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Carter v. Carter

September 29, 1998

WENDEE GAIL WORTMAN CARTER APPELLANT
v.
BILLY MICHAEL CARTER APPELLEE



McMILLIN, P.j., Diaz, And King, JJ.

The opinion of the court was delivered by: McMILLIN, P.j., For The Court

DATE OF JUDGMENT: 12/30/96

TRIAL JUDGE: HON. WILLIAM JOSEPH LUTZ

COURT FROM WHICH APPEALED: MADISON COUNTY CHANCERY COURT

NATURE OF THE CASE: CIVIL - DOMESTIC RELATIONS

TRIAL COURT DISPOSITION: APPELLEE AWARDED CUSTODY OF MINOR CHILD

¶1. This case is before the court on an appeal by Wendee Carter. She seeks to reverse two rulings issued in the Chancery Court of Madison County. The first ruling denied her petition for contempt brought against her former husband, Billy Carter, for failure to pay child support. The second ruling amended the original judgment of divorce to change custody of the two minor children of the parties from Mrs. Carter to Mr. Carter. We affirm the chancellor.

I.

Preliminary Jurisdictional Question

¶2. Mr. Carter raises the issue of whether this Court has jurisdiction to consider the chancellor's ruling on the contempt aspects. He claims that this issue was decided separately by the chancellor and there was not a timely notice of appeal from the order ruling on non-payment of child support.

¶3. Mr. Carter filed a motion seeking a modification of custody of the children on April 4, 1996. Mrs. Carter filed her motion for contempt for non-payment of child support on April 12. On April 19, she filed a separate written response to Mr. Carter's motion to change custody. The chancellor ruled on the contempt motion, denying relief, by order entered on August 30. The chancellor subsequently ruled on the custody modification by order entered on December 30. Mrs. Carter filed her notice of appeal on January 6, 1997.

¶4. It is axiomatic that only final orders are appealable. Grey v. Grey, 638 So. 2d 488, 492 (Miss. 1994). In the context of cases involving questions of family law, the issue of finality for purposes of appeal is somewhat unique since the chancery court retains jurisdiction of such matters as periodic alimony, child support, and child custody. It is possible that, over the course of an extended number of years, the court may be called upon to resolve any number of disputes, yet all of those disputes arise in the same proceeding. In some instances, there may arise legitimate questions of when a particular ruling is final for purposes of appeal. Under our current rules of procedure, it is envisioned that these recurring disputes, including contempt and custody modification proceedings, will be brought to the court's attention "by complaint or petition only . . . ." M.R.C.P. 81 cmt. Though both parties in this case persist in calling their pleadings "motions," the comment specifically states that "[i]nitiating Rule 81(d) actions by "motion" is not intended." M.R.C.P. 81 cmt.

¶5. In order to determine the finality of the chancellor's ruling on the contempt matter, we must discover how these competing pleadings were treated procedurally. The chancellor correctly elected to treat the pleadings as what they actually represented, rather than to accept the incorrect nomenclature provided by the parties. Bruce v. Bruce, 587 So. 2d 898, 904 (Miss. 1991). It is obvious that Mr. Carter's pleading seeking modification of custody must be seen as either a complaint or petition under Rule 81. The question then arises as to whether to treat Mrs. Carter's subsequent motion for contempt as a counterclaim or as a separate Rule 81 complaint or petition commencing a separate proceeding. We observe that the chancellor elected to treat the contempt motion as a counterclaim even though Mrs. Carter did not identify it as one. In his order dealing with the contempt issue, the chancellor stated as follows: Billy Michael Carter (Mike) filed a petition to modify custody. Wendee Gail Wortman Carter (Wendee) his former wife who has primary custody of their minor children answered and counterclaimed to cite Mike in contempt for failure to pay child support. (emphasis supplied).

¶6. We are of the opinion that the chancellor was acting within his discretion when he recast the pleadings in this manner. Because the chancellor elected to treat Mrs. Carter's separate pleading as a counterclaim, it is clear under our procedural rules that the order disposing of the counterclaim did not have the requisite finality to make it appealable. M.R.C.P. 54(b). Thus, until all aspects of the proceeding were resolved, there was no right to appeal. The final resolution of all issues then pending before the chancellor did not occur until December 30, 1996. Mrs. Carter filed her appeal notice within thirty days from that date. This vested jurisdiction in this Court to consider all matters ruled on by the chancellor, including specifically, the issue of contempt.

ΒΆ7. By our holding, we do not mean to suggest that every post-divorce petition or complaint filed while some other claim advanced by the other party remains unresolved must be treated as a counterclaim. We only hold that the chancellor may, in the exercise of the discretion afforded to the trial courts to manage their own dockets, affirmatively elect to treat it as such. It may be that, in some circumstances, the first matter will have progressed so far toward final resolution that to permit the defending party to delay the finality of the court's decision by simply filing a new claim would be inequitable. In such case, the chancellor may, in the exercise of discretion, elect to treat this subsequent pleading as a separate proceeding. We only sound a note of caution that, in instances where there may be some question on the proper treatment of the second claim, the chancellor should speak on the record with some measure of certainty as how the competing pleadings are being handled procedurally. In the absence of a ...


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