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McCharen v. Allred

Court of Appeals of Mississippi

August 1, 2017

LEESA CRIM MCCHAREN APPELLANT
v.
JUDSON MOORE ALLRED, III APPELLEE

          DATE OF JUDGMENT: 05/23/2016

         HINDS COUNTY CHANCERY COURT, FIRST JUDICIAL DISTRICT HON. WILLIAM H. SINGLETARYTRIAL JUDGE

          ATTORNEY FOR APPELLANT: PAUL E. ROGERS.

          ATTORNEY FOR APPELLEE: ROBERT S. MURPHREE.

          BEFORE GRIFFIS, P.J., FAIR, WILSON AND WESTBROOKS, JJ.

          FAIR, J.

         ¶1. Leesa McCharen brought a claim against her ex-husband, Judson Allred III, for child support arrearages, among other claims. After almost two years of inactivity in the case, the clerk filed a motion to dismiss for want of prosecution under Mississippi Rule of Civil Procedure 41(d). Leesa filed a motion to reinstate the case, and a hearing was held without Judson or his attorney present.[1] After Leesa's motion was granted by the court, Judson filed a motion to set aside the order reinstating the case. The court granted Judson's motion under Mississippi Rule of Civil Procedure 60(b), finding that there was no compelling reason for Leesa's delay in prosecution. Leesa appeals. Finding the judge acted well within his discretion, we affirm.

         FACTS

         ¶2. Judson and Leesa, both former attorneys, divorced in 1994. They had two daughters - one born in 1985 and the other born in 1988. The court granted Leesa physical and legal custody of the minor children, subject to Judson's visitation rights. Unfortunately, we are not privy to the details of the divorce decree, as it was not included in the record.

         ¶3. On March 5, 2012, Leesa filed a petition for citation of contempt and motion to modify former orders of the court. She claimed Judson owed more than the $46, 000 in arrearages, plus interest. Leesa also claimed that he was in willful contempt for failing to obtain medical insurance for the minor children and for failing to pay the insurance premiums in the amount of $51, 500.08. She made various other claims, allegedly stemming from Judson's failure to adhere to the original divorce decree. Leesa also included private school tuition and private college tuition. All in all, her claims totaled over $537, 000. At the time of Leesa's petition, their daughters were twenty-four and twenty-seven years old.

         ¶4. After a year of heated litigation, Leesa's claims dwindled down to almost $136, 000. Leesa's last filing was on August 12, 2013. On October 1, 2013, Judson filed a motion to dismiss based on Leesa's failure to add their daughters as necessary parties. The court held a hearing on the motion on October 9. No order resulting from the hearing appears in the record, but a later hearing transcript mentions that the chancellor ordered Leesa to join her daughters as parties. After that hearing, Leesa took no action whatsoever in the case. On June 1, 2015, the clerk moved that the case be dismissed under Rule 41(d). Leesa still did nothing. The court dismissed the case without prejudice on July 9, 2015. On August 7, 2015, Leesa filed a motion to reinstate the case. Leesa's attorney, Paul Rogers, asked Judson's attorney, Robert Murphree, if he would sign an agreed order to reinstate the case. Murphree said no. In December 2015, Rogers contacted Murphree about possible hearing dates, and he agreed to several dates. According to Murphree, that was the last he heard about the case.

         ¶5. The court held a hearing on February 25, 2016. Neither Murphree nor Judson appeared. Leesa claimed she was unaware of the clerk's motion to dismiss because the motion listed the parties as "Allred Judson Moore" and "Allred Leesa Crim" instead of "Judson Moore Allred" and "Leesa Crim Allred." The court ultimately granted Leesa's motion. Murphree said it was not until April 28, 2016, that he discovered there had been a hearing, when he received some discovery from Rogers. At Murphree's request, Rogers sent him a copy of the motion to reinstate the case.

         ¶6. Murphree filed a motion to set aside the order on May 2, 2016. A few days before the motion's hearing, Murphree submitted an affidavit detailing his version of the events between August 2015 and the February 2016 hearing. Murphree said he never received notice of the hearing. He also included copies of his notes from conversations with the court administrator, who, on February 11, reportedly told him the case was closed.

         ¶7. On May 17, 2016, the court held a hearing on what the chancellor called a Rule 60 motion. The court found no good cause shown for Leesa's delay and ...


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