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FAYE HARMON BANKS v. FRANK R. BANKS

AUGUST 19, 1987

FAYE HARMON BANKS
v.
FRANK R. BANKS, M.D.



BEFORE WALKER, C.J., ANDERSON AND GRIFFIN, JJ.

GRIFFIN, JUSTICE, FOR THE COURT:

This case, concerning the modification of a divorce decree, comes to the Court from the Chancery Court of the First Judicial District of Hinds County, which awarded a $250 per month increase in alimony, plus $1,604, representing half the cost of major repairs to a jointly owned home. We affirm.

On July 6, 1976, the chancery court granted a divorce to Faye Harmon Banks, providing her with $1,750 per month as alimony. On April 17, 1980, the chancery court denied Dr. Frank R. Banks' motion to abrogate the alimony payments, required by the decree.

 On October 4, 1983, Faye Harmon Banks filed a motion, seeking to increase the monthly alimony. On October 23, 1985, the chancellor heard evidence on the motion, and at its conclusion stated," I am inclined to think that Mrs. Banks is entitled to an increase in alimony of $500 a month, which would put it up to $2,250, which would reflect the diminution of the buying power of the $1,750 from 1980 on. "

 Continuing, he said," That will be the judgment of the Court, that the alimony be increased to $2,250 per month. . . . "

 On October 24, 1985, the chancellor, on his own motion, filed an amended opinion, awarding only an additional $250 per month in alimony. On November 13, 1985, the chancellor entered final judgment, again awarding $2,000 per month, a $250 per month increase. The chancellor also awarded $1,604 to Faye Harmon Banks, representing half the cost of repairs to her home.

 I.

 On appeal, Faye Harmon Banks contends that the chancellor erred when he modified the judgment voiced in open court at the hearing's conclusion, awarding her an additional $500 per month in alimony. In fact, she maintains that the chancellor was powerless to change or modify his oral judgment, absent a motion by either party.

 Historically, this Court has recognized that" every decree is in the breast of the court until entered and a decree has no validity until written out and signed by the chancellor. "Orr v. Myers, 223 Miss. 856, 862, 79 So.2d 277, 278 (1955). Similarly, V. Griffith, Mississippi Chancery Practice 621 (1950) states,

 [I]n equity the decrees are of such an elaborate and flexible character that the drawing of them is not, as at law, a mere ministerial matter to be left to the clerk, but they must be drawn up in writing by the solicitors and signed by the chancellor before delivery to the clerk, and that a decree has no validity until so written out and signed. When, however, that has been done and the decree has been delivered to the clerk for entry it becomes effective as between the parties from that date. . .

 Though previously a circuit judge could render a binding oral judgment at a trial's conclusion, Dapsco, Inc. v. Walters, 243 Miss. 427, 440, 135 So.2d 850 (1961), Welch v. Kroger Grocery Co., 180 Miss. 89, 95, 177 So. 41, 42 (1937), the Court later made the rule uniform, finding that the" date of rendition of the judgment of the circuit court in term time, as well as in vacation, is the date when the judgment is signed by the judge and filed with the clerk for entry on the minutes. . . . "Jackson v. Schwartz, 240 So.2d 60, 61-2 (1970).

 More recently, we adopted the Mississippi Rules of Civil Procedure. M.R.C.P. 54 (a) defines judgment as a" final decree and any order from which an appeal lies. "Miss. Code Ann. 11-51-3 (1972) also states that only final judgments are subject to appeal. See also, Sanford v. Board of Supervisors, Covington County, 421 So.2d 488, 490 (Miss. 1982), Cotton v. Veterans Cab Co., 344 So.2d 730, 731 (Miss. 1977).

 The Comment to Rule 54 reads, in part:

 Although it is not specifically described in the rule itself, there are several different stages that lead to the creation of a judgment that is final and appealable. It is important to differentiate the various steps that are part of this process. The first distinction is between the adjudication, either by a decision of the court or a verdict of the jury, and the judgment that is entered thereon. The terms" decision "and" judgment "are not synonymous under these rules. The decision consists of the court's findings of ...


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