IN THE MATTER OF THE DISSOLUTION OF THE MARRIAGE: VANESSA MARIE PEVEY (BLACK) APPELLANT
DALLAS KENT PEVEY JR. APPELLEE
OF JUDGMENT: 07/25/2017
COUNTY CHANCERY COURT HON. JOHN S. GRANT III TRIAL JUDGE
ATTORNEY FOR APPELLANT: STEPHEN L. BEACH III
ATTORNEY FOR APPELLEE: PAUL E. ROGERS
GRIFFIS, P.J., FAIR AND TINDELL, JJ.
A little more than a year after their divorce, Dallas Pevey
sued his ex-wife, Marie Black, to modify the custody of their
two children. The chancellor initially denied relief, but he
expressed reservations with the decision. When Dallas filed a
motion to reconsider, the chancery court gave him a hearing
and heard additional testimony. Ultimately, the chancery
court found that Marie had testified falsely at the initial
hearing, and custody of the children was awarded to Dallas.
Marie appeals and asserts numerous errors, both procedural
and substantive. We find that the chancery court acted within
its discretion, and so we affirm.
Dallas and Marie divorced in 2014. Physical custody of their
two young sons, born in 2008 and 2011, was awarded to Marie
by agreement. In 2015, Dallas filed a petition to modify
custody. Dallas alleged, among other things, that Marie was
using illegal drugs, acting erratically, moving around
frequently, and was not adequately caring for the children.
After a hearing, the chancery court called it a "close
case" and expressed concerns about the children's
circumstances, but it found Dallas had failed to show a
material change of circumstances adversely affecting the
children. Dallas then filed what he styled a "Motion to
Reconsider or, in the Alternative, to Amend Judgment pursuant
to Rules 59 and 60" of the Mississippi Rules of Civil
Procedure. Dallas contended he had newly discovered evidence
and Marie had made numerous false statements at the hearing
relating to her employment, living situation, and drug use.
The chancery court held a hearing on the motion where it
heard additional testimony and then rendered a new decision,
awarding custody to Dallas.
Motion to Reconsider
Marie contends that the chancery court erred in granting
Dallas's "motion to reconsider" because the
claimed newly discovered evidence was lacking and could have
been presented at the original hearing. Marie argues,
essentially, that the chancery court gave Dallas a "do
over" rather than holding him to the stricter standard
that Rule 59 requires. But she is wrong about that legal
It is true that, under the "new" Rules of Civil
Procedure, the motion for reconsideration technically no
longer exists. See Maness v. K & A Enters. of Miss.
LLC, No. 2017-CA-00173, 2018 WL 3791250, at *12
(¶68) (Miss. Aug. 9, 2018) (Maxwell, J., specially
concurring and joined by four other justices). But the motion
at issue here was properly made, and considered, under Rule
59. See id.
The chancery court's authority to modify the final
judgment is "limited" by Rule 59, and it is a
"higher" standard than under Rule 54(b), which
allows a trial court to set aside interlocutory decisions for
any reason it sees just. Id. at *13 (¶¶69,
71). Still, Rule 59 permits a chancery court substantial
discretion to reconsider its decisions-either on the motion
of a party, or sua sponte "for any reason for which it
might have granted a new trial on motion of a party."
See M.R.C.P. 59(d). When a case has been tried to
the court, Rule 59(a) expressly provides that a new trial may
be granted "for any of the reasons for which rehearings
have heretofore been granted in suits in equity in the courts
of Mississippi." "The ground rules [for a Rule 59
motion in chancery court] include those that preexisted the
Civil Rules regarding the grant or denial of trial court
rehearings." Mayoza v. Mayoza, 526 So.2d 547,
549-50 (Miss. 1988). In In re Enlargement of Corporate
Limits of Hattiesburg, 588 So.2d 814, 828 (Miss.1991),
the supreme court explained that "[i]n equity, the
chancellor has always had entire control of his orders and
decrees and authority to modify or vacate any of them on
motion of any party, or on his own, prior to final
judgment." While the chancellor's order may have
been styled a final judgment, it was rendered non-final by
Dallas's filing of the motion to reconsider. See
Wilson v. Mallett, 28 So.3d 669, 670 (¶3) (Miss.
Ct. App. 2009). "It is long-settled that when a final
judgment is reopened [under Rule 59, ] the judgment remains
subject to the control of the court until the motion is
disposed of and, until that time, does not become
final." E.E.O.C. v. United Ass'n of Journeymen
& Apprentices of the Plumbing & Pipefitting Indus. of
the U.S. & Canada, Local No. 120, 235 F.3d 244, 250
(6th Cir. 2000).
To grant the motion under Rule 59, the chancery court need
only be "convinced that a mistake of law or fact has
been made, or that injustice would attend allowing the
judgment to stand." See Maness, 2018 WL 379125,
at *13 (¶69) (Maxwell, J., specially concurring)
(quoting McNeese v. McNeese, 119 So.3d 264, 272
(¶20) (Miss. 2013)). This is an independent basis for
granting the motion, distinct from the court's authority
to order a new trial on the presentation of newly discovered
evidence. Id. "When hearing a motion under Rule
59(e), a trial court proceeds de novo, if not ab
initio. Recognizing that to err is human, Rule 59(e)
provides the trial court the proverbial chance to correct its
own error to the end that we may pretermit the occasion for a
less than divine appellate reaction." Bruce v.
Bruce, 587 So.2d 898, 904 (Miss. 1991). A Rule 59 motion
is the "functional equivalent" of a motion for
rehearing on appeal. King v. King, 556 So.2d 716,
722 (Miss. 1990).
Although Rule 59(a) refers to a "new trial," when a
case was tried to the court, the formality of a full retrial
is not required. Under Rule 59(a), the chancellor "may
open the judgment if one has been entered, take additional
testimony, amend findings of fact and conclusions of law or
make new findings and conclusions, and direct the entry of a
new judgment." Id.
Motions under Rule 59 should be distinguished from motions
under Rule 60(b), which seek "extraordinary relief"
from a judgment that is truly final. Rule 60(b) motions are
for "extraordinary and compelling circumstances"
and "should be denied when they are merely an attempt to
relitigate the case." S. Healthcare Servs. Inc. v.
Lloyd's of London, 110 So.3d 735, 742 (¶14)
(Miss. 2013). "[T]he trial court has considerably
broader discretionary ...