Palmere v. Curtis

789 So. 2d 126, 2001 WL 714832
CourtCourt of Appeals of Mississippi
DecidedJune 26, 2001
Docket2000-CA-00976-COA
StatusPublished
Cited by20 cases

This text of 789 So. 2d 126 (Palmere v. Curtis) 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
Palmere v. Curtis, 789 So. 2d 126, 2001 WL 714832 (Mich. Ct. App. 2001).

Opinion

789 So.2d 126 (2001)

Cynthia PALMERE, Appellant
v.
Henry E. CURTIS, Appellee.

No. 2000-CA-00976-COA.

Court of Appeals of Mississippi.

June 26, 2001.

*127 Robert O. Homes Jr., Gulfport, Attorney for Appellant.

Edward F. Donovan, Biloxi, Attorney for Appellee.

Before McMILLIN, C.J., PAYNE, BRIDGES, and MYERS, JJ.

PAYNE, J., for the Court:

PROCEDURAL HISTORY

FACTS

¶ 1. Cynthia Palmere and Henry Curtis were divorced in December of 1988. The couple had one child, Dominic John Curtis (Nicky), who was three years old at that *128 time. In 1998, the Department of Human Services filed a petition for modification on Palmere's behalf, requesting an increase in monthly child support. Curtis admitted a material change in circumstances and that a larger child support award was justified. However, in his answer, Curtis also submitted a counterclaim for contempt against Palmere based on his contention that she deliberately obstructed visitation and acted to alienate Nicky's natural affections away from Curtis. Palmere denied the allegations and asserted her affirmative defense that the allegations were made for intentional and malicious reasons.

¶ 2. All issues were set for trial in April 1999. However, the parties reached an agreement concerning the upward adjustment of child support, and the remaining issues were postponed. The parties were unable to reach a consensus on the form and content of an order reciting the parties' agreement and the court's directions, so the chancellor created the order, dated April 28, 1999. The remaining claims were finally heard on March 20, 2000. At the conclusion of Curtis's case and before Palmere could give direct testimony or put on her case, Chancellor Walter W. Teel, Second Judicial District of Harrison County, Mississippi, called for a conference in chambers. Thereafter, the parties announced a settlement, the terms of which were dictated into the record. The chancellor asked Curtis's attorney to prepare a judgment, which Palmere's attorney refused to sign, claiming it did not conform to the settlement dictated into the record. The chancellor, nevertheless, issued the judgment without the signature of Palmere or her attorney. Palmere disagrees with the wording of one of the terms of the settlement and now appeals.

¶ 3. Curtis filed a motion to strike portions of Palmere's brief. Without making a detailed review of the language to which Curtis objects, we find it irrelevant to our analysis of the remaining issues. However, finding error, the case is reversed and remanded.

STATEMENT OF ISSUES

STANDARD OF REVIEW

¶ 4. Palmere makes the following assignments of error:

I. WHETHER THE JUDGMENT APPEALED FROM IS CONTRARY TO THE PARTIES' SETTLEMENT AGREEMENT?
II. WHETHER THE CHANCELLOR HAD THE POWER TO ISSUE A CONSENT JUDGMENT TO WHICH ONE OF THE PARTIES DID NOT CONSENT?

The standard of review for this case is as follows:

This court will not disturb the findings of a chancellor unless the chancellor was manifestly wrong, clearly erroneous or an erroneous legal standard was applied.

Bell v. Parker, 563 So.2d 594, 596-97 (Miss.1990).

DISCUSSION

¶ 5. This is an appeal on the record, involving the terms of the settlement reached by the parties. As stated in Chancellor Teel's judgment of May 19, 2000:

Following the various discussions, the Court received the announcement of the parties that a global settlement had been reached along the lines proposed by the Court. The terms of the settlement of all pending issues were dictated into the record by the Court after which the attorney for each party and the parties themselves verbally acknowledged consent and understanding of the settlement terms. The Court expressly entered a finding on the record that all *129 matters in controversy between the parties were settled by agreement; that the terms of the settlement were considered adequate and reasonable as they concern the welfare of the parties' minor child.

Following the dictation of the terms into the record, Curtis's attorney, Edward Donovan, was directed by the court to prepare a draft of the settlement, and to forward it to Palmere's attorney, Robert Homes, for his approval as to form. The court stated that it did not need the clients' signatures, just the attorneys'. After some discussion between the parties and the court, and a few changes, Palmere still disagreed with the language of one item in the written judgment, so her attorney did not sign the final draft. The court, however, signed and entered the judgment without the signature of Palmere or her attorney.

¶ 6. Palmere specifically disagreed with the language concerning Curtis's duty to pick up their minor child for visitation in a timely manner. The child was fifteen years old at the time of the hearing, so is now sixteen. However, the term in question was addressed in open court as follows:

MR. HOMES: The other thing is, I think it ought to clearly specify that Henry [Curtis] is, since he's exercising visitation, has to pick Nicky up at the appointed time and bring him back at the appointed time.
THE COURT: That, let me correct that. You are correct on that. And we are still going to have that half an hour leeway time. If he's not there within half an hour, Mom doesn't have to wait.
MR. DONOVAN: And I assume that half an hour would carry over to those occasions where Henry says, I'm working tonight, Friday. So I'll pick him up at 8 o'clock in the morning. Then he would have to wait at least until 8:30.
THE COURT: That's fair. And she's nodding her assention [sic] to that.
. . .
I hereby find on the record that the parties have announced a settlement which is a full accord and satisfaction of their dispute.... I find on the record that the settlement is hereby deemed to be binding. It is accepted by the Court. It is now the Order of the Court.

This was the total discussion of the disputed term dictated to the record. However, the judgment ultimately signed by Curtis's attorney and Judge Teel states as follows:

d. On all occasions for visitation slated to begin at a particular hour, Cindy Palmere shall make sure that Dominic John Curtis is available and prepared to leave with his father at the stated time.... Further, Cindy Palmere and Dominic John Curtis are directed to wait at the Mirimar Avenue home at least for a half of an hour following the scheduled beginning time of visitation. The failure of Henry Curtis to appear without communicated excuse at or within the additional half hour of time shall free Cindy Palmere and Dominic John Curtis from any further obligations to remain at the home beyond the half hour mentioned; in such circumstances each shall be free to go about their own business and assume that Henry Curtis is not coming to exercise his visitation for that particular period. Wanda Curtis (wife of Henry Curtis) may collect Dominic John Curtis from the Palmere residence for visitations and also may provide his *130 transportation for a return at the end of any visitation period.

(emphasis added).

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Bluebook (online)
789 So. 2d 126, 2001 WL 714832, Counsel Stack Legal Research, https://law.counselstack.com/opinion/palmere-v-curtis-missctapp-2001.