Queen v. QueenQueen v. Queen
I.
Raiford L. Queen appeals a final judgment of divorce entered in the Chancery Court of Adams County, Mississippi, on June 26, 1987. Raiford complains not that his former wife, Gloria Middleton Queen, was granted a divorce on grounds of habitual cruel and inhuman treatment, but that he was ordered to pay her alimony — to be specific, $4,000.00 in lump sum alimony, payable in installments. The grounds for Raiford‘s appeal are procedural: that Gloria‘s complaint made no timely demand for alimony.
Gloria‘s original complaint did not claim alimony. The case went to trial in that posture. After the final judgment of divorce was entered, Raiford moved to alter or amend the judgment to delete “any and all awards of alimony.” Gloria then moved for leave to amend her complaint to include a request for alimony.
This appeal has followed.
A.
At the outset we note that Gloria, as Appellee, was four months tardy in filing her brief. When she did file it, the Court, upon Raiford‘s motion, ordered it stricken. Reversal is not required, however, if we may say with confidence there was no error below. See Dethlefs v. Beau Maison Development Corp., 458 So.2d 714, 717 (Miss. 1984); State v. Maples, 402 So.2d 350, 353 (Miss. 1981); Burt v. Duckworth, 206 So.2d 850, 853 (Miss. 1968); Ford v. City of Pascagoula, 228 Miss. 265, 270-71, 87 So.2d 558, 589-60 (1956). This policy is but a function of the (quite rebuttable) presumption of correctness we accord orders and judgments of our trial courts. Edlin v. State, 533 So.2d 403, 410 (Miss. 1988); Clark v. State, 503 So.2d 277, 280 (Miss. 1987); Blackwell v. Sessums, 284 So.2d 38, 39 (Miss. 1973); Shelton v. Kindred, 279 So.2d 642, 644 (Miss. 1973); Walker v. Jones County Community Hospital, 253 So.2d 385 (Miss. 1971).
In route to affirmance in Ford, we said We have concluded ... on the basis of the appellant‘s assignment of errors and its brief in support thereof, together with a careful examination of the record in the case, that the filing of a brief by the appellee is unnecessary to the proper disposition of this appeal.
228 Miss. at 270, 87 So.2d at 559. The appropriateness of these words will become apparent.
B.
There is a second preliminary point. Where one such as Raiford seeks on appeal to complain that his adversary proved and obtained relief on a point not pleaded, he must show that he timely objected at trial. See
It is elementary that a party seeking reversal of the judgment of a trial court must present this Court with a record adequate to show that an error of reversible proportions has been committed and that the point has been procedurally preserved. Moawad v. State, 531 So.2d 632, 635 (Miss. 1988); Williams v. State, 522 So.2d 201, 209 (Miss. 1988); Williams v. State, 522 So.2d 201, 209 (Miss. 1988); Winters v. State, 473 So.2d 452, 457 (Miss. 1985); Shelton v. Kindred, 279 So.2d 642, 644 (Miss. 1973). While we overlook procedural niceties at times where fundamental rights are at stake, see Brooks v. State, 209 Miss. 150, 155, 46 So.2d 94, 97 (1950), we know of no authority for pretermitting the requirement of a record reflecting the error.
Raiford‘s failure to provide a transcript has a further effect of importance. Established law of appeal and error requires that we presume Gloria‘s evidence legally adequate that she may be awarded the alimony decreed. Wade v. Wade, 419 So.2d 584, 585 (Miss. 1982); Fontaine v. Pickle, 254 So.2d 769, 770 (Miss. 1971); Harvey v. Dunaway Bros., 232 Miss. 89, 100, 98 So.2d 143, 147-48 (1957); Tate v. Colvard, 174 Miss. 624, 628, 165 So. 433, 434 (1936).
III.
The Chancery Court awarded Gloria lump sum alimony. Raiford makes no claim of evidentiary insufficiency. Rather, in this his appeal “strictly on the pleadings,” Raiford argues that Gloria‘s originally deficient complaint rendered the Chancery Court impotent to award alimony.
Prior to the advent of our Civil Rules, that is, before January 1, 1982, the Chancery Court had no authority to order payment of alimony absent an express demand
Where a party offers proof on an issue not pleaded, e.g., alimony in a divorce action, her opponent upon timely and proper objection may of right demand that the evidence be excluded. Nothing in the Mississippi Rules of Civil Procedure alters this rule of fundamental fairness. Rankin v. Brokman, 502 So.2d 644, 646 (Miss. 1987); Bell v. First Columbus National Bank, 493 So.2d 964, 968 (Miss. 1986); Johnson v. Franklin, 481 So.2d 812, 815 n. 4 (Miss. 1985).
Yet we are told — not by Raiford but by our colleagues in dissent — that
This brings us back to Raiford‘s failure to present us with a transcript. The time to object to consideration of alimony was when Gloria first sought to offer proof on the point. As an appellant Raiford is burdened to present us with a record reflecting that he timely raised the point and that the Chancery Court proceeded, his objection notwithstanding. His failure to present us a transcript is thus fatal to his appeal.
There is a second and related point. On May 22, 1987, after the Chancery Court had announced its decision but before entry of final judgment Raiford moved to reconsider on the point of alimony award. At no point in his motion does he complain of inadequacy of proof of entitlement to alimony or of the Chancery Court‘s overruling his objection, if any, to Gloria‘s proof on the point. Raiford‘s sole ground is “the absence of a specific prayer for alimony.”
After final judgment, Raiford moved to delete the alimony award,
IV.
Two questions are presented. First, does
Second, we consider whether the Court has awarded “judgment ... for a monetary amount greater than that demanded in the ... amended pleadings.” [Emphasis supplied] Even as amended, no “amount” of alimony has been demanded. So seen, the mechanical jurisprude may well consider that arid legal logic requires striking from the judgment the alimony award. The content of our law, however, is informed by experience, as well as logic. Because the amount and form of alimony to be awarded incident to a divorce are so much a matter within the discretion of the chancery court, parties and attorneys have long placed the issue before the court by demands expressed as “an award of alimony in such amount and in such form, payable at such intervals, as the court may deem fair and equitable under the circumstances to be developed at trial,” or some such equivalent language. We are not about to hold that
Accordingly, we hold that the demand for alimony as found in Gloria‘s amended complaint was sufficient to empower the Court to make the alimony award included in the final judgment, notwithstanding the caveat appearing in
AFFIRMED.
ROY NOBLE LEE, C.J., and PRATHER, ANDERSON and BLASS, JJ., concur.
DAN M. LEE and HAWKINS, P.JJ., and SULLIVAN and PITTMAN, JJ., dissent by separate written opinion.
HAWKINS, P.J., dissents by separate written opinion.
DAN M. LEE, Presiding Justice, dissenting:
Because I believe that the majority opinion evades the real issue in this appeal and reaches a result totally unsupported by the record, I respectfully dissent.
The basic fallacy in the majority opinion is that it assumes a fact not in the record. While I do not challenge the legal analysis developed in the majority opinion, unfortunately that analysis has no application to the facts of this case, insofar as the record reveals.
The majority infers that the issue of alimony was tried by the implied consent of the parties, although there is no evidence in the record to support that inference. The majority makes repeated reference to Gloria‘s “proof” on the point of alimony, although the record reflects no such proof. Then, proceeding on the assumption that proof was offered on that point, the majority finds that Raiford‘s failure to supply this Court with evidence that he timely objected to Gloria‘s “proof” is fatal to his appeal.
Having concluded that the alimony issue was tried by implied consent of the parties, the majority then launches into an analysis of Rules 15(b) and 54(c) of the Mississippi Rules of Civil Procedure. This, in spite of the fact that neither the applicability nor inapplicability of those rules has been raised by either party on appeal.
A review of the facts may be helpful. Gloria and Raiford Queen were married on September 28, 1985. They separated on December 5, 1986, slightly more than a year later. No children were born of the marriage. On January 15, 1987, Gloria filed a complaint for divorce on the grounds of habitual cruel and inhuman treatment. As the majority notes, the complaint made no demand for alimony, and no amendment to the complaint was sought prior to entry of the final decree of divorce. Nevertheless, the divorce decree, dated June 26, 1987, awarded Gloria lump sum alimony in the amount of $4,000.00. On July 2, 1987, Raiford moved to amend the judgment to exclude the award of alimony, on the ground that no request for alimony had been made in the pleadings. On September 9, 1987, the chancellor denied Raiford‘s motion, and granted Gloria‘s oral
In my opinion, the learned chancellor erred in awarding alimony to Mrs. Queen when it had not been requested in the pleadings. As stated in J. Bunkley and W. Morse, Amis on Divorce and Separation in Mississippi § 6.05 (1957):
Since permanent alimony is as much a matter of affirmative relief to the wife as is the divorce, it follows that her bill, or cross-bill, should contain a prayer for alimony. This is necessary in order that the husband may know the nature and extent of her demand and prepare his defense accordingly. It often happens that the wife sues her husband for divorce but does not desire or demand alimony, and it would be manifestly unfair to the husband to award permanent alimony on a mere bill for divorce without any notice to him that it would be demanded.
(Emphasis added).
To be sure, our statutory law gives a chancellor considerable latitude in the awarding of alimony.
Our case law has long held, however, that it is a violation of due process to award alimony against a spouse when the issue of alimony was not raised in the pleadings. See, e.g., Diamond v. Diamond, 403 So.2d 129 (Miss. 1981); Fondren v. Batton, 348 So.2d 431 (Miss. 1977); Rhodes v. Rhodes, 336 So.2d 1315 (Miss. 1976). These cases have made it clear that due process requires fair notice, by an appropriate pleading, that alimony is being sought so that the other party to the divorce might have a reasonable opportunity to offer evidence on the matter. It hardly needs to be said that a due process violation of this type could not be cured by an amended pleading after entry of final judgment.
It is true that under
As to this body of case law, then,
If evidence existed that the issue of alimony was, in fact, tried by implied consent of the parties, and if Gloria intended to raise the
Had the chancellor made conclusions of law establishing that alimony was awarded against Raiford under the authority of
Accordingly, I would reverse the chancellor‘s granting of lump sum alimony and render judgment for the appellant on that issue.
Alternatively, on the authority of Tricon Metals & Services, Inc. v. Topp, 516 So.2d 236 (Miss. 1987), I would remand this case to the Chancery Court of Adams County with instructions that the Chancery Court state its conclusions of law on the issue of alimony. With those conclusions of law before us, this Court would be in a far better position to decide the applicability of Miss.R.Civ.Proc.
HAWKINS, P.J., and SULLIVAN and PITTMAN, JJ., join this dissent.
HAWKINS, Presiding Justice, dissenting:
I join Justice Dan Lee‘s dissent to the limited extent of the final paragraph recommending alternatively that this case be remanded to the chancery court under the appropriate guidelines.