So.2d 714, 717 (Miss.1984); State v. Maples, 402 So.2d 350, 353 (Miss.1981); Burt v. Duckworth, 206 So.2d 850, 853 (Miss.1968); Ford v. City of Pascagoula, 228 Miss. 265, 270-71, 87 So.2d 558, 589-60 (1956). This policy is but a function of the (quite rebuttable) presumption of correctness we accord orders and judgments of our trial courts. Edlin v. State, 533 So.2d 403, 410 (Miss.1988); Clark v. State, 503 So.2d 277, 280 (Miss.1987); Blackwell v. Sessums, 284 So.2d 38, 39 (Miss.1973); Shelton v. Kindred, 279 So.2d 642, 644 (Miss.1973); Walker v. Jones County Community Hospital, 253 So.2d 385 (Miss.1971).

In route to affirmance in Ford, we said

We have concluded ... on the basis of the appellant's assignment of errors and its brief in support thereof, together with a careful examination of the record in the case, that the filing of a brief by the appellee is unnecessary to the proper disposition of this appeal.

228 Miss. at 270, 87 So.2d at 559. The appropriateness of these words will become apparent.

B.

There is a second preliminary point. Where one such as Raiford seeks on appeal to complain that his adversary proved and obtained relief on a point not pleaded, he must show that he timely objected at trial. See Rule 103(a)(1), Miss.R.Ev.; Peterson v. State, 518 So.2d 632, 635 (Miss.1987); Jones v. Welford, 215 So.2d 240, 242 (Miss.1968); Liles v. May, 105 Miss. 807, 817, 63 So. 217, 218 (1913). Raiford cannot show anything of the sort for he has failed of a more basic duty. He has failed to present us with a transcript of the relevant portions of the trial. Upon giving his notice of appeal, Raiford received written notice from the court reporter that a transcript of the trial would cost him $164.00. On September 29, 1987, Raiford filed his "Designation of the Record" and expressly directed that there be "no transcription of the evidence in the case ... as this is an Appeal strictly on the pleadings."

It is elementary that a party seeking reversal of the judgment of a trial court must present this Court with a record adequate to show that an error of reversible proportions has been committed and that the point has been procedurally preserved. Moawad v. State, 531 So.2d 632, 635 (Miss.1988); Williams v. State, 522 So.2d 201, 209 (Miss.1988); Williams v. State, 522 So.2d 201, 209 (Miss.1988); Winters v. State, 473 So.2d 452, 457 (Miss.1985); Shelton v. Kindred, 279 So.2d 642, 644 (Miss.1973). While we overlook procedural niceties at times where fundamental rights are at stake, see Brooks v. State, 209 Miss. 150, 155, 46 So.2d 94, 97 (1950), we know of no authority for pretermitting the requirement of a record reflecting the error.

Raiford's failure to provide a transcript has a further effect of importance. Established law of appeal and error requires that we presume Gloria's evidence legally adequate that she may be awarded the alimony decreed. Wade v. Wade, 419 So.2d 584, 585 (Miss.1982); Fontaine v. Pickle, 254 So.2d 769, 770 (Miss.1971); Harvey v. Dunaway Bros., 232 Miss. 89, 100, 98 So.2d 143, 147-48 (1957); Tate v. Colvard, 174 Miss. 624, 628, 165 So. 433, 434 (1936).

III.

The Chancery Court awarded Gloria lump sum alimony. Raiford makes no claim of evidentiary insufficiency. Rather, in this his appeal "strictly on the pleadings," Raiford argues that Gloria's originally deficient complaint rendered the Chancery Court impotent to award alimony.

Prior to the advent of our Civil Rules, that is, before January 1, 1982, the Chancery Court had no authority to order payment of alimony absent an express demand therefor. This rule, however, was a function of our case law and was in no way mandated by statute. Diamond v. Diamond, 403 So.2d 129, 131 (Miss.1981); Fondren v. Batton, 348 So.2d 431, 432 (Miss.1977). The statute merely empowers the court to "make all orders ... touching the maintenance and alimony of the wife or the husband...." Miss.Code Ann. Sec. 93-5-23 (Supp.1988). The statutes are silent on the point of pleadings.

Rule 81(a)(9), Miss.R.Civ.P., provides that actions for divorce lie in two procedural realms. Primary are the procedural rules provided by statute. Miss.Code Ann. Secs. 93-5-1, et seq. (1972 and Supp.1988). The Mississippi Rules of Civil Procedure govern only to the extent that the statutory procedural scheme is silent, or at least not inconsistent. Rule 81(a)(9); Mayoza v. Mayoza, 526 So.2d 547, 548 (Miss.1988). Rule 81(a)(9) thus directs us to the Civil Rules to resolve today's appeal.

Rule 15(b), Miss.R.Civ.P., provides that issues not raised by the pleadings but tried by expressed or implied consent shall be treated as if they were raised by the pleadings. See Rankin v. Brokman, 502 So.2d 644, 646 (Miss.1987). Moreover, the court is empowered to allow amendments to conform to the evidence with regard to such issues "even after judgment." ¹ [Emphasis supplied] Mattina v. Rodolfich, 461 So.2d 751, 753 (Miss.1984). The rule further directs that the Court "be liberal in granting permission to amend when justice so requires." Red Enterprises, Inc. v. Peashooter, Inc., 455 So.2d 793, 796 (Miss.1984).

Where a party offers proof on an issue not pleaded, e.g., alimony in a divorce action, her opponent upon timely and proper objection may of right demand that the evidence be excluded. Nothing in the Mississippi Rules of Civil Procedure alters this rule of fundamental fairness. Rankin v. Brokman, 502 So.2d 644, 646 (Miss.1987); Bell v. First Columbus National Bank, 493 So.2d 964, 968 (Miss.1986); Johnson v. Franklin, 481 So.2d 812, 815 n. 4 (Miss.1985). Rule 15(b), Miss.R.Civ.P., is nothing more than a rule of waiver. Where a party offers no timely objection, we treat the issue as having been tried by implied consent. ² Atkinson v. National Bank of Commerce of Mississippi, 530 So.2d 163, 166 n. 2 (Miss.1988).

Yet we are told--not by Raiford but by our colleagues in dissent--that Rule 15(b) would offend Raiford's due process rights. Without doubt Raiford L. Queen and every other person who becomes a litigant before one of our courts enjoys a due process right to reasonable advance notice and the opportunity to be heard. See, e.g., Tulsa Professional Collection Services, Inc. v. Pope, 485 U.S. 478, 108 S.Ct. 1340, 99 L.Ed.2d 565 (1988); Mullane v. Central Hanover Bank & Trust Company, 339 U.S. 306, 314, 70 S.Ct. 652, 657, 94 L.Ed. 865, 873 (1950); Covington v. Covington, 459 So.2d 780, 782 (Miss.1984). But this right may be waived if not timely asserted. Miller v. Miller, 512 So.2d 1286, 1288 (Miss.1987); D.H. Overmyer Co., Inc. v. Frick Company, 405 U.S. 174, 185, 92 S.Ct. 775, 782, 31 L.Ed.2d 124, 133-34 (1972); N.L.R.B. v. Schwab Foods, Inc., 858 F.2d 1285, 1294 (7th Cir.1988); Thompkins v. Stuttgart School District No. 22, 787 F.2d 439, 440-41 n. 1 (8th Cir.1986). An analogous example is a non-resident's due process right that he not be subject to in personam jurisdiction absent certain minimum contacts with the forum state. See, e.g., Burger King Corp. v. Rudzewicz, 471 U.S. 462, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985); International Shoe Co. v. Washington 26 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945); Administrators of the Tulane Educational Fund v. Cooley, 462 So.2d 696 (Miss.1984). Yet no one doubts that, if that party appears and fails timely to assert this due process right, he has finally and effectively waived it. Rule 12(h)(1), Miss.R.Civ.P. Carpenter v. Allen, 540 So.2d 1334, 1337 (Miss.1989); O'Neill v. O'Neill, 515 So.2d 1208, 1211-12 (Miss.1987); Brown v. Brown, 493 So.2d 961, 963 (Miss.1986); Sangdahl v. Litton, 69 F.R.D. 641, 642-43 (S.D.N.Y.1976).

This brings us back to Raiford's failure to present us with a transcript. The time to object to consideration of alimony was when Gloria first sought to offer proof on the point. As an appellant Raiford is burdened to present us with a record reflecting that he timely raised the point and that the Chancery Court proceeded, his objection notwithstanding. His failure to present us a transcript is thus fatal to his appeal.

There is a second and related point. On May 22, 1987, after the Chancery Court had announced its decision but before entry of final judgment Raiford moved to reconsider on the point of alimony award. At no...