Thornton v. Thornton

• Decision Date: 08 June 2021
• Docket Number: No. 2019-CA-01524-COA,2019-CA-01524-COA
• Citation: 322 So.3d 485
• Parties: Brenda Harness THORNTON, Appellant, v. Timothy Terrell THORNTON Sr., Appellee.
• Court: Mississippi Court of Appeals

322 So.3d 485

Brenda Harness THORNTON, Appellant,

v.Timothy Terrell THORNTON Sr., Appellee.

No. 2019-CA-01524-COA

Court of Appeals of Mississippi.

June 8, 2021

ATTORNEY FOR APPELLANT: AMELIA SHA'METTA CARTER

ATTORNEY FOR APPELLEE: EDWIN L. BEAN JR., McComb

BEFORE CARLTON, P.J., LAWRENCE AND SMITH, JJ.

SMITH, J., FOR THE COURT:

¶1. This is the second appeal arising from the Pike County Chancery Court's grant of a divorce to Brenda and Timothy (Tim) Thornton. See Thornton v. Thornton , 270 So. 3d 186 (Miss. Ct. App. 2018). In her current appeal, Brenda argues the chancellor erred by (1) denying her amended motion under Mississippi Rule of Civil Procedure 60(b) to set aside the divorce judgment; (2) denying the costs awarded to her during the first appeal; (3) failing to recuse from the case; (4) modifying child custody as to the parties’ younger son; (5) holding her in contempt for various conduct but denying her contempt claim against Tim; and (6) appointing a special commissioner to review her phone calls and text messages.

¶2. Upon review, we find the chancellor erred by denying Brenda's amended Rule 60(b) motion as untimely. We therefore reverse the denial of Brenda's amended Rule 60(b) motion on that basis. Because Brenda's attorney made a proffer of the testimony and evidence she had planned to present in support of the amended Rule 60(b) claims, we find the issue has been fully preserved for review. Thus, on remand the chancellor should consider the parties’ evidence regarding the amended Rule 60(b) claims and rule on the merits in disposing of those claims. With regard to all other remaining assignments of error, we find no error and affirm.

FACTS

¶3. Brenda and Tim were married in February 2000, and they separated in June 2014. Thornton , 270 So. 3d at 188 (¶2). During the course of their marriage, the parties had two sons—T.T. (born in 2001) and J.T. (born in 2008).¹ On August 19, 2015, Brenda filed for a divorce on the ground of adultery. Id. at (¶3). She alternatively sought a divorce on the grounds of habitual cruel and inhuman treatment, desertion, or irreconcilable differences. Id. On August 26, 2016, the chancellor granted Brenda a divorce on the ground of adultery. Id. at (¶4). The chancellor noted in his judgment that T.T., who was then fifteen years old, had elected to live with Brenda. The chancellor awarded Brenda sole physical custody of both children and awarded Tim visitation. The chancellor also awarded the parties joint legal custody of the children. Brenda appealed from the chancellor's final judgment and his subsequent order partially amending the final judgment. Id. at 190 (¶15).

¶4. On appeal, Brenda raised seven assignments of error. Id. at 191 (¶18). Upon review, this Court concluded that "the record lack[ed] sufficient Ferguson ^{[2 ]} findings to allow for appellate review of the chancellor's equitable division of marital property ...." Id. at 193 (¶28). We further concluded that the chancellor needed to "complete a proper equitable division of the marital estate" before making any determination regarding alimony. Id. at 194 (¶30). We therefore reversed the chancellor's judgment and remanded the case on August 14, 2018, for further proceedings. Id.

¶5. Both during the pending appeal before this Court and after our remand to the chancery court, the parties filed numerous additional motions. Relevant to this appeal, Brenda filed a Rule 60(b) motion to set aside the divorce judgment. Id. at 190 (¶10). She subsequently filed an amended Rule 60(b) motion. The chancellor ultimately granted Brenda partial relief on her original Rule 60(b) motion but denied her amended Rule 60(b) motion. Also relevant to the present appeal are Brenda's claims that the chancellor erroneously denied the costs awarded to her from the first appeal and improperly appointed a special commissioner to search the parties’ cell phones; her unsuccessful motion for the chancellor's recusal; Tim's successful motion to modify child custody as to the parties’ younger son, J.T., and to terminate his monthly alimony payments; and both parties’ various contempt claims against the other party. With regard to the various contempt claims, the chancellor held Brenda in contempt for multiple violations and awarded related attorney's fees to Tim. The chancellor declined, however, to likewise hold Tim in contempt for his alleged violation.

¶6. Aggrieved by the chancellor's rulings, Brenda appeals.

STANDARD OF REVIEW

¶7. "This Court will not disturb a chancellor's judgment when it is supported by substantial credible evidence unless the chancellor abused his discretion, was manifestly wrong or clearly erroneous, or applied an erroneous legal standard." Gilmer v. Gilmer , 297 So. 3d 324, 331 (¶13) (Miss. Ct. App. 2020) (quoting Branch v. Branch , 174 So. 3d 932, 937 (¶9) (Miss. Ct. App. 2015) ). We review issues of law de novo. Id.

DISCUSSION

I. Amended Rule 60(b) Motion

¶8. Brenda challenges the chancellor's finding that her amended Rule 60(b) motion to set aside the divorce judgment was untimely filed. We review the chancellor's denial of a Rule 60(b) motion for abuse of discretion. McChester v. McChester , 300 So. 3d 1035, 1039 (¶16) (Miss. Ct. App. 2020).

¶9. In the August 26, 2016 divorce judgment, the chancellor awarded Brenda a 2009 Dodge Ram truck. The Rule 8.05³ financial statement Tim had submitted during the divorce proceedings identified the truck's total value as $14,000, with about $4,000 still due on the loan. In awarding Brenda the truck, as well as responsibility for all payments for the truck's loan, insurance, and upkeep, the chancellor relied on the information provided in Tim's financial statement.

¶10. "On October 31, 2016, Brenda filed a Rule 60(b) motion to set aside the judgment, claiming that Tim [had] committed fraud on the court." Thornton , 270 So. 3d at 190 (¶10). Brenda asserted that Tim had misrepresented and undervalued the truck's total loan amount and had used the truck as collateral to secure another loan. Brenda further asserted that Tim had used $4,000 of the loan amount to pay his attorney's fees. Brenda contended Tim had known when he submitted the financial statement that more than $4,000 was owed on the truck and that he had therefore committed fraud upon the court. In addition to seeking reimbursement for the $4,000 Tim had obtained to pay his attorney's fees, Brenda argued that the chancellor should require Tim to pay any other outstanding balance owed on the truck. She also requested that the chancellor award her the attorney's fees and costs associated with bringing her Rule 60(b) motion. Because Brenda filed her Rule 60(b) motion within six months after the entry of the divorce judgment, this Court determined during the first appeal that the motion was timely. Id. at 192 (¶21). We noted, however, that the chancellor had declined to rule on Brenda's Rule 60(b) motion while the first appeal was still pending. Id. at 191 (¶19).

¶11. On August 14, 2018, this Court remanded the parties’ case to the chancery court. During a hearing held on November 13, 2018, the chancellor noted on the record that the parties agreed Tim had misrepresented the truck's debt as $4,000 at the time of the divorce hearing and that the actual debt amounted to $9,862.84. Although the chancellor stated during the hearing that he would grant Brenda's Rule 60(b) motion, no such subsequent order appears in the record.

¶12. On April 10, 2019, Brenda filed an amended Rule 60(b) motion to set aside the divorce judgment. In addition to the arguments raised in her original motion, which had not yet been granted or denied by any order, Brenda's amended motion asserted that Tim had received a $2,000 cash advance on the same loan he secured by using the 2009 Dodge Ram as collateral. Brenda alleged that Tim had received the $2,000 loan advance on August 19, 2016, which was after the August 3, 2016 divorce proceeding but prior to the entry of the chancellor's August 26, 2016 divorce judgment. Brenda asked that the chancellor order Tim to not only pay all costs and attorney's fees associated with her original and amended Rule 60(b) motions but to also repay the $4,000 he had obtained to pay his attorney's fees and the $2,000 cash advance he had received on the same loan.

¶13. On August 16, 2019, the chancellor entered an order requiring Tim to pay Brenda $4,000. Tim filed an August 21, 2019 motion and asked the chancellor to stay his order regarding the $4,000 until the chancellor had ruled on Tim's various petitions seeking contempt, child-custody modification, and monetary relief. By his order entered August 29, 2019, the chancellor granted Tim's motion to stay the order requiring the $4,000 payment to Brenda until he had also heard Tim's various petitions seeking monetary relief.

¶14. On October 15, 2019, the chancellor conducted the final hearing prior to the present appeal. In addressing Brenda's amended Rule 60(b) motion, the chancellor concluded that the amended motion was untimely filed and that the claims should have been raised in a contempt action. Although he denied the amended Rule 60(b) motion, the chancellor allowed Brenda's attorney to make a proffer regarding the supporting evidence she had planned to present. The chancellor memorialized the denial of Brenda's amended Rule 60(b) motion by his final order entered October 16, 2019.

¶15. As she argued before the chancellor, Brenda asserts on appeal that she properly brought her amended motion under Rule 60(b)(6). Brenda further asserts that under Mississippi Rule of Civil Procedure 15(c), the amended Rule 60(b)(6) motion related back to the filing date of her timely filed original motion. She therefore contends that the chancellor erred by denying the amended motion.

¶16. Mississippi Rule of Civil Procedure 7 distinguishes between pleadings and motions. M.R.C.P. 7(a)-(b). Rule 7(a) defines allowable pleadings, and Rule 7(b) makes clear that motions are different from pleadings. Id. ...