Before Sullivan, P.j., Banks And Roberts, JJ.
The opinion of the court was delivered by: Sullivan, Presiding Justice,
DATE OF JUDGMENT: 08/06/96
TRIAL JUDGE: HON. FRANKLIN C. McKENZIE, JR.
COURT FROM WHICH APPEALED: JONES COUNTY CHANCERY COURT
NATURE OF THE CASE: CIVIL - DOMESTIC RELATIONS
DISPOSITION: REVERSED AND REMANDED - 12/17/98
¶1. This is an appeal from a judgment of divorce in the case of Stephen and Kathy Cook. After each filing separate divorce complaints, on July 10, 1996, the Cooks filed a joint motion for the court to grant a divorce on grounds of irreconcilable differences. Therein, the parties agreed that Mrs. Cook would have custody of the children. They submitted the following issues to the court for determination: a) child support, b) alimony, c) distribution of marital property, d) visitation, e) allocation of marital debts, and f) attorney's fees and court costs. On July 10, during trial, the parties made an ore tenus motion to modify the consent agreement. Mr. Cook's attorney, Tucker Buchanan, dictated the agreement into the record. The parties agreed that Mr. Cook would pay Mrs. Cook $550 per month in child support, maintain medical insurance for the children, and pay any non-covered medical, dental, and optometric expenses on behalf of the children. He also agreed to assume the parties' debts and pay Mrs. Cook $300 per month for the next ten months. Mrs. Cook agreed to quit claim her interest in the marital home to Mr. Cook, and vacate the premises by January 15, 1997. Each party agreed to keep the personal property in his/her possession, with the exception of half of the family photos in Mrs. Cook's possession, which she agreed to turn over to Mr. Cook. By the parties' agreement, Mr. Cook would also receive an oil painting of the house and the heater purchased by the couple in the fall which had not yet been installed. The only remaining issue for the court to determine was the terms and conditions of visitation.
¶2. After hearing testimony limited to the issue of visitation, Judge McKenzie ordered that the parties would be granted a divorce upon grounds of irreconcilable differences as stipulated in their consent agreement. He stated that the divorce decree would incorporate the modifications to the consent agreement as dictated into the record. The Judge further ordered that testifying psychologist Dr. Charlotte Rahaim's recommendations regarding visitation would be incorporated into the final decree. In the Final Judgment of Divorce, Judge McKenzie set out the terms of the consent agreement as described above. He also specified that Mr. Cook would be entitled to visitation with the children on the third weekend of each month from Friday at 5:00 p.m. until Sunday at 6:00 p.m. beginning on July 19, 1996.
¶3. Mrs. Cook appeals to this Court, and assigns as error the trial court's award of an irreconcilable differences divorce without a written consent agreement from the parties or court adjudication on the issues of property distribution and alimony. "The chancellor's decree of divorce will not be reversed unless it is manifestly wrong as to law or fact." Benson v. Benson, 608 So.2d 709, 710-11 (Miss. 1992). Finding that the trial court manifestly erred in failing to address the issue of alimony in the judgment of divorce and in allowing the parties to amend their consent agreement orally, we reverse the decision of the chancellor and remand this case to the Jones County Chancery Court for further proceedings consistent with this opinion.
THE CHANCELLOR WAS MANIFESTLY IN ERROR BY GRANTING THE PARTIES A DIVORCE ON THE GROUNDS OF IRRECONCILABLE DIFFERENCES WITHOUT HAVING FIRST RECEIVED A WRITTEN PROPERTY SETTLEMENT AGREEMENT OR WITHOUT ADJUDICATING ALL OF THE PROPERTY RIGHTS RAISED BY THE PARTIES UPON THEIR PLEADINGS.
¶4. The statute governing an award of divorce on grounds of irreconcilable differences, § 93-5-2, states in relevant part:
If the parties provide by written agreement for the custody and maintenance of any children of that marriage and for the settlement of any property rights between the parties and the court finds that such provisions are adequate and sufficient, the agreement may be incorporated in the ...