204 So. 3d 854
Miss. Ct. App.2016Background
- Wesley and Catherine Patrick married in 2009, separated in 2012, and have one child born in 2011. Wesley filed for divorce alleging adultery and cruel and inhuman treatment; Catherine admitted adultery.
- During the custody proceedings Wesley alleged Catherine neglected/abused the child; the chancery court appointed DHS to investigate and a guardian ad litem (GAL). The initial order required Wesley to initially pay GAL fees subject to later assessment.
- At the 2014 trial the chancellor granted divorce to Wesley on the ground of Catherine’s admitted adultery, found both parents unfit for custody, and placed the child with DHS/foster family.
- The chancery court awarded Wesley the marital home (with mortgage) but ordered him to pay Catherine $6,000 for her interest, gave him two older vehicles, assessed GAL fees (minus $1,500 Wesley had paid), and awarded Catherine $12,910.04 in attorney’s fees to be paid by Wesley.
- After motions for reconsideration, the parties, with the GAL’s assistance, signed a January 22, 2015 Consent Order providing joint legal and physical custody and stating “all other matters contained in the original decree of divorce are confirmed and shall remain in full force and effect.” Wesley and his attorney signed “APPROVED AS TO CONTENT AND AS TO FORM.”
- Wesley appealed challenging property division, attorney’s-fee award, and allocation of GAL fees. Catherine did not file an appellate brief; the Court reviewed whether Wesley’s consent precluded his appellate challenges.
Issues
| Issue | Plaintiff's Argument (Wesley) | Defendant's Argument (Catherine) | Held |
|---|---|---|---|
| Whether the property division (home equity allocation) was erroneous | Division was inequitable; chancellor failed to make required findings | (No brief filed) Consent order confirmed original decree | Court held Wesley waived challenge by consenting to the consent order that confirmed the original decree |
| Whether awarding Catherine attorney’s fees to be paid by Wesley was erroneous | Fees improper or unsupported; chancellor erred in awarding them | (No brief filed) Consent order confirmed original decree | Held waived by Wesley’s consent; he may not relitigate merits of consent judgment |
| Whether assessment requiring Wesley to pay remaining GAL fees was improper | GAL-fee allocation unsupported | (No brief filed) Consent order confirmed original decree | Held waived by Wesley’s consent; appeal on merits barred |
| Whether the appeal is procedurally barred by failure to file appellee brief | N/A — Wesley pressed merits | Catherine failed to brief; Court may treat as confession of error or affirm if record supports affirmance | Court affirmed because record showed a clear basis to affirm: Wesley consented to the decree, barring merits review absent fraud/mistake |
Key Cases Cited
- Jay Foster PLLC v. McNair, 175 So. 3d 565 (Miss. Ct. App. 2015) (discussing options when appellee fails to file brief)
- Archie v. City of Canton, 92 So. 3d 1279 (Miss. Ct. App. 2012) (same)
- Sanghi v. Sanghi, 759 So. 2d 1250 (Miss. Ct. App. 2000) (party generally may not appeal a judgment entered by consent)
- Peebles v. Peebles, 153 So. 3d 728 (Miss. Ct. App. 2014) (consent judgments bar appellate review of matters settled by consent except Rule 60(b)-type claims)
- Rushing v. Rushing, 724 So. 2d 911 (Miss. 1998) (consent judgments cannot be appealed to relitigate settled matters)
- Chase v. State, 171 So. 3d 463 (Miss. 2015) (motion for reconsideration treated as Rule 59(e) motion)