Julia Lynn Gates Horowitz v. James Winfred Parker, Jr.
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2002-CA-00306-COA
JULIA LYNN GATES HOROWITZ
APPELLANT
v.
JAMES WINFRED PARKER, JR.
DATE OF TRIAL COURT JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEYS FOR APPELLANT:
ATTORNEY FOR APPELLEE:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
CERTIORARI FILED:
MANDATE ISSUED:
APPELLEE
2/4/2002
HON. GAIL SHAW-PIERSON
MADISON COUNTY CHANCERY COURT
EDUARDO ALBERTO FLECHAS
JAMES D. BELL
STANLEY FRANK STATER
CIVIL - DOMESTIC RELATIONS
ORDER WAS ENTERED MODIFYING THE
VISITATION SCHEDULE AS SET OUT IN THE
ORIGINAL DIVORCE. MOTION TO REOPEN
TIME FOR APPEAL OR, IN THE ALTERNATIVE,
FOR EXTENSION OF TIME IN WHICH TO FILE
NOTICE OF APPEAL WAS DENIED.
REVERSED AND REMANDED-08/12/2003
BEFORE MCMILLIN, C.J., LEE AND IRVING, JJ.
IRVING, J., FOR THE COURT:
¶1.
James Winfred Parker, Jr. filed, in the Chancery Court of Madison County, a motion against Julia
Lynn Gates Horowitz, his former wife, seeking specific visitation rights with the parties' minor children.
Sometime after a hearing on the motion, an order granting the requested relief was entered by the chancery
court. However, neither party was informed of the court order until forty-nine days after its entry. On the
day following receipt of notice of the order, Julia filed a motion seeking to reopen or extend the time for
taking an appeal. The chancellor denied the motion, and Julia has prosecuted this appeal.
FACTS
¶2.
The proceedings occurring prior to the entry of the order are not relevant to the resolution of the
issue before us; therefore, we omit a discussion of them and move directly to the reason offered by the
chancellor for denying Julia permission to file an out-of-time appeal. The chancellor's explanation was this:
Rule 4 (h) is a two-prong test to consider whether or not a motion for authority to
reopen is to be granted, one of which is that either of the parties had not received notice
from the clerk; the second part of which is that no party would be prejudiced by such
request. In light of the fact that the movant has had sufficient notice of the entry of the
court's order to comply with the court's order irrespective of any other legal strategies they
plan to undertake, I think there has been an ongoing obligation to be in compliance with
the court's order until such time as the parties have been relieved from the duties of that
order.
I believe any additional time afforded this petitioner in taking any steps that they
believe are necessary to accomplish whatever their ends are at this juncture does operate
to the prejudice of Mr. Parker; therefore, the motion for extension of time to file any
appeal or to reopen time to file an appeal is hereby denied.
ANALYSIS AND DISCUSSION OF THE ISSUE
¶3.
Julia argues that the chancery court erred by denying her motion to reopen since (1) it is undisputed
that neither party received notice of the entry of the order until after the thirty-day appeal period had
expired , and (2) she promptly filed her motion to reopen after receiving notice that the order had been
entered. Accordingly, Julia argues, the chancellor should have permitted the appeal pursuant to Rule 4
(h) of the Mississippi Rules of Appellate Procedure. On the other hand, Parker responds that the chancery
court was justified in denying Julia's motion because during the interim period of time, Julia refused to
comply with the terms and conditions of the order after belatedly receiving notice of it. He says this caused
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him to suffer prejudice of sufficient magnitude so as to justify the chancellor's refusal to allow Julia's appeal.
Additionally, Parker argues that although Horowitz timely filed a motion for permission to file an out-of-time
appeal, she made no attempt for approximately three months to bring the motion on for hearing.
¶4.
Rule 4(h) (Reopening Time for Appeal) of the Mississippi Rules of Appellate Procedure reads as
follows:
The trial court, if it finds (a) that a party entitled to notice of the entry of judgment or order
did not receive such notice from the clerk or any party within 21 days of its entry and (b)
that no party would be prejudiced, may, upon motion filed within 180 days of entry of the
judgment or order or within 7 days of receipt of such notice, whichever is earlier, reopen
the time for appeal for a period of 14 days from the date of entry of the order reopening
the time for appeal.
M.R.A.P. 4(h).
¶5.
The chancery court, on August 15, 2001, entered the order from which an appeal was sought. It
is undisputed that notice of the entry of the order was not received by either party to this dispute until
October 3, 2001. Within a day after learning that the chancellor had entered the order, Horowitz filed a
motion to reopen the time for appeal. Her filing was well within the seven days specified in the rule.
Therefore, Horowitz clearly satisfies the first of the two prongs of the rule.
¶6.
The second prong of the rule that must be satisfied is that no party would be prejudiced by the
court’s granting the reopening of time for appeal. As already discussed, the chancellor found that
Horowitz’s non-compliance with the terms and conditions of the August 15, 2001 order relative to Parker's
visitation rights was a sufficient basis to find prejudice to Parker, thereby providing adequate justification
for denying the motion. We disagree.
¶7.
According to the Rule’s comments:
"Prejudice" means some adverse consequence other than the cost of having to oppose the
appeal and encounter the risk of reversal, consequences that are present in every appeal.
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Prejudice might arise, for example, if the appellee had taken some action in reliance on the
expiration of the normal time period for filing a notice of appeal.
¶8.
In Duncan v. Duncan, 774 So. 2d 418 (Miss. 2000), our supreme court, in discussing the
provisions of Rule 4, reversed and remanded a chancellor's denial of a movant's timely-filed motion. The
court held that "[i]n limiting this decision to the facts before us and taking the rule as written, while also
noting the absence of any argument by Helen that she is in any way prejudiced, we find that the trial court
erred in failing to grant [the] motion to reopen time for appeal." Id. at 420 (¶8).
¶9.
We find that the chancery court erred when it denied Horowitz’s motion to reopen the time for
taking an appeal. The justification for denying the motion amounts to a retaliatory gesture by the court
because of Horowitz’s alleged non-compliance with the court’s August 15, 2001order. This exercise of
discretion on the part of the court is at odds with the statute’s contemplation of “prejudice.” Punishment
of Horowitz’s non-compliance can be and should be addressed through a motion for citation of contempt.1
¶10.
We find that the chancellor abused her discretion in denying Horowitz’s motion to reopen the time
for taking an appeal. Therefore, we reverse and remand the case to the chancery court with directions to
enter an order allowing Horowitz fourteen days, from the date of the order to be entered, to file a notice
of appeal, appealing the court's August 15, 2001 order.
¶11.
In light of our resolution of the issue regarding the refusal of the chancery court to reopen the time
to permit the appeal, it is not necessary for us to address whether the chancery court also erred in not
1
In this regard, we note that the record reveals that Parker filed a motion on November 19, 2001,
for contempt against Horowitz for her alleged failure to comply with the August 15, 2001 court order which
provided Parker with specific visitation rights. Horowitz subsequently filed a motion for contempt against
Parker on December 7, 2001, for his alleged refusal and/or failure to pay the required amount of child
support and maintain health insurance for their children. The hearing for these motions was continued
several times, and the motions were eventually set to be heard on November 6, 2002. Nothing in the
record indicates whether the motions were heard on this date, but neither is relevant to our disposition to
this case.
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permitting an extension of time to file the appeal. On a final matter, we note that Parker filed a motion to
strike section two of Horowitz's appellate brief. Our resolution of the issue presented by this case is not
dependant on anything contained in that section of Horowitz's brief. Consequently, we overrule the motion
to strike as moot.
¶12. THE JUDGMENT OF THE MADISON COUNTY CHANCERY COURT IS
REVERSED AND REMANDED. THE COSTS OF THIS APPEAL ARE ASSESSED TO THE
APPELLEE.
McMILLIN, C.J., KING AND SOUTHWICK, P.JJ., BRIDGES, THOMAS, LEE,
MYERS AND GRIFFIS, JJ., CONCUR. CHANDLER, J., NOT PARTICIPATING.
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