Peggy P. McGrew v. Charles Elliot McGrew
184 So. 3d 302
| Miss. Ct. App. | 2015Background
- Peggy filed for divorce from Charles on July 14, 2011; bench trial occurred and the chancellor orally granted divorce on November 22, 2013 and made various property rulings.
- The chancellor directed counsel to prepare a final written judgment consistent with the bench ruling; no final written judgment was entered during Charles’s lifetime.
- Peggy filed a timely motion for reconsideration (treated as a Rule 59 motion) on December 2, 2013 and the chancellor heard it on March 14, 2014 but took it under advisement; no ruling was entered before Charles’s death.
- Charles died June 10, 2014; later, on July 18, 2014, the chancellor entered a final divorce judgment nunc pro tunc to November 22, 2013, including division of marital property.
- Peggy appealed, arguing the action abated on Charles’s death, and alternatively raised property-division and classification errors; the Court of Appeals reversed and rendered, holding the postmortem nunc pro tunc decree void.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether appellate jurisdiction was proper despite unresolved motions | Peggy: Her timely Rule 59 motion stayed appeal time; final judgment effectively denied the motion so appeal timely | Charles: (through counsel) argued bench ruling final and binding; did not contest jurisdiction on appeal | Court: Jurisdiction proper — Rule 59 motion was timely and final judgment effectively denied it; notice of appeal timely from July 18, 2014 judgment |
| Whether divorce action abated on Charles’s death before final decree | Peggy: Divorce action abated at death because no final adjudication occurred while both spouses alive | Charles: Oral bench ruling was final; nunc pro tunc entry merely memorialized prior final adjudication | Court: Action abated — all issues were not finally adjudicated before death; postmortem divorce decree was void and chancellor lacked authority to enter it |
| Whether a nunc pro tunc judgment could lawfully be entered after death | Peggy: Nunc pro tunc cannot be used to create a new/de novo decision after death | Charles: Nunc pro tunc appropriate because bench ruling was intended to be final (court relied on White v. Smith) | Court: Nunc pro tunc improper here — available only when final adjudication occurred during life; that was not present, so nunc pro tunc could not validate a postmortem decree |
| Whether appellee’s failure to file brief warranted confession of error | Peggy: No appellee brief; take failure as confession of error and reverse | (No appellee brief filed; no party substituted) | Court: Alternatively treated error as confessed and reversed and rendered judgment; costs assessed to appellee |
Key Cases Cited
- Miller v. Pannell, 815 So. 2d 1117 (Miss. 2002) (failure to file appellee brief may be treated as confession of error)
- Pittman v. Pittman, 375 So. 2d 415 (Miss. 1979) (divorce action abates if a party dies before final decree)
- Thrash v. Thrash, 385 So. 2d 961 (Miss. 1980) (nunc pro tunc entry allowed only when final adjudication occurred during parties’ lives)
- White v. Smith, 645 So. 2d 875 (Miss. 1994) (postmortem nunc pro tunc divorce permissible where all matters were finally adjudicated and parties had consented)