Brooke Nejam Hoffman v. Michael Joseph Hoffman , 2016 Miss. App. LEXIS 580 ( 2016 )

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2015-CA-00329-COA
BROOKE NEJAM HOFFMAN APPELLANT
v.
MICHAEL JOSEPH HOFFMAN APPELLEE
DATE OF JUDGMENT: 01/26/2015
TRIAL JUDGE: HON. WILLIAM H. SINGLETARY
COURT FROM WHICH APPEALED: HINDS COUNTY CHANCERY COURT,
FIRST JUDICIAL DISTRICT
ATTORNEY FOR APPELLANT: THOMAS A. WALLER
ATTORNEYS FOR APPELLEE: J. PEYTON RANDOLPH II
RICK D. PATT
NATURE OF THE CASE: CIVIL - DOMESTIC RELATIONS
TRIAL COURT DISPOSITION: ATTORNEY’S FEES AWARDED TO
APPELLEE
DISPOSITION: APPEAL DISMISSED FOR LACK OF
JURISDICTION - 09/06/2016
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
BEFORE ISHEE, P.J., CARLTON AND JAMES, JJ.
JAMES, J., FOR THE COURT:
¶1. This appeal emanates from divorce proceedings between Brooke Nejam Hoffman and
Michael Joseph Hoffman. Specifically, Brooke appeals from the trial court’s judgment
awarding attorney’s fees to Michael. Because we find this judgment was not a final,
appealable judgment, we lack jurisdiction and must dismiss this appeal.
FACTS AND PROCEDURAL HISTORY
¶2. On January 23, 2013, Brooke filed a complaint for divorce against Michael. On
March 7, 2013, the trial court entered an agreed temporary order. On May 29, 2013, Michael
filed a motion for contempt of the agreed temporary order claiming that he had been denied
the opportunity to visit with his minor children.
¶3. On September 23, 2014, the trial court entered an order finding Brooke in contempt
of the agreed temporary order. Also, on September 23, 2014, the trial court entered a
separate order denying Brooke’s complaint for a divorce. The trial court instructed the
parties to schedule a separate hearing for the purpose of taking proof relative to attorney’s
fees. On October 2, 2014, Brooke filed a motion for reconsideration of the trial court’s order
finding her in contempt.
¶4. On October 20, 2014, the trial court entered a final judgment denying the divorce. On
October 21, 2014, Brooke filed a motion for reconsideration of the judgment denying the
divorce. On October 22, 2014, Brooke’s motion for reconsideration of the trial court’s
contempt order was denied.
¶5. Despite two notices of hearing filed by Brooke for her motion for reconsideration of
the judgment denying the divorce, her motion has not been resolved and remains pending in
the trial court, based on the record before this Court. On November 12, 2014, Michael filed
a motion for attorney’s fees. Michael sought attorney’s fees for the prosecution of his motion
for contempt as well as for the defense of the divorce action. A statement of legal fees was
attached to the motion. On January 22-23, 2015, the trial court held a hearing on the issue
of attorney’s fees. On January 27, 2015, the trial court entered a judgment awarding Michael
attorney’s fees in the amount of $9,437.50 for prosecuting his contempt action. In the same
judgment, the trial court also awarded Michael $22,134.59 in attorney’s fees he incurred in
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successfully defending Brooke’s divorce action.
¶6. On February 16, 2015, Brooke filed a motion entitled “MOTION to Amend[/]Correct
Clarify Contempt Visitation Order, Temporary Order and Set Specific Visitation Schedule”
(the “Motion to Amend”).1 Based on the trial-court docket, this motion has not been
resolved and is pending in the trial court. On February 25, 2015, Brooke filed a notice of
appeal of the trial court’s judgment awarding attorney’s fees.
¶7. Brooke designated the following items for the record on appeal: the judgment
awarding attorney’s fees; the transcript from the hearing on attorney’s fees with exhibits; and
Michael’s motion for attorney’s fees. Brooke raises a single issue on appeal, which is
whether the trial court erred in awarding Michael attorney’s fees. Michael argues that this
Court is without jurisdiction.
STANDARD OF REVIEW
¶8. This Court reviews jurisdictional issues under a de novo standard of review. R.A.S.
Jr. v. S.S., 66 So. 3d 1257, 1261 (¶10) (Miss. Ct. App. 2011) (citing Calvert v. Griggs, 992
So. 2d 627, 631 (¶9) (Miss. 2008)).
DISCUSSION
¶9. In general, only final judgments are appealable. S.E.B. v. R.E.B., 67 So. 3d 14, 16
(¶9) (Miss. Ct. App. 2011) (citing M.W.F. v. D.D.F., 926 So. 2d 897, 899 (¶4) (Miss. 2006)).
“A final, appealable, judgment is one that adjudicates the merits of the controversy which
settles all issues as to all the parties and requires no further action by the [trial] court.”
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(Italics removed).
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Newson v. Newson, 138 So. 3d 275, 277-78 (¶6) (Miss. Ct. App. 2014) (quoting Walters v.
Walters, 956 So. 2d 1050, 1053 (¶8) (Miss. Ct. App. 2007)). An important function of this
final-judgment rule is to prevent piecemeal appeals. R.A.S. Jr., 66 So. 3d at 1261 (¶11).
¶10. Mississippi Rule of Civil Procedure 54(b) provides an exception to the final-judgment
rule:
When more than one claim for relief is presented in an action . . . or when
multiple parties are involved, the court may direct the entry of a final judgment
as to one or more but fewer than all of the claims or parties only upon an
expressed determination that there is no just reason for delay and upon an
expressed direction for the entry of the judgment. In the absence of such
determination and direction, any order or other form of decision, however
designated which adjudicates fewer than all of the claims or the rights and
liabilities of fewer than all the parties shall not terminate the action as to any
of the claims or parties and the order or other form of decision is subject to
revision at any time before the entry of judgment adjudicating all the claims
and the rights and liabilities of all the parties.
¶11. If the trial court enters a Rule 54(b) judgment, it must do so in a definite, unmistakable
manner. Harris v. Waters, 40 So. 3d 657, 658-59 (¶5) (Miss. Ct. App. 2010) (citing
M.R.C.P. 54(b) cmt.). Here, the trial court did not certify that the judgment awarding
attorney’s fees was an appealable judgment under Rule 54(b). “Absent a certification under
Rule 54(b), any order in a multiple[-]party or multiple[-]claim action, even if it appears to
adjudicate a separable portion of the controversy, is interlocutory.” Newson, 138 So. 3d at
277 (¶7) (citing M.R.C.P. 54 cmt.).
¶12. “An interlocutory order without a Rule 54 certification is only appealable if the
Mississippi Supreme Court grants permission under Rule 5 of the Mississippi Rules of
Appellate Procedure; this Court has no jurisdiction to hear it otherwise.” Jackson v. Lowe,
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65 So. 3d 879, 881-82 (¶7) (Miss. Ct. App. 2011). Brooke neither sought nor was granted
permission to proceed with an interlocutory appeal under Rule 5.
¶13. Based on the record before us, Brooke’s motion for reconsideration of the judgment
denying a divorce has not been resolved. Also, Brooke’s Motion to Amend has not been
resolved. These unresolved issues of the divorce proceedings between Michael and Brooke
remain pending in the trial court.
¶14. The judgment awarding attorney’s fees from which Brooke has appealed to this Court
was simply a judgment granting Michael attorney’s fees for successfully prosecuting a
contempt action and defending Brooke’s complaint for divorce. Because the trial court did
not grant a proper Rule 54(b) certification nor, did the supreme court grant Brooke
permission to proceed on an interlocutory appeal, the judgment is not a final, appealable
judgment. Accordingly, we dismiss this appeal for lack of jurisdiction.
¶15. THIS APPEAL IS DISMISSED FOR LACK OF JURISDICTION. ALL COSTS
OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.
LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, CARLTON, FAIR,
WILSON AND GREENLEE, JJ., CONCUR.
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