Mark Wentsen Fayard v. Delisa Dianne Fayard

IN THE SUPREME COURT OF MISSISSIPPI
NO. 2003-CT-02642-SCT
M.W.F.
v.
D.D.F.
ON WRIT OF CERTIORARI
DATE OF JUDGMENT: 11/12/2003
TRIAL JUDGE: HON. JAYE A. BRADLEY
COURT FROM WHICH APPEALED: GREENE COUNTY CHANCERY COURT
ATTORNEY FOR APPELLANT: BILLY PARLIN
ATTORNEY FOR APPELLEE: DARRYL A. HURT, JR.
NATURE OF THE CASE: CIVIL - DOMESTIC RELATIONS
DISPOSITION: THE JUDGMENT OF THE COURT OF
APPEALS IS VACATED AND THIS APPEAL
IS DISMISSED - 04/20/2006
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
EN BANC.
CARLSON, JUSTICE, FOR THE COURT:
¶1. After eighteen years of marriage, D. D. F. sought a divorce from M. W. F.1 The
chancellor granted D. D. F. a divorce on the ground of habitual cruel and inhuman treatment.
M. W. F. appealed, and the Court of Appeals unanimously affirmed the decision of the
chancellor by an opinion handed down on July 26, 2005. M.W.F. v. D.D.F., 2005 WL
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This case is confidential because there was testimony at trial regarding the molestation of
one of the minor children by M.W.F.’s brother.
1744979 (Miss. Ct. App. 2005). The Court of Appeals denied M.W.F.’s motion for
rehearing on October 11, 2005.
¶2. M.W.F. has filed a petition for writ of certiorari. D.D.F. has not filed a response to
the petition. After a careful review of the record, we are constrained, as a matter of law, to
find that the chancery court judgment from which M.W.F. appeals was not a final judgment.
Because the judgment was not certified pursuant to Miss. R. Civ. P. 54(b), this Court and the
Court of Appeals lack jurisdiction to consider the appeal. Thus, having granted the petition
for writ of certiorari, we now find the appeal must be dismissed for want of jurisdiction.
FACTS AND PROCEEDINGS IN THE TRIAL COURT
¶3. The record reveals D.D.F. filed her complaint for divorce on the statutory ground of
habitual cruel and inhuman treatment. M.W.F. responded that D.D.F. was not entitled to a
divorce and counterclaimed for separate maintenance. Both parties sought custody of the
children, support, and certain assets. Prior to trial, the parties agreed to bifurcate the
proceedings and first try the divorce issue. The trial concerning the issue of divorce was held
in October, 2003, and the chancellor thereafter entered the “Judgment of Divorce” on
November 19, 2003. The chancellor granted D.D.F. a divorce on the ground of habitual cruel
and inhuman treatment. The judgment states, in pertinent part,
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the
Attorneys for the parties shall schedule a trial date for resolution of the
remaining issues raised in the pleadings by the respective parties.
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On November 24, 2003, M.W.F. filed a Notice of Appeal from this judgment of divorce, and
the chancery court, on December 1, 2003, entered a Temporary Order in which the chancellor
awarded temporary custody of the children to D.D.F. and awarded temporary use of certain
assets to each party. The Temporary Order states, in pertinent part,
That the parties stipulated and agreed to bifurcate the trial of this cause of
action and to first submit to the Court the issue of divorce and allow the Court
to reserve ruling on other issues pending determination of the issue of divorce.
....
That on November 24, 2003, the Court heard the Motion for Temporary
Features of [D.D.F.] to provide for temporary issues pending the appeal to the
Mississippi Supreme Court.
The Court finds that it has jurisdiction to enter a Temporary Order respecting
the temporary issues in this cause since the Court reserved jurisdiction of all
property issues at the time the trial was bifurcated.
The Court finds that a Temporary Order should issue in this cause to provide
for property issues, pending appeal.
....
That the Court reserves jurisdiction of all issues in this cause for final
disposition after the conclusion of the appeal in this cause.
ANALYSIS
¶4. “The parties have not raised an issue as to whether the [chancery] court’s [judgment]
is appealable. However, [this Court] must address this question on our own initiative.”
Williams v. Delta Regional Medical Center, 740 So. 2d 284, 285 (Miss. 1999) (citing Cox
v. Howard, Weil, Labouisse, Friedrichs, Inc., 512 So. 2d 897, 899 (Miss. 1987) (sua sponte
dismissing appeal for improper Rule 54(b) certification). Generally, only final judgments are
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appealable. See Miss. Code Ann. §§ 9-3-9 & 11-51-3; M.R.A.P. 5. In the present matter,
the parties raised before the chancellor various claims concerning grounds for divorce, as
well as custody of the children, child support, alimony, and property division. The
“Judgment of Divorce” only addressed the issue of grounds for divorce. The judgment was
not certified pursuant to Miss. R. Civ. P. 54(b), which states:
(b) Judgment Upon Multiple Claims or Involving Multiple Parties. When
more than one claim for relief is presented in an action, whether as a claim,
counter-claim, cross-claim, or third-party claim, 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.
Miss. R. Civ. P. 54(b) (emphasis added). “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.” Miss. R. Civ. P. 54(b) cmt.
If the court decides that an order that does not dispose of all the claims of all
the parties and that is not appealable under any other statute or rule should be
given the status of a final judgment, Rule 54(b) requires it to take two separate
steps before an appeal can be perfected. The court must make "an express
determination that there is no just reason for delay" and it must make "an
express direction for the entry of judgment."
Id. (emphasis added). “Without the entry of a Rule 54(b) certificate, a trial court order which
disposes of less than all of the claims against all of the parties in a multiple party or multiple
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claim action, is interlocutory.” Owens v. Nasco Int’l, Inc., 744 So. 2d 772, 774 (Miss. 1999)
(citing Williams, 740 So. 2d at 285)). See also Salts v. Gulf Nat. Life Ins. Co., 849 So. 2d
848, 850-51 (Miss. 2002); Gilchrist v. Veach 754 So. 2d 1172, 1173-74 (Miss. 2000).
¶5. Although the chancellor’s temporary order discusses the appeal, it does not use the
specific and express language required by Miss. R. Civ. P. 54(b). If the chancellor desired
the judgment of divorce to be final and appealable, she did not “do so in a definite,
unmistakable manner.” Miss. R. Civ. P. 54(b) cmt. We thus find the “Judgment of Divorce”
entered in this case was an interlocutory order. Because this Court did not grant permission
for an interlocutory appeal, this Court and the Court of Appeals lack jurisdiction to consider
this issue on appeal. Accordingly, this appeal must be dismissed for want of jurisdiction.
CONCLUSION
¶6. The chancellor’s judgment of divorce was not certified as a final judgment pursuant
to the provisions of Miss. R. Civ. P. 54(b). Thus, the chancellor’s order was interlocutory
in nature, and not appealable. Therefore, the judgment of the Court of Appeals is vacated
and this appeal is dismissed for lack of jurisdiction.
¶7. THE JUDGMENT OF THE COURT OF APPEALS IS VACATED AND THIS
APPEAL IS DISMISSED.
SMITH, C.J., WALLER AND COBB, P.JJ., EASLEY, GRAVES AND
DICKINSON, JJ., CONCUR. DIAZ AND RANDOLPH, JJ., NOT PARTICIPATING.
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