Franklin v. Franklin

864 So. 2d 970, 2003 WL 22781672
CourtCourt of Appeals of Mississippi
DecidedNovember 25, 2003
Docket2001-CA-01987-COA
StatusPublished
Cited by5 cases

This text of 864 So. 2d 970 (Franklin v. Franklin) is published on Counsel Stack Legal Research, covering Court of Appeals of Mississippi primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Franklin v. Franklin, 864 So. 2d 970, 2003 WL 22781672 (Mich. Ct. App. 2003).

Opinion

864 So.2d 970 (2003)

Danny R. FRANKLIN, Appellant/Cross-Appellee,
v.
Carolene G. FRANKLIN, Appellee/Cross-Appellant.

No. 2001-CA-01987-COA.

Court of Appeals of Mississippi.

November 25, 2003.

*973 William M. Beasley, Jak McGee Smith, Tupelo, Rebecca L. Hawkins, Jackson, attorneys for appellant.

T. Swayze Alford, attorney for appellee.

Before McMILLIN, C.J., BRIDGES and THOMAS, JJ.

THOMAS, J., for the Court.

¶ 1. Following entry of an order and judgment of divorce by Lee County Chancellor John C. Ross on January 21, 2001, both Danny and Carolene Franklin appeal. Danny, plaintiff below and appellant here, assigns the following errors by the chancellor:

I. THE AMOUNT OF PERIODIC ALIMONY AWARDED TO CAROLENE FRANKLIN IS EXCESSIVE AND AN ABUSE OF THE CHANCELLOR'S DISCRETION.

II. THE CHANCELLOR'S AWARD OF TEMPORARY ALIMONY ARREARAGE IS ERRONEOUS, AN ABUSE OF DISCRETION, AND SHOULD BE REVERSED AND RENDERED.

III. THE CHANCELLOR'S FINDINGS AND AWARD REGARDING PAST DUE MEDICAL BILLS ARE CLEARLY ERRONEOUS.

IV. THE CHANCELLOR ERRONEOUSLY AWARDED CUSTODY OF THE FOUR MINOR CHILDREN TO CAROLENE FRANKLIN WITHOUT CONSIDERING THE ALBRIGHT FACTORS.

V. THE CHANCELLOR'S AWARD OF ATTORNEY'S FEES TO CAROLENE WAS ERRONEOUS.

¶ 2. Carolene, defendant below and cross-appellant here, appeals two issues:

I. WHETHER CHANCELLOR JOHN ROSS ERRED WHEN HE ENTERED THE ORDER GRANTING NEW TRIAL.

II. ASSUMING JUDGE ROSS HAD AUTHORITY AND A SUFFICIENT BASIS TO GRANT A NEW TRIAL, WHETHER JUDGE ROSS ERRED IN DIVIDING THE MARITAL ASSETS WHEN HE AWARDED 65% TO DAN AND 35% TO CAROLENE AND IN ALLOWING DAN TO PAY THE MAJORITY OF CAROLENE'S SHARE TO HER OVER A PERIOD OF 180 MONTHS.

¶ 3. We affirm in part and finding error, reverse and remand in part to the chancery court for further action consistent with this opinion.

FACTS

¶ 4. The divorce case of Carolene and Danny Franklin has been pending before the courts of this State for nearly eleven years. The recitation of the facts and procedural history is necessarily lengthy.

¶ 5. Danny and Carolene were married in October, 1980. Four daughters were born to the marriage: Jessica in 1984, Candace in 1986, Whitney in 1988, and Jenna in 1993. Although neither party brought significant assets to the marriage, the couple soon began a business, Franklin Collections Services. This business became successful enough that Carolene could eventually cease working there regularly to devote the bulk of her time to child rearing and still allow the family to live comfortably.

*974 ¶ 6. Sometime around Christmas 1992, Danny left the marital home and filed for divorce on January 21, 1993, claiming irreconcilable differences. Carolene filed a petition for separate maintenance which resulted, eventually, in the entry of a temporary decree by Chancellor Timothy Ervin, allowing Carolene use and possession of the marital home, custody of all four children and requiring Danny to pay $1,200 per month in child support and $3,400 per month alimony.

¶ 7. In the interim, Danny filed an amended complaint alleging habitual cruel and inhuman treatment, or alternatively, irreconcilable differences. Danny also sought custody of the children. Carolene filed a counter-complaint for divorce in October 1995, asserting adultery and habitual cruel and inhuman treatment by Danny. After years of wrangling, the matter eventually came on for hearing before Chancellor Ervin in April 1998. After three days of testimony, Ervin took the matter under advisement.

¶ 8. In December 1998, Ervin notified the supreme court that he had not yet rendered a decision in the Franklin case and would be unable to do so before leaving the bench at the end of the year. The supreme court issued an order on January 22, 1999, appointing Ervin as special chancellor in the case and ordered him to render a judgment.

¶ 9. Danny then filed a notice of dismissal with the Lee County Chancery Court. He argued that, under the Rules of Appellate Procedure, the case was automatically dismissed when the chancellor failed to render a decision for more than six months and forty-five days and neither party had sought mandamus. Danny also filed a motion to reconsider the special chancellor appointment with the supreme court based upon the same ground. This was denied. Chancellor Ervin rendered a memorandum opinion on April 12, 1999. Carolene was granted the divorce on the ground of adultery. Carolene also received custody of all four daughters, child support in the amount of $1200 per month, alimony in the amount of $3500 per month and fifty per cent of the marital estate. Chancellor Ervin, however, never entered a final judgment of divorce.

¶ 10. Danny filed a number of motions pertaining to the order: a motion to reconsider, motion for new trial and motion challenging Ervin's authority to enter the order at all. Ervin declined to rule on any of these motions, finding his authority in the case ended upon issuance of the memorandum opinion. The new chancellor, John Ross, entered a final judgment in February 2000 which adopted the findings of Ervin's memorandum opinion. Danny filed another motion for new trial which Chancellor Ross then granted.

¶ 11. The second hearing was held in November 2000. Chancellor Ross issued his opinion and judgment in January 2001. Carolene was again granted a divorce on the ground of adultery and custody of all four children with child support of $1050 per month. The chancellor valued the marital estate, comprised primarily of various pieces of real property, a cattle and farming operation and the collections business, at $1,037,290. He allocated thirty-five percent of this total, $363,051.50, to Carolene and the remaining sixty-five percent, $674,238.50, to Danny.

¶ 12. The chancellor also found Danny in arrears for alimony ordered under the 1994 temporary decree in the amount of $74,800. After subtracting the value of the property awarded to Carolene outright, the chancellor found Danny owed to Carolene as her portion of the marital estate $264,551.50. To this total he added the alimony arrearage for a total of $339,351.50 due Carolene to be paid in 180 *975 monthly installments of $3,132.77. Carolene was granted a lien on Danny's property to secure this debt. Finally, Carolene was granted alimony in the amount of $2,915 per month.

ANALYSIS

¶ 13. For clarity and simplicity, we will combine some issues of the appeal and cross-appeal for discussion and approach them out of the order in which the parties have presented them.

A. Carolene's Cross-Appeal

1. New Trial

¶ 14. Carolene's first assignment of error on cross-appeal is that Chancellor Ross erred when he granted Danny's motion for a new trial because he lacked the authority to do so. Danny answers that Carolene failed to designate the March 2000 order in her notice of appeal and she is therefor barred from raising the issue.

¶ 15. An order granting a motion for a new trial is not a final judgment which can be appealed as of right. Maxwell v. Illinois Cent. Gulf R.R., 513 So.2d 901, 908 (Miss.1987). The only avenue for review of a decision on a motion for new trial alone is via an interlocutory appeal. Bowman v. Rutledge, 369 So.2d 768, 769 (Miss.1979). The motion for new trial, whether granted or denied, is but one portion of the case as a whole which may, if proper objection is made, be appealed as an assignment of error following the entry of a final judgment from the new trial.

¶ 16.

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Bluebook (online)
864 So. 2d 970, 2003 WL 22781672, Counsel Stack Legal Research, https://law.counselstack.com/opinion/franklin-v-franklin-missctapp-2003.