Wanda Johnson v. Ira Johnson, Jr.
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2008-CA-00230-COA
WANDA JOHNSON
APPELLANT
v.
IRA JOHNSON, JR.
DATE OF JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEY FOR APPELLANT:
ATTORNEY FOR APPELLEE:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
APPELLEE
11/20/2007
HON. JANE R. WEATHERSBY
WASHINGTON COUNTY CHANCERY
COURT
MINOR F. BUCHANAN
MICHAEL WAYNE BOYD
CIVIL - CUSTODY
DIVORCE GRANTED ON GROUND OF
IRRECONCILABLE DIFFERENCES AND
PHYSICAL CUSTODY OF MINOR CHILD
AWARDED TO IRA JOHNSON
REVERSED AND REMANDED - 11/03/2009
BEFORE MYERS, P.J., IRVING AND BARNES, JJ.
BARNES, J., FOR THE COURT:
¶1.
This case comes on appeal from the Washington County Chancery Court’s grant of
a divorce on the ground of irreconcilable differences to Wanda Johnson and Ira Johnson, Jr.
The chancellor also awarded sole physical custody of the couple’s minor child to Ira. It is
from this judgment Wanda now appeals. As Ira confesses reversible error, we reverse and
remand for further proceedings in the chancery court.
SUMMARY OF FACTS AND PROCEDURAL HISTORY
¶2.
Wanda and Ira were married on June 21, 1980, and resided in Greenville, Mississippi.
Two children were born of the marriage: Kira, born July 22, 1982, who at all times relevant
to this case is emancipated, and Amber, born November 30, 1989. After several years
without intimacy in the marriage, Ira left the domicile in September 2004. Amber remained
with Wanda.
¶3.
On August 4, 2006, Wanda filed a petition for child custody and support. Ira filed an
answer on October 10, 2006, confessing custody and support. Ira also counter-claimed for
divorce based on fault grounds and, alternatively, on the ground of irreconcilable differences.
Ira’s filing did not include a required anti-collusion certificate. Ira then filed an amended
complaint for divorce on August 8, 2007, without leave of the court, seeking custody of
Amber and providing the anti-collusion certificate.
¶4.
A trial was held on November 20, 2007, with the chancellor’s granting a divorce on
the ground of irreconcilable differences and awarding joint legal custody of Amber to both
parents and physical custody to Ira. The judgment also contained other orders relating to
property division and awarded attorney’s fees to Ira. The order was entered on January 7,
2008. Wanda now appeals the chancery court’s judgment.
STANDARD OF REVIEW
¶5.
“We will not reverse the decision of a chancery court unless the chancellor abused his
or her discretion, was manifestly in error, or applied an erroneous legal standard.” Engel v.
Engel, 920 So. 2d 505, 508 (¶10) (Miss. Ct. App. 2006).
¶6.
Wanda’s first claim is that the chancellor’s judgment of divorce, which was granted
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on January 7, 2008, nunc pro tunc to November 20, 2007, was erroneous based on the fact
that the parties had never executed a written agreement for an irreconcilable differences
divorce, had not withdrawn the fault grounds, and had not executed a consent for the
chancellor to rule on contested matters. Mississippi Code Annotated section 93-5-2 (Supp.
2008) governs the award of a divorce based on irreconcilable differences.
“[W]hen a
divorce is sought on the ground of irreconcilable differences, the parties shall enter a written
agreement resolving matters of property division, which must then be approved by the
chancellor.” Ash v. Ash, 877 So. 2d 458, 460 (¶11) (Miss. Ct. App. 2003) (citing Rounsaville
v. Rounsaville, 732 So. 2d 909, 910 (¶6) (Miss. 1999)) (emphasis added). Subsection (3) of
93-5-2 provides, however, that if a couple is unable to agree on provisions related to custody
or property rights, they may consent to a divorce on the ground of irreconcilable differences
and have the court “decide the issues upon which they cannot agree.” Miss. Code Ann. § 935-2(3). In Irby v. Estate of Irby, 7 So. 3d 223, 238 (¶50) (Miss. 2009), the Mississippi
Supreme Court stated:
[T]he consent (1) must be in writing and signed by both parties; (2) must state
that the parties voluntarily consent to permit the court to decide the issues upon
which the parties cannot agree; (3) must specifically set forth the issues upon
which the parties are unable to agree; and (4) must state that the parties
understand that the decision of the court shall be a binding and lawful
judgment.
These provisions must be strictly followed. Perkins v. Perkins, 787 So. 2d 1256, 1264 (¶24)
(Miss. 2001).
¶7.
Accordingly, one of the main conditions in the granting of a divorce under section
93-5-2 is that neither spouse contest it. Irby, 7 So. 3d at 238 (¶49). The supreme court stated
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that subsection (5) of section 93-5-2, which is to be read in conjunction with subsection (3),
“mandates that a contest or denial be withdrawn or canceled, by leave and order of the court,
by the party who filed the contest or denial.” Id. at 239 (¶54). “This is a procedural
safeguard which has existed within the framework of [s]ection 93-5-2 since its
promulgation.” Id. at 239-40 (¶54). Therefore, the Mississippi Supreme Court in Irby
reasoned that, if a party meets the procedural requirements of subsection (3), compliance
with subsection (5) is no longer necessary. Id. at 240 (¶54).
¶8.
However, in the present case, the parties failed to comply with either subsection (3)
or subsection (5). There was discussion between counsel at trial which revealed that no
written consent was ever entered into by the parties. Evidence of an e-mail between the
attorneys, which was read and referred to at trial, also showed that the parties had not reached
an agreement at the time of trial, and that the parties were still arguing over what the
specifics of the agreement would be. Additionally, Ira never sought leave of the court to
withdraw his fault-based complaint. In recognition of the requirements under section 93-5-2,
Ira has filed a “Confession of Appeal” in which he agrees that the statutory filing
requirements were not met at trial, and that Wanda is entitled to a new trial. In light of Ira’s
admission and our review of the record, we find that the grant of a divorce by the chancellor
failed to comply with subsections (3) or (5) of Mississippi Code Annotated section 93-5-2.
¶9.
Therefore, as Ira has confessed reversible error, we reverse and remand for further
proceedings in the chancery court. In light of our disposition of the case, we do not reach the
other issues raised by Wanda.
¶10.
THE JUDGMENT OF THE CHANCERY COURT OF WASHINGTON
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COUNTY IS REVERSED, AND THIS CASE IS REMANDED FOR FURTHER
PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS
APPEAL ARE ASSESSED TO THE APPELLEE.
KING, C.J., LEE AND MYERS, P.JJ., IRVING, GRIFFIS, ISHEE, ROBERTS,
CARLTON AND MAXWELL, JJ., CONCUR.
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