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McNeese v. McNeese

Supreme Court of Mississippi

October 10, 2013

Kenton Hal McNEESE
v.
Katherine J. McNEESE (Graves).

Rehearing Denied Jan. 9, 2014.

Page 126

Kenton H. McNeese, appellant, pro se.

Sheila H. Smallwood, Petal, attorney for appellee.

Before WALLER, C.J., CHANDLER and KING, JJ.

WALLER, Chief Justice.

¶ 1. Kenton McNeese appeals from the dismissal of his Rule 60(b) Motion for Relief from Judgment and Other Relief in the Chancery Court of Lamar County. Finding that the trial court erroneously ruled that it lacked jurisdiction to hear Kenton's Rule 60(b) motion, but also concluding that the trial court did not err in denying the motion, we affirm in part and reverse in part.

¶ 2. On May 1, 2012, Kenton filed his Rule 60(b) Motion for Relief from Judgment and Order and Other Relief.[1] This Rule 60(b) motion was filed with respect to a judgment of divorce from which Kenton already had perfected an appeal (" first appeal" ). At that time, his first appeal was pending in this Court. In response, his former wife Katherine (" Katye" ), filed a motion to dismiss and requested that Kenton be required to pay attorneys' fees. The trial court denied Kenton's motion for relief and granted Katye's motion to dismiss and request for attorneys' fees on July 20, 2012. The trial court ruled that the Rule 60(b) motion was not timely and that the court lacked jurisdiction " due to the pendency of the case's appeal to the

Page 127

Mississippi Supreme Court...." The trial court also found that Kenton's motion was frivolous and without substantial justification and that it was interposed for delay and harassment and, therefore, imposed a $1,000 sanction against Kenton to be applied toward Katye's attorneys' fees. Kenton again appeals (" second appeal" ).

STATEMENT OF FACTS

Divorce

¶ 3. The case history pertaining to the parties' divorce is taken from this Court's opinion on Kenton's first appeal: [2]

Kenton and Katherine (" Katye" ) McNeese were married on December 9, 2006. They have one child, Hattie, born in January 2009. Katye filed for divorce on October 1, 2010, alleging habitual cruel and inhuman treatment, or in the alternative, irreconcilable differences. The parties agreed to a temporary custody agreement pending trial. On the first day of trial, the parties entered into a consent agreement to an irreconcilable differences divorce. They agreed to let the court determine child custody, visitation, support issues, division of marital assets, and alimony.
Trial was held on April 11, 2011, and June 1, 2011. The chancellor rendered an opinion on September 2, 2011, and granted the irreconcilable differences divorce pursuant to the consent agreement. He granted physical custody of Hattie to Katye, set out the guidelines for visitation, ordered Kenton to pay $588 per month for child support, and divided property between the parties; alimony and attorneys' fees were not awarded to either party.
Katye filed a Motion to Reconsider, Motion for a New Trial, or to Alter or Amend Judgment, and Motion for Stay of Proceedings to Enforce a Judgment on the ground that Kenton had failed to disclose certain items in the required financial disclosures. Kenton did not respond or file a separate motion to reconsider. A hearing on Katye's motion was held on September 29, 2011. On October 12, 2011, the court entered an order specifically addressing the issues raised in Katye's motion to reconsider, then entered an Amended Opinion and Final Judgment to make several clarifications to the original opinion.
By this time, Kenton had fired his attorney. On October 13, 2011, Kenton filed, pro se, a Motion to Reconsider, Motion for a New Trial, to Alter or Amend Judgment, and Motion for Stay of Proceedings to Enforce a Judgment, alleging that: (1) he was represented poorly by prior counsel; (2) Katye and others who testified on her behalf had defrauded the court through their perjured testimony; and (3) opposing counsel had violated her oath as an attorney and as a municipal judge. He requested a new trial, new custody arrangements, and that costs and attorneys' fees be assigned to Katye.
At the end of October, Katye remarried her first husband, Michael Graves. Upon learning that Katye had remarried, Kenton wanted to withdraw his consent to the irreconcilable differences divorce. Between November 8 and 17, Kenton filed, pro se, seven subpoenas; a Motion for Contempt, Sanctions, and Relief; a Motion to Expunge Order of Withholding; a Motion to Expunge Consent Agreement to Irreconcilable Differences Divorce; and a ...

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