Luse v. Luse

992 So. 2d 659, 2008 WL 2582026
CourtCourt of Appeals of Mississippi
DecidedJuly 1, 2008
Docket2007-CA-00171-COA
StatusPublished
Cited by14 cases

This text of 992 So. 2d 659 (Luse v. Luse) 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
Luse v. Luse, 992 So. 2d 659, 2008 WL 2582026 (Mich. Ct. App. 2008).

Opinion

992 So.2d 659 (2008)

John O'Neal LUSE, Appellant,
v.
Lender LUSE, Appellee.

No. 2007-CA-00171-COA.

Court of Appeals of Mississippi.

July 1, 2008.
Rehearing Denied October 14, 2008.

*660 Bruce W. Burton, attorney for appellant.

Richard R. Grindstaff, attorney for appellee.

Before LEE, P.J., CHANDLER and BARNES, JJ.

BARNES, J., for the Court.

¶ 1. John O'Neal Luse appeals the order of the Chancery Court of Hinds County which granted Lender Luse a divorce from him after he failed to answer the complaint and failed to attend the hearing on the matter. The chancery court also granted Mrs. Luse ownership of certain marital property. On appeal, Mr. Luse asserts three issues: (1) the chancery court erred in granting a divorce on the grounds of desertion when the proceedings were not held in open court as required by law; (2) the chancery court erred in failing to make specific findings of fact and conclusions of law regarding the equitable distribution of the marital property; and (3) the chancery court erred in granting a divorce and awarding all marital property to Mrs. Luse when no Uniform Chancery Court Rule 8.05 financial statement was filed by either party. Finding no error, we affirm.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

¶ 2. Lender and John Luse were married in 1981 and had one child, who was born in 1984. In September 2002, the couple separated. On November 6, 2006, Mrs. Luse filed for divorce in the Hinds County Chancery Court on the grounds of desertion or, in the alternative, irreconcilable differences. She also petitioned the court for the ownership of a house and lot in Hinds County and land in Holmes County. A summons was issued the same date to Mr. Luse, who was served with process in Yazoo County the next day. The summons explained that he must answer the complaint within thirty days or a judgment of "default" would be entered against him.

¶ 3. The record indicates Mr. Luse never responded to the complaint or entered an appearance in court. On December 29, 2006, Mrs. Luse was granted a final judgment of divorce on the grounds of desertion. The chancery court also awarded the real property in Hinds and Holmes County to Mrs. Luse. Aggrieved, on January 26, 2007, Mr. Luse filed a notice of appeal. Subsequently, on February 1, 2007, Mr. Luse filed a motion for relief from the final judgment of divorce in the chancery court pursuant to the Mississippi Rules of Civil *661 Procedure Rules 60(b)(4) and (6).[1] In his motion, he claimed that the judgment should be set aside as void because the divorce proceedings were not conducted in open court pursuant to Mississippi Code Annotated section 93-5-17(1) (Rev.2004); there were no financial statements filed by either party pursuant to Rule 8.05 of the Uniform Chancery Court Rules; and there was no transcript of the proceedings. The record indicates the chancery court did not rule on the motion. While a timely post-trial motion will render a notice of appeal ineffective until the motion is ruled upon, a Rule 60 motion must be filed within ten days after the entry of judgment in order to have that effect. M.R.A.P. 4(d). Here, the motion was filed after the ten-day period; therefore, it has no effect on this appeal.

¶ 4. On February 7, 2008, this Court ordered the chancery court to supplement the record regarding Mr. Luse's contentions of the proceedings in that court. On March 4, 2008, the chancellor responded with her supplemental findings, stating that "[t]he divorce proceedings were held in open court. Since child support and alimony were not at issue and Mr. Luse failed to appear," the court waived the 8.05 financial statements. "Lender Luse presented testimony and corroborating evidence to establish that she was entitled to divorce against Mr. Luse on the grounds of desertion pursuant to Miss.Code Ann. § 93-5-1." Additionally, the chancellor stated the matter was on her "uncontested" docket and was considered an "uncontested matter" by her. Mr. Luse submitted a supplemental brief reiterating his previous arguments.

STANDARD OF REVIEW

¶ 5. This Court's standard of review in domestic relations matters is limited. We "will not disturb a chancellor's findings unless manifestly wrong, clearly erroneous, or if the chancellor applied an erroneous legal standard." Jundoosing v. Jundoosing, 826 So.2d 85, 88(¶ 10) (Miss. 2002) (quoting Johnson v. Johnson, 650 So.2d 1281, 1285 (Miss.1994)). Reversal of a chancellor's findings of fact occurs only when there is no "substantial credible evidence in the record" to justify her finding. Id. (citing Henderson v. Henderson, 757 So.2d 285, 289(¶ 19) (Miss.2000)).

DISCUSSION

1. Whether the chancery court erred in granting a divorce on the grounds of desertion when the proceedings were not heard in open court as required pursuant to Mississippi Code Annotated section 93-5-17(1) (Rev.2004).

¶ 6. Mr. Luse contends that the divorce proceedings were not conducted in open court pursuant to Mississippi statutory law; thus, the divorce is void. He maintains that there was no record that a hearing occurred. Mr. Luse also contends that section 93-5-17(1) requires a transcribed record to be created in an uncontested divorce.

¶ 7. Generally, the law of uncontested divorces is that no judgment by default may be entered in a divorce case, but uncontested divorces are proper if the claimant establishes his or her claim or right to relief by evidence in open court. Miss.Code Ann. § 93-5-7 (Rev.2004); M.R.C.P. 55(e). The statute at issue reads as follows: "[t]he proceedings to obtain a *662 divorce shall not be heard or considered nor a judgment of divorce entered except in open court.... Any judgment made or entered contrary to the provisions of this section shall be null and void." Miss.Code Ann. § 93-5-17(1). A defendant is not required to answer the complaint in a divorce matter. Miss.Code Ann. § 93-5-7. However, the divorce complainant must prove the allegations of his or her complaint even when the defendant has failed to answer. Lindsey v. Lindsey, 818 So.2d 1191, 1194(¶ 13) (Miss.2002); Rawson v. Buta, 609 So.2d 426, 430 (Miss.1992). "[A] divorce will not be granted on the uncorroborated testimony of the claimant." Lindsey, 818 So.2d at 1194(¶ 13) (citing Anderson v. Anderson, 190 Miss. 508, 512, 200 So. 726, 727 (1941)).

¶ 8. In this case, Mr. Luse did not answer, and the matter was placed on the court's "uncontested" docket. Mr. Luse did not appear at the hearing, and no transcription was made. There is no language within section 93-5-17 that requires a transcription of an uncontested divorce proceeding — only that sufficient and corroborated proof be presented. Mississippi Rule of Appellate Procedure 10(c) addresses the procedure to be followed where there is no transcript of the proceedings: the appellant is to prepare a statement of the evidence or proceeding "from the best available means, including recollection." If there is any conflict as to what occurred at the hearing, the matter is submitted to the chancellor for decision. This procedure was not followed by Mr.

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Bluebook (online)
992 So. 2d 659, 2008 WL 2582026, Counsel Stack Legal Research, https://law.counselstack.com/opinion/luse-v-luse-missctapp-2008.