MARY G. MONTGOMERY APPELLANT
GLEN W. MONTGOMERY APPELLEE
OF JUDGMENT: 04/12/2017
JACKSON COUNTY CHANCERY COURT TRIAL JUDGE: HON. D. NEIL
ATTORNEY FOR APPELLANT: MARY G. MONTGOMERY (PRO SE)
ATTORNEY FOR APPELLEE: MARK V. KNIGHTEN
J. WILSON, P.J., GREENLEE AND McCARTY, JJ.
We dismiss the appeal in this divorce proceeding for lack of
a final, appealable judgment.
In July 2016, Glen Montgomery filed a complaint for divorce
from his wife, Mary Montgomery. Glen alleged that he was
entitled to a divorce on the grounds of habitual cruel and
inhuman treatment and desertion. Glen's complaint
requested an equitable division of the marital estate and
other relief. Mary filed a pro se, handwritten answer, and
the case proceeded to trial on April 12, 2017.
The trial was bifurcated, and the court first took evidence
on grounds for divorce. After hearing testimony from Glen and
a longtime friend of the couple, the judge ruled from the
bench that Glen was entitled to a divorce on the ground of
habitual cruel and inhuman treatment. The court then began
taking evidence on the equitable division of the marital
estate,  but that phase of the trial did not
conclude on the first day. The judge told the parties that
the trial would resume on August 23, 2017.
At the end of the first day of trial, the court entered a
"Final Judgment on Divorce." The judgment stated
that Glen had proven habitual cruel and inhuman treatment and
was granted a divorce on that ground. The judgment further
stated that "[m]atters of equitable division [would] be
addressed in a later judgment." Finally, the judgment
stated: "This is a final judgment on the grounds for
divorce only. The [c]ourt hereby reserves jurisdiction for
issues of equitable division, alimony, and all other
financial matters related to the marriage." On May 3,
2017, Mary filed a pro se "Motion to Appeal
Judgment," which was construed as a notice of appeal.
A fuller recitation of the facts of the case is unnecessary
because we lack jurisdiction. See Walters v.
Walters, 956 So.2d 1050, 1051 (¶2) (Miss. Ct. App.
2007). "Though the issue has not been raised by the
parties, this Court is required to note its own lack of
jurisdiction." Id. at 1053 (¶8).
"Generally, only final judgments are appealable."
Id. (quoting M.W.F. v. D.D.F., 926 So.2d
897, 899 (¶4) (Miss. 2006)). "A final, appealable,
judgment is one that 'adjudicates the merits of the
controversy[, ] . . . settles all issues as to all the
parties[, ]' and requires no further action by the lower
court." Id. (brackets omitted) (quoting
Banks v. City Finance Co., 825 So.2d 642, 645
(¶9) (Miss. 2002)).
"A judgment granting a fault-based divorce is a
non-final order if issues attendant to the fault-based
divorce, such as property division, remain before the lower
court." Id. at (¶9). That is precisely the
situation here. The chancery court's judgment granting a
divorce expressly stated that the court reserved jurisdiction
to divide the marital estate and resolve all other financial
matters related to the divorce. Therefore, the judgment
granting a divorce "was not a final judgment from which
an appeal could be taken." Id.; accord,
e.g., M.W.F. v. D.D.F., 926 So.2d 897, 898-900
(¶¶3-6) (Miss. 2006) (holding that a "judgment
of divorce" granting a divorce was not final because it
did not resolve issues of property division, alimony, child
custody, and child support); Ory v. Ory, 936 So.2d
405, 408 (¶3) & n.1 (Miss. Ct. App. 2006)
(explaining that a "judgment of divorce" was not
final because the chancery court reserved the division of the
marital assets for a later date). The judgment granting a
divorce was not final even though it was labeled as a
"final" judgment. Walters, 956 So.2d at
1052-54 (¶¶5-7, 9, 11-12) (holding that a
"Final Judgment of Divorce" was not a
final, appealable judgment because the equitable division of
the marital estate remained pending before the chancery
court). Whether a judgment is "final" is a matter
of substance, not form. See M.R.C.P. 54(b).
Rule 54(b) of the Mississippi Rules of Civil Procedure
provides one exception to the rule that only final judgments
are appealable. See Walters, 956 So.2d at 1053
(¶10). Under Rule 54(b), "the [trial] court may
direct the entry of a final judgment as to one or more but
fewer than all of the claims or parties only upon an
expressed determination that there is no just reason for
delay and upon an expressed direction for the entry of the
judgment." M.R.C.P. 54(b). However, the trial
court's "expressed determination that there is no
just reason for delay" must be stated "in a
definite, unmistakable manner." Id., advisory
committee notes. In other words, the trial court must
expressly "certify" that the interlocutory ruling
should be deemed final and "released for appeal."
Jennings v. McCelleis, 987 So.2d 1041, 1043
(¶6) (Miss. Ct. App. 2008) (quoting Indiana
Lumbermen's Mut. Ins. Co. v. Curtis Mathes Mfg.
Co., 456 So.2d 750, 753 (Miss. 1984)).
In this case, the trial judge did not make such an express
certification. Indeed, the judge did not make any statement
to the effect that there was "no just reason for
delay" of an appeal. M.R.C.P. 54(b). To the contrary,
the judgment granting Glen a divorce expressly stated that
the equitable division of the marital estate would be
"addressed . . . in a later judgment." The judgment
further stated that the court reserved jurisdiction to
address that issue and all other financial matters. Moreover,
the court even gave the parties a date for the second day of
trial. Therefore, Rule 54(b)'s exception to the final
judgment rule does not apply. See Walters, 956 So.2d
at 1052-54 (¶¶5-14) (holding that Rule 54(b) did
not apply in the absence of an expressed determination by the
trial court ...