Shavers v. Shavers, 2000-CA-01867-SCT.
| Decision Date | 22 May 2008 |
| Docket Number | No. 2000-CA-01867-SCT.,No. 2001-CA-00164-SCT.,No. 2001-CA-01519-SCT.,2000-CA-01867-SCT.,2001-CA-00164-SCT.,2001-CA-01519-SCT. |
| Citation | 982 So.2d 397 |
| Parties | John E. SHAVERS v. Ann B. SHAVERS. |
| Court | Mississippi Supreme Court |
B.G. Perry, attorneys for appellant.
Damon Scott Gibson, Herbert J. Stelly, Sr., Gulfport, attorneys for appellee.
En Banc.
¶1. This appeal involves three consolidated appeals filed by John E. Shavers (John) arising from the divorce action filed by his wife, Ann Shavers (Ann). Prior to the final judgment of divorce, Ann filed two separate motions to find John in contempt of the trial court's temporary order. John was found in contempt on both occasions, and he filed a notice of appeal with this Court as to each judgment of contempt. John also has filed a notice of appeal as to the final judgment of divorce.
¶2. Since the appeals were filed, John has been placed into involuntary bankruptcy proceedings. Because the automatic stay pursuant to 11 United States Code, Section 362, does not operate as a stay for the continuation of a civil action for the dissolution of marriage, we proceed with the issues before us on appeal. See 11 U.S.C. § 362(b)(2)(A)(iv). Nothing in this opinion is to be construed as a determination of the division of property.
¶3. Finding that John has abandoned the issues on appeal with regard to the judgments of contempt in consolidated appeals numbered 2000-CA-01867-SCT and 2001-CA-00164-SCT, we dismiss those appeals. Further, we find no merit in the issues John raised in his third consolidated appeal and, therefore, affirm the final judgment of divorce.
¶4. Ann and John were married in Long Beach, Mississippi, on June 8, 1968. The couple had one child together, John Anthony Shavers, who was not a minor at the time of the parties' divorce proceedings. In January of 1999, after thirty years of marriage, Ann filed a complaint for divorce against John. The complaint alleged habitual cruel and inhuman treatment and irreconcilable differences in the alternative. After a two-day hearing, a temporary order was entered on July 23, 1999.
¶5. On August 18, 1999, Ann filed her amended complaint, adding an additional fault ground of adultery. John filed his answer to the amended complaint contemporaneously with his counter-complaint for divorce on the grounds of adultery, habitual cruel and inhuman treatment, or irreconcilable differences in the alternative.
¶6. Due to the extensive nature of the parties' assets as they existed at the time, the chancery court sought the parties' agreement on the appointment of an expert to value their property. In its order of July 23, 1999, the chancery court directed that James Koerber would be appointed as the chancery court's expert valuator in the event the parties were unable to agree. The chancery court also ordered that John pay the retainer fee of the expert. Ann and John were unable to agree, and Koerber was appointed as the expert valuator by operation of the order.
¶7. On March 10, 2000, the chancery court entered another order addressing Koerber's duties in the divorce action. This order affirmed his appointment as the chancery court's expert and gave him the position of a master pursuant to Rule 53 of the Mississippi Rules of Civil Procedure.
¶8. On May 8, 2000, the chancery court entered an order directing Koerber to employ an equipment appraiser, Sanderson, to replace Guy Blankenship, who was appointed by the March 10, 2000, order. Further, the May 8, 2000, order again directed John to advance the costs of Sanderson's fee in the amount of $4,000 and to advance the additional costs of Koerber's fees of $8,500 and $574. The chancery court reserved the assessment of these costs between Ann and John until the final hearing.
¶9. On August 10, 2000, Ann filed a motion to cite John for contempt for failing to advance the appraiser's fees as directed by the May 8, 2000, order. Ann also requested that she be permitted to sell real property in order to meet her financial needs due to the protracted nature of the litigation. John filed a motion to remove Koerber as the expert valuator and to terminate support payments to Ann.
¶10. A hearing on Ann's complaint and John's motions was held on October 2 and 3, 2000. The chancery court denied John's motion to remove Koerber and found John in contempt of court for failing to advance the appraiser's fees as directed. The chancery court stayed John's punishment for contempt pending compliance and ordered John to provide Koerber with financial documents and information within ten days. Ann was permitted to borrow funds against a piece of real property and her support was reduced to $500 per week upon her receiving the funds from the loan. John filed his notice of appeal on November 1, 2000.
¶11. John began to file other motions with the chancery court such as: a Motion to Dismiss the Divorce; a Motion to Recuse Herb Stelly, Sr.; a Motion to Set Application for Disqualification and an Amendment to Application for Disqualification (requesting the judge to remove or recuse himself); and a Motion to Withdraw Motion to Dismiss Divorce.
¶12. On December 14, 2000, Ann filed another complaint to cite John for contempt for failing to comply with the provisions of the October 3, 2000, order which directed John to furnish Koerber with financial information. John was ordered to supply the identified financial documentation within ten days of October 3, 2000. As of the date of Ann's contempt complaint, John had not complied. The divorce trial had been scheduled to begin on January 22, 2001, and Koerber was unable to complete his valuation with the information he had received from John.
¶13. On January 2, 2001, John filed a Notice of Federal Removal. Attached to this pleading was a Notice of Federal Removal which had been filed with the Federal District Court for the Southern District of Mississippi, in Biloxi, on the same day. Attached to the Notice of Federal Removal filed with the federal court was a copy of Ann's contempt complaint filed December 14, 2000. John did not attach any other pleadings, claims, or complaints to his Notice of Federal Removal with the federal court.
¶14. A hearing took place in the chancery court on January 4, 2001, on the various motions filed by John and the contempt complaint filed by Ann on December 14, 2000. The chancery court found most of John's motions to be without merit. At this hearing, John asked the chancery court to set an appeal bond with respect to his appeal filed November 1, 2000. The chancery court set the bond at $7,000, which John filed with the clerk on January 5, 2001.
¶15. Additionally, at this hearing, the chancellor found John in contempt for his failure to provide the documents ordered to be produced to Koerber by the October 3, 2000, order. The chancellor stayed the punishment pending compliance by John. John filed his notice of appeal on January 23, 2001.
¶16. John's notice of appeal indicates that his appeal of the January 4, 2000, order, which was entered on January 8, 2000, is limited exclusively to paragraphs 8(E) and 13. Paragraph 8(E) deals with the citation of contempt for failing to produce to Koerber the financial information, and paragraph 13 pertains to the award of attorneys' fees to Koerber.
¶17. The chancery court reset the divorce trial for May 29, 2001. At trial, the parties entered into a "Consent to Divorce on the Grounds of Irreconcilable Differences and Request that the Court Decide Controverted Issues Between the Parties" pursuant to Mississippi Code Annotated, Section 93-5-2 (Rev.1994). After two days of testimony, the chancery court recessed so the parties could discuss settlement. The parties negotiated for a day and a half before submitting a consent settlement agreement to the chancery court.
¶18. Ann and John agreed that Ann would go forward with her divorce on the ground of habitual, cruel and inhuman treatment. The chancellor examined Ann on the factual basis of her claim and the jurisdictional requirements. She testified that there had been problems, arguments fights, disputes, disagreements, and the like during the course of her marriage to John. She further testified that if she remained in the marriage, it would be injurious to her life, safety, and health, both physically and emotionally. The chancellor then granted Ann a divorce on the ground of habitual, cruel and inhuman treatment.
¶19. The chancellor reserved to the parties the right to submit an irreconcilable differences divorce for approval, but no such divorce or agreement was presented. The chancery court entered its Judgment of Divorce on September 7, 2001, nunc pro tunc, August 23, 2001.
¶20. John filed his notice of appeal, challenging only the provision of the judgment of divorce which granted the divorce on the ground of habitual, cruel and inhuman treatment. Later, by order of September 28, 2001, the judgment was amended, on the chancery court's own motion, to read "nunc pro tunc, June 1, 2001," the date on which the settlement was concluded and announced.
2000-CA-01867-SCT and 2001-CA-00164-SCT
¶21. The only issues that John has identified and argued in these consolidated appeals are those pertaining to the final judgment of divorce entered on September 7, 2001, as later amended on the chancery court's own motion by the order of September 28, 2001, which reads "nunc pro tunc, June 1, 2001," the date on which the settlement was concluded and announced. In his brief, John has abandoned any issues he may have wanted to raise in the first two appeals. Not only has he failed to identify the issues in his brief pursuant to Mississippi Rules of Appellate Procedure 28(a)(3), John has not argued or cited any authority in support of any issues that could have been raised in his first two appeals.
¶22. This Court consistently has held that an unsupported assignment of error will not be...
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