MEMORANDUM OPINION
PER CURIAM.
This appeal is from a judgment signed August 24, 2009. On July 26, 2010, appellant filed a motion to dismiss the appeal because the case has settled. See Tex. R. App. P. 42.1. The motion is granted.
Accordingly, the appeal is ordered dismissed.
t all relevant times in the present matter.
Interestingly, the dissent correctly states, "The privilege to amend a statute, not constitutionally infirm, does not rest with this Court" (quoting Mississippi Ethics Commission v. Grisham, 957 So.2d 997, 1003 (Miss. 2007)). However, that is exactly what the dissent proposes this Court do — amend the statute to mean "at any time during the life of both parties." It is the Legislature, and not this Court, that should make such a change to the statute's meaning. As the statute is written, there is no mention of the death of the parties — and we will not now "engraft" such a meaning onto the clear and unambiguous language of the statute.
The dissent asks the question, "does the Majority take the untenable position that because a child custody action is in rem, a court has authority to award the custody of a child to a dead person?" Of course not. The dissent clearly forgets that the polestar consideration in a child custody action is the best interest of the child — and awarding custody of a child to a deceased party clearly would not be in the child's best interest. Albright v. Albright, 437 So.2d 1003, 1005 (Miss. 1983). The dissent's example is absurd.
II. Statutory Requirements
¶ 28. Mississippi Code Section 93-5-31 makes it clear that a divorce may be revoked when the following requirements have been met: (1) at any time (with no reference to the death of one of the parties), (2) by the court which granted it, (3) under such regulations and restrictions as [the court which granted the divorce] may deem proper to impose, (4) upon the joint application of the parties, and (5) upon the production of satisfactory evidence of their reconciliation. See Miss. Code Ann. 93-5-31 (Rev. 2004).
¶ 29. Since the Legislature, in writing Section 93-5-31, did not limit the time frame in which a couple may pursue a revocation of divorce, Janet is within the applicable time frame to have her divorce revoked. Furthermore, the petition was filed in and granted by the Chancery Court of Pearl River County, the court which granted Charles and Janet's divorce. The chancery court imposed no regulations and restrictions on the revocation, and the application to revoke the divorce and testimony presented at the hearing clearly showed that the application for revocation of divorce was a joint application.
This factor distinguishes the matter at hand from Wells v. Roberson, 209 So.2d 919 (Miss. 1968), wherein this Court reversed a chancellor's revocation of divorce upon an ex parte application and hearing alter the death of one of the spouses.
¶ 30. Finally, the chancellor, in his discretion, must determine whether satisfactory evidence of reconciliation was produced at trial. As stated above, this Court has held that it will not disturb a chancellor's factual findings when supported by substantial evidence, unless the Court can say with reasonable certainty that the chancellor was manifestly wrong, clearly erroneous or applied an erroneous legal standard. Barton, 790 So.2d at 175. The chancellor was not manifestly wrong in finding that there was sufficient evidence of reconciliation and revoking the divorce of Charles and Janet Allen. The Court of Appeals also agreed that Janet had introduced sufficient evidence of her reconciliation with Charles. Carlisle, 40 So.3d 1265, 1270, ¶ 18.
The dissent argues that the surviving party, in this case Janet, was able to present unrefutable evidence because the deceased could not speak for himself at trial, nor could he change his mind prior to trial. However, our chancellors are vested with discretion to determine if the evidence of the couple's reconciliation is satisfactory — and this Court must review only whether substantial evidence supports the chancellor's decision.
¶ 31. The requirements of Mississippi Code Section 93-5-31 have been met in their entirety. The chancellor did not err in so finding and granting the application to revoke the divorce.
III. Sufficiency of Janet's Motion to Reconsider
¶ 32. Carlisle argues that Janet's motion for reconsideration in the trial court was untimely filed under Mississippi Rule of Civil Procedure 59 because it was filed eleven days after the entry of the judgment, rather than ten. However, Janet argues that her motion for reconsideration was not a motion for a new trial, as contemplated by Rule 59, because there had not been a trial prior to her motion for reconsideration being filed. Rather, Janet contends the motion is a motion for relief from judgment under Rule 60, which must have been made only within a reasonable time. Janet asserts that eleven days after the entry of the judgment is a reasonable time.
Rule 59. New Trials. Amendment of Judgments.
(a) Grounds. . . . On a motion for a new trial in an action without a jury, the court may open the judgment if one has been entered, take additional testimony, amend findings and conclusions, and direct the entry of a new judgment.
(b)
Time for Motion. A motion for a new trial shall be filed not later than ten days after the entry of judgment.
Miss. R. Civ. P. 59.
Rule 60. Relief from Judgment or Order.
(b) Mistakes; Inadvertence; Newly Discovered Evidence; Fraud, etc. On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons:
. . . (6) any other reason justifying relief from the judgment.
The motion shall be made within a reasonable time.
Miss. R. Civ. P. 60(b)(6).
¶ 33. This Court, in Cannon v. Cannon, 571 So.2d 976, 978 (Miss. 1990), said that it is "reasonable to consider [a party's motion for reconsideration] as one under Rule 60(b)" when the motion does not state that it was brought under Rule 59 and was filed more than ten days after the entry of final judgment in the case. We further stated, "How a court treats a motion for reconsideration turns on the time at which the motion is served. If the motion is served within ten days of the rendition of judgment, the motion falls under Rule 59(e). If it is after that time, it falls under Rule 60(b)." Id. at 978 n. 2. Here, the motion did not specify that it was brought pursuant to Rule 59, and it was filed more than ten days after the entry of the order to quash. Therefore, it should be considered a motion for relief under Rule 60. We have said that a trial court has "considerable discretion, though not unfettered discretion" in reviewing claims under Rule 60(b). Id. (quoting H W Transfer Cartage Service, Inc. v. Griffin, 511 So.2d 895, 898-99 (Miss. 1987)). In the present matter, the chancellor did not abuse his discretion under Rule 60(b)(6).
¶ 34. Carlisle further asserts that Janet's motion did not set forth significant facts regarding reconciliation as required by the trial court's order quashing the application to revoke. Janet's motion for reconsideration reads, "[Janet] would further show that she is ready at the Court's convenience to prove to the Court through testimony and other evidence that there was a complete reconciliation." The chancellor granted a hearing on the matter in order for her to do so. Carlisle cites no authority for the proposition that Janet's motion did not sufficiently address the evidence she would present regarding the reconciliation. Therefore, this issue is without merit.
IV. Revivor
¶ 35. Finally, Carlisle complains that Janet did not comply with Mississippi Code Section 15-1-69, which reads:
If in any action, duly commenced within the time allowed, the writ shall be abated, or the action otherwise avoided or defeated, by the death of any party thereto . . . the plaintiff may commence a new action for the same cause, at any time within one year after the abatement or other determination of the original suit . . . and his executor or administrator may, in case of the plaintiffs death, commence such new action, within the said one year.
Miss. Code Ann. § 15-1-69 (Rev. 2003). However, as discussed in Section I of this opinion, the action was not abated upon the death of Charles. Therefore, Section 15-1-69 is inapplicable and this issue is without merit.
CONCLUSION
¶ 36. Because Janet met every requirement in Mississippi Code Section 93-5-31 to have a divorce revoked, the Court of Appeals erred in reversing the chancery court's revocation of the Aliens' divorce. The chancery court maintained proper jurisdiction, the motion to reconsider was not untimely under Rule 60, and no revivor was necessary under the facts of this case. Therefore, the judgment of the Court of Appeals is reversed and rendered. The judgment of the Chancery Court of Pearl River County is reinstated and affirmed.
¶ 37. THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED AND RENDERED. THE JUDGMENT OF THE CHANCERY COURT OF PEARL RIVER COUNTY IS REINSTATED AND AFFIRMED.
CARLSON, P.J., DICKINSON, KITCHENS AND CHANDLER, JJ., CONCUR. RANDOLPH, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY WALLER, C.J., AND LAMAR, J. LAMAR, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY WALLER, C.J., GRAVES, P.J., AND RANDOLPH, J.
RANDOLPH, Justice, dissenting:
¶ 38. Justice Lamar has astutely honed in upon the controlling, nearly two-century-old holding of this Court in Gerault v. Anderson, 1 Miss. 30, 1818 WL 456 (June Term 1818), that "on the death of [a] party his interest ceases, and the jurisdiction of the court ceases also." Id. at *2. See also Owen v. Abraham, 233 Miss. 558, 561, 102 So.2d 372, 373 (1958) (quoting Griffith's Mississippi Chancery Practice, Section 591) (the "impossibility of litigation "carried on by or against any deceased person[,]" is "apparent . . . upon its mere mention"). Application of that principle in a divorce-revocation context aligns with the logical and well-reasoned decisions by the courts of our sister states. See Dunevant v. Dunevant, 142 N.C.App. 169, 175, 542 S.E.2d 242, 246 (2001) ("the trial court may not set aside a valid divorce decree and thereby revive the marital status of a party who is deceased."); Hill v. Lyons, 550 So.2d 1004, 1006 (Ala.Civ.App. 1989) (following the death of one party, "upon timely motion the trial court had jurisdiction to amend, alter, or modify the [divorce] decree[,]" insofar as it "affected property rights of the parties.. . . . The trial court did not, however, have the jurisdiction to change the adjudged marital status of the parties.") (emphasis added); Cox v. Dodd, 242 Ala. 37, 41, 4 So.2d 736, 739 (1941) (quoting 17 Am.Jur. § 462, p. 378) (when a divorce judgment does not affect property rights, "[proceedings to vacate it will not lie after the death of one of the parties. The only object which could be attained would be sentimental in its nature, for the death of the parties effectually severs the marriage relation and the practical result of the judgment or decree would not be affected. On the other hand, where the judgment or decree affects property rights, the death of one party or both parties does not affect the right of the unsuccessful party or his or her representative to institute vacation proceedings. This is permitted, not for the purpose of continuing the controversy touching the right to a divorce itself, but for the ascertainment of whether the property has been rightly diverted from its appropriate channel of devolution.") (Emphasis added.)
But according to Janet, addressing substitution under Mississippi Rule of Civil Procedure 25:
[t]he case at bar is not an adversarial action in its genesis; it is not an action to recover money or to enforce a contract, a debt, land rights, etc. In such adversarial actions, a substituted party can potentially recover or provide the relief sought in the suit. However,
in the case at bar, a substituted party cannot provide the relief sought by [Janet], i.e. marriage. She cannot be married to an estate and certainly does not want to be married to another person substituted in place of [Charles].
(Emphasis added). Thus, even Janet acknowledges that only one of the two necessary parties remains alive, and the deceased party cannot be substituted.
¶ 39. In spite of Gerault and the above persuasive authority, a majority of our Justices opt to judicially engraft into the "at any time" language of Mississippi Code Section 93-5-31 the permissibility of a divorce revocation "even after the death of one of the parties." (Maj. Op. at ¶¶ 27-28) (citing Miss. Code Ann. § 93-5-31 (Rev. 2004)). "The privilege to amend a statute, not constitutionally infirm, does not rest with this Court." Miss. Ethics Comm'n v. Grisham, 957 So.2d 997, 1003 (Miss. 2007). As the statute makes no reference regarding the death of a coapplicant before decree or judgment, this Court has no authority to engraft such upon it. If the Legislature so desires, a statutory amendment to that effect (assuming the constitutionality thereof) is permissible. But that amendment does not lie within the province of this Court. For now, "on the death of [a] party his interest ceases, and the jurisdiction of the court ceases also." Gerault, 1818 WL 456 at *2. Ita lex scripta est.
"So the law is written." Black's Law Dictionary 966 (4th ed. 1968).
¶ 40. The lack of prudence in the Majority's approach becomes apparent when considering statutes pertaining to divorce and marriage. Mississippi Code Section 93-5-2 provides, in pertinent part, that:
(1) Divorce from the bonds of matrimony may be granted on the ground of irreconcilable differences,
but only upon the joint complaint of the husband and wife or a complaint where the defendant has been personally served with process or where the defendant has entered an appearance by written waiver of process.
(4)
Complaints for divorce on the ground of irreconcilable differences must have been on file for sixty (60) days before being heard. Except as otherwise provided in subsection (3) of this section, a joint complaint of husband and wife or a complaint where the defendant has been personally served with process or where the defendant has entered an appearance by written waiver of process, for divorce solely on the ground of irreconcilable differences, shall be
taken as proved and a final judgment entered thereon, as in other cases and without proof or testimony in termtime or vacation . . . .
Miss. Code Ann. § 93-5-2 (Rev. 2004) (emphasis added). This statute likewise makes no reference to the death of one of the parties following the filing of a joint complaint (evidencing intent to divorce), but prior to the hearing and/or final judgment. Yet this Court has held that "[t]he authorities are clear that the death of complainant in the divorce action prior to the execution and entry of the final decree by the lower court ended the marriage of the parties and canceled fully the bill of complaint for divorce and incidental property relief." Barton v. Barton, 790 So.2d 169, 173 (Miss. 2001) (quoting Pittman v. Pittman, 375 So.2d 415, 416 (Miss. 1979)) (emphasis added). It is no different on appeal. See Howard, v. Howard, 243 Miss. 68, 71, 137 So.2d 191, 192 (1962) ("the death of either party pending an appeal from a judgment in a divorce action abates the action insofar as it affects the mere marital status. . . ."). No authority exists for the proposition that this statute and the relief sought should be different.
¶ 41. But even if one would argue that divorce is distinguishable because death effectively accomplishes the chief purpose for such an action by dissolving the marriage status, consider the effect of the death of one of the parties while attempting to establish marriage status. A marriage is invalid:
unless the
contracting parties shall have obtained a marriage license as otherwise required by law,
and unless also the
marriage, after such license shall have been duly issued therefor, shall have been performed, by or before any person, religious society, institution, or organization authorized by sections 93-1-17 and 93-1-19 to solemnize marriages. Failure in any case to comply with
both prerequisites aforesaid, which shall be construed as
mandatory and not merely directory, shall render the purported marriage absolutely void.
Miss. Code Ann. § 93-1-15(1) (Rev. 2004) (emphasis added). This statute makes no reference to the death of one of the parties following the lawful acquisition of a marriage license (evidencing intent to marry), but prior to solemnization of the marriage. Applying the Majority's reasoning, the absurd result of a marriage being solemnized despite the death of one prospective spouse extends beyond the realm of legal permissibility.
¶ 42. Gerault is sound because of its bright-line holding, i.e., jurisdiction over an individual ceases at death. See Gerault, 1818 WL 456 at *2. The Majority argues that Gerault is inapplicable because it involved an in personam action, while the present matter "is one touching upon the marital status of the parties and is an in rem action. . . ." (Maj. Op. at ¶ 27) (citing Gerault, 1818 WL 456 at *2). Assuming arguendo that the adjudication of marital status and custody are in rem actions for which "one spouse may obtain a divorce without personal service of process on the other[,]" (Maj. Op. at ¶ 25), the pretension that a distinction should be accorded in rem versus in personam disappears when considering the effect of a necessary party's death in divorce and child-custody actions. This Court has clearly spoken to the divorce context. See ¶ 40 supra (citing Barton, 790 So.2d at 173 (quoting Pittman, 375 So.2d at 416); Howard, 137 So.2d at 192). Similarly, does the Majority take the untenable position that because a child-custody action is in rem, a court has authority to award the custody of a child to a dead person? Surely not. Consistent with Gerault, when a necessary party to a divorce, divorce revocation, or child-custody action dies, the trial court's authority to alter either the marriage status or child custody ceases. The application of Gerault in such circumstances is eminently correct, and the in rem/in personam distinction is of no import.
However, our irreconcilable-differences divorce statute requires "the joint complaint of the husband and wife or a complaint where the defendant has been personally served with process. . . . " See Miss. Code Ann. § 93-5-2(1)(Rev. 2004).
¶ 43. The Majority opinion casts aside Gerault's compelling logic and longstanding vintage, and instead substitutes what amounts to a precarious "intent" standard. In cases involving the death of a necessary party, applying this same "intent" standard to its logical extreme would sanction divorces prior to a final decree because the parties' "intent" was expressed in the joint complaint, and marriages prior to solemnization because of the parties' "intent" expressed in acquisition of a marriage license Under the Majority's approach, should we not begin accepting unsigned wills because the decedent has shown his "intent" to direct the disposition of property? Applying the Majority's interpretation of Section 93-5-31, if both persons execute a joint application and one dies, albeit before it is filed, sufficient "intent" is shown for the revocation of a divorce as long as it is confirmed by the surviving applicant, who effectively gets to present irrefutable evidence because dead persons can neither speak nor change their mind prior to trial. Such an approach is legally erroneous and practically untenable, a legal folly.
There is no mention of a filing requirement in Section 93-5-31. See Miss. Code Ann. § 935-31 (Rev. 2004).
In the event that the court also finds "satisfactory evidence of their reconciliation." Miss. Code Ann. § 93-5-31 (Rev. 2004).
Carlisle's testimony that he previously had prepared four or five revocation applications for Charles, each of which Charles disposed of, clearly evinces that any "intent" inferred from the application is tenuous.
¶ 44. This decision can have far-reaching, ill consequences on interrelated areas of law. For example, the law of descent and distribution provides that "[a]ll personal property situated in this state shall descend and be distributed according to the laws of this state regulating the descent and distribution of such property. . . . The widow of such deceased person shall take her share in the personal estate according to the laws of this state." Miss. Code Ann. § 91-1-1 (Rev. 2004). In the absence of a will, if a divorce may be revoked despite the prejudgment death of one of the parties, then the "widow of such deceased person," otherwise unrecognized, gains significant property rights. See Miss. Code Ann. §§ 91-1-7 ("[i]f a husband die intestate and do not leave children or descendants of children, his widow shall be entitled to his entire estate, real and personal, in fee simple, after payment of his debts; but where the deceased husband shall leave a child or children by that or a former marriage, or descendants of such child or children, his widow shall have a child's part of his estate, in either case in fee simple."); 91-1-11 ("[w]hen any person shall die possessed of goods and chattels or personal estate not bequeathed, the same shall descend to and be distributed among his or her heirs in the same manner that real estate not devised descends.") (Rev. 2004). Under the Majority's approach, these substantial property rights are acquired nunc pro tunc based upon an unconsummated "intent" to revoke the divorce, despite the irrefutable fact that at the time of death, the parties were divorced.
Similarly, the Majority's approach would allow the surviving party to claim Social Security benefits as a widow, and partake of other tax advantages reserved for the spouse of a deceased, despite the undisputed fact that the parties were divorced at the time of death.
¶ 45. Upon his death, Charles's "time" expired. The trial court was correct in initially quashing the joint application to revoke the divorce based upon Charles's death, but erred in subsequently "entertaining] a motion to reconsider this finding should [Janet] timely file such a request and show sufficient facts evidencing a satisfactory reconciliation of the parties." For all of the above reasons, I join Justice Lamar's dissent, which declares that "a trial court is without authority to alter the marital status of a party who is deceased." (Dis. Op. at ¶ 47). I likewise dissent.
WALLER, C.J., and LAMAR, J., join this opinion.
LAMAR, Justice, dissenting:
¶ 46. The issue before the Court is whether the death of one of the parties to a joint application to revoke divorce deprives the trial court of jurisdiction to proceed on the joint application after the party's death. The question of jurisdiction is basic and fundamental, and if there is an absence of jurisdiction — over either the person or the subject matter — the court is without power to act. At common law, the death of either party generally put an end to an action. In recognition of this principle, this Court long ago held that "on the death of [a] party his interest ceases, and the jurisdiction of the court ceases also." Gerault v. Anderson, 1 Miss. 30, 1818 WL 456, *2 (June Term 1818). Griffith's Mississippi Chancery Practice provides that: "A valid judgment cannot be rendered in favor of two persons, one of whom at the time is dead. Such judgment is void." Bridges Shelson, Mississippi Chancery Practice § 620 (2000 ed.). "A proceeding to set aside a divorce decree, that is valid on its face and that deals exclusively with the parties' marital status, is abated upon a former spouse's death." 24 Am.Jur.2d Divorce and Separation § 430 (2008).
¶ 47. Our statutes provide a process whereby a judgment of divorce can be revoked. Section 93-5-31 of the Mississippi Code states:
The judgment of divorce from the bonds of matrimony may be revoked at any time by the court which granted it, under such regulations and restrictions as it may deem proper to impose, upon the joint application of the parties, and upon the production of satisfactory evidence of their reconciliation.
Miss. Code Ann. § 93-5-31 (Rev. 2004). The majority finds that, because the conditions of the statute were met, Janet is entitled to proceed on the application to revoke divorce, unaffected by Charles's death. I disagree. This action dealt exclusively with the parties' marital status, an action that was strictly personal to each of them, one which could not be assigned, nor could another party be substituted in their stead. Thus, the action must necessarily abate upon either party's death. I find nothing in the language of the statute that compels me to ignore the well-founded rule that "on the death of [a] party his interest ceases, and the jurisdiction of the court ceases also." Gerault, 1818 WL 456, at *2. I would find that a trial court is without authority to alter the marital status of a party who is deceased. I therefore dissent.
See e.g., Larocca v. Larocca, 597 So.2d 1000, 1004 (La. 1992) (Divorce is a personal action that abates upon the death of one of the parties); In Re Estate of Williams, 2003 WL 1961805, at *6 (Tenn.Ct.App., Apr. 28, 2003) (same); In Re Marriage of Himes, 136 Wash.2d 707, 965 P.2d 1087, 1093 (1998) (same).
WALLER, C.J., GRAVES, P.J., and RANDOLPH, J., join this opinion.