Matthew Ryan Macaw, attorney for appellant.
Phillip M. Whitehead, attorney for appellee.
Before LEE, C.J., FAIR and JAMES, JJ.
¶ 1. This appeal addresses the requirement for a written consent agreement for parties to proceed in obtaining a divorce on the ground of irreconcilable differences under Mississippi Code Annotated section 93-5-2(3) (Supp.2012).
FACTS AND PROCEDURAL HISTORY
¶ 2. On October 21, 2010, Randy Reno filed a complaint for divorce against Casey Reno on the grounds of habitual and excessive use of opium, morphine, or other like drug; habitual cruel and inhuman treatment; and, in the alternative, irreconcilable differences. Casey filed an answer and counterclaim, denying both the habitual and excessive drug use and the cruel and inhuman treatment and asserting irreconcilable differences. Casey also alleged that venue was improper in Tishomingo County Chancery Court, where Randy had originally filed. On December 17, 2010, the case was transferred to the DeSoto County Chancery Court.
¶ 3. On May 26, 2011, Randy filed an amended complaint for divorce to include adultery along with the grounds he originally asserted. Casey filed her answer, denying the contested grounds for divorce but again admitting that irreconcilable differences existed between the parties.
¶ 4. On November 16, 2011, a hearing was held in DeSoto County Chancery Court. Before the trial began, the parties informed the chancellor that they wished to proceed on the ground of irreconcilable differences. The chancellor stated from the bench:
In order for the Court to proceed on the ground[ ] of irreconcilable differences, I have to have both of your consent[s].... Normally, the consent is reduced to writing[,] ... but there's ... case law that allows us to take testimony from y'all about your consent[; ] then it will be reduce[d] to writing in the form of the divorce decree.
If [it is your agreement], and you agree that you are entering into this consent and that you will sign the consent agreement, the divorce decree, once it is presented, then— and you understand that once you enter into this consent, you can't change your mind. You can't back out. I'm going to proceed on irreconcilable differences.... And after you tell me that, even if you change your mind and decide, I'm not going to sign it. Well, you've already consented, you told me you are going to sign it, so I will sign it whether you sign it or not.
The chancellor then questioned both parties about their consent, and both parties consented to a divorce on the ground of irreconcilable differences. Additionally, both parties consented that they would keep the property currently in their respective possessions. Although the parties gave verbal consent at the hearing, no written consent was ever filed. The only issue submitted to the chancellor was the custody of the children.
¶ 5. After hearing testimony and evidence, the chancellor awarded Randy primary physical custody of the children and awarded Casey visitation. The final judgment of divorce was entered on January 24, 2012, nunc pro tunc to November 16, 2011. No post-trial motions were filed by either party. Casey now appeals, ...