Rosemary Finch v. Stewart Finch

IN THE SUPREME COURT OF MISSISSIPPI

NO. 2011-CT-00306-SCT

ROSEMARY FINCH

v.

STEWART FINCH

ON WRIT OF CERTIORARI

DATE OF JUDGMENT: 02/16/2011
TRIAL JUDGE: HON. DEBORAH J. GAMBRELL
COURT FROM WHICH APPEALED: LAMAR COUNTY CHANCERY COURT
ATTORNEYS FOR APPELLANT: JAMES L. ROBERTSON, JR.
ALFRED J. LECHNER, JR.
ATTORNEY FOR APPELLEE: S. CHRISTOPHER FARRIS
NATURE OF THE CASE: CIVIL - DOMESTIC RELATIONS
DISPOSITION: AFFIRMED IN PART; REVERSED IN PART
AND REMANDED - 01/16/2014
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

EN BANC.

PIERCE, JUSTICE, FOR THE COURT:

¶1. Rosemary Finch filed a complaint for separate maintenance, and her husband Stewart

Finch responded with a counterclaim for divorce. In the course of their divorce proceedings,

Rosemary and Stewart were required by Mississippi Chancery Court Rule 8.05 to provide

a comprehensive financial statement listing their individual incomes and expenses and their

marital and nonmarital assets and liabilities. Miss. Unif. Ch. Ct. R. 8.05.

¶2. The divorce trial was conducted before the Honorable James H.C. Thomas. At trial,

it was established that Rosemary had been primarily responsible for handling the parties’
financial obligations and paying the bills. Stewart worked away from home as a tugboat

captain in New York while Rosemary worked as a stay-at-home mom. In the judgment of

divorce, the chancellor awarded Rosemary periodic alimony in the amount of $4,000 for

thirty-six months, followed by $3,700 for forty-eight months, and finally $3,400 to be paid

indefinitely. Stewart also was required to pay $7,000 for Rosemary’s attorneys’ fees.

¶3. Four months later, Rosemary filed a contempt petition claiming that Stewart had

failed to pay alimony and child support, failed to obtain life insurance, failed to make

COBRA payments, and failed to disclose his present address and telephone number. Stewart

filed an answer and counter-petition for contempt, alleging that Rosemary had failed to pay

the balance on a vehicle and failed to provide him with personal property from their marital

home pursuant to the divorce judgment. Stewart also asserted that Rosemary must submit

to a medical examination before he could obtain the life insurance. Later, Stewart filed an

amended counter-petition for contempt and modification alleging that Rosemary had

fraudulently represented to the chancery court that she had continued to pay all of the marital

debts, just as she had through the marriage, but in reality, she had failed to make payments

on an American Express credit card that was in his name. Based on this, Stewart asked the

chancellor for a reduction in alimony from $4,000 to $2,500 to offset the increased costs

resulting from her failure to pay. He additionally requested that the court declare his minor

child emancipated because the child had refused to communicate with Stewart and had

legally removed “Stewart” as his middle name.

¶4. In August 2010, a hearing was conducted before a specially appointed second

chancellor, the Honorable Billy Bridges, in which Stewart asserted that Rosemary had

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incurred debts in his name of which he was unaware, and that those debts were not listed on

Rosemary’s 8.05 financial statement. Testimony of the parties also revealed that Rosemary

had been late in making payments on her vehicle; thus Stewart had paid the remainder of the

debt on the car to keep his credit from becoming further damaged and to convey title to

Rosemary pursuant to the divorce judgment. Stewart explained his attempts to communicate

with his son and his son’s refusal to have a relationship with him. The child also provided

testimony indicating his desire not to have a relationship with Stewart. At the close of the

hearing, the chancellor requested both parties submit findings of facts and conclusions of law

to further support their claims. However, a judgment was not entered by the chancellor prior

to the expiration of his appointment.

¶5. Oral argument was held before the newly appointed third chancellor, the Honorable

Deborah J. Gambrell, in January 2011, on a motion for enforcement of the prior judgment

related to the August hearing and on a motion to strike. Based on the oral arguments

presented, and on the record from the August hearing, the chancellor issued an opinion and

judgment. The chancellor found that there had been a material change in circumstances since

the original divorce decree had been entered. First, Stewart was ordered to convey title to

the Camaro to his daughter, but the title could not be transferred until the debt was fully

satisfied by his daughter. Stewart’s daughter ceased making payments on the vehicle,

therefore, Stewart paid the $9,211.95 debt in order to protect his credit and to convey title.

Second, the unpaid American Express debt and the undisclosed debts resulted in Stewart

borrowing $38,000 to satisfy those debts. Third, Stewart suffered a reduction in income from

$8,190.47 per month to $5,691.75 per month. Fourth, Rosemary now receives $728.00 per

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month in social security payments. Fifth, Sean Finch displayed animosity toward his father,

graduated from high school, was able to work a part-time job, and enrolled at a local junior

college.

¶6. In the judgment, the chancellor sua sponte raised a Rule 60(b) motion finding

Rosemary had committed a fraud upon the court. Miss. R. Civ. P. 60(b). Thus, no time limit

existed to inhibit the court from modifying the divorce judgment.

¶7. The chancellor retroactively reduced alimony from $4,000 to $2,000 per month based

on Rosemary’s failure adequately to disclose social security payments, additional debts, and

a joint account with her mother, and Stewart having to pay for both Rosemary’s and his

daughter’s vehicles in order to transfer title pursuant to the divorce judgment. In addition,

Stewart was paying more than $800 per month to satisfy the additional marital debts. The

chancellor retroactively reduced child support from $1,300 to $900 per month and further

relieved Stewart of the obligation to pay any of his son’s educational expenses.

¶8. Rosemary appealed this judgment, and the Court of Appeals affirmed the chancery

court. Rosemary then petitioned for writ of certiorari, which we granted, seeking review of

the following issues:

I. Whether Rosemary was given proper notice that she committed
fraud on the court.

II. Whether the third chancery judge used the clear and convincing
evidence standard when finding Rosemary committed fraud.

III. Whether an appellate court should give deference to credibility
findings made by a third chancery judge who neither saw nor
heard the witnesses testify.

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 IV. Whether the third chancery judge’s findings were unsupported by
the evidence, contrary to law, and deprived Rosemary of a fair
trial.

¶9. Finding this case should be reversed and remanded for further factual findings

regarding Stewart’s income and for a recalculation of alimony and child support under issue

IV, it is not necessary for us to discuss Issue III.

STANDARD OF REVIEW

¶10. Factual findings made by the chancery court will not be disturbed if they are

“supported by substantial evidence unless [we] can say with reasonable certainty that the

chancellor abused his discretion, was manifestly wrong, clearly erroneous or applied an

erroneous legal standard.” Biglane v. Under the Hill Corp., 949 So. 2d 9, 14 (Miss. 2007)

(quoting Cummings v. Benderman, 681 So. 2d 97, 100 (Miss. 1996)). It is well settled that

“[c]hancellors are afforded wide latitude in fashioning equitable remedies in domestic

relations matters. . . .” Henderson v. Henderson, 757 So. 2d 285, 289 (Miss. 2000) (citing

Hammett v. Woods, 602 So. 2d 825, 827 (Miss. 1992)).

¶11. Additionally, when this Court reviews motions for relief pursuant to Rule 60(b),

reversal is warranted only when an abuse of discretion is found, because these motions are

to be addressed at the sound discretion of the trial court. Stringfellow v. Stringfellow, 451

So. 2d 219, 221 (Miss. 1984) (citing Clarke v. Burkle, 570 F. 2d 824, 830 (8th Cir. 1978)).

ANALYSIS

¶12. Mississippi Rule of Civil Procedure 60(b) states in part: “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 . . . .” Miss. R. Civ. P. 60(b). The rule further provides that

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“This rule does not limit the power of a court to entertain an independent action to relieve

a party from a judgment, order, or proceeding, or to set aside a judgment for fraud upon the

court.” Id.

¶13. This Court has not spoken to whether a judge may sua sponte raise a Rule 60(b)

motion, but the United States Court of Appeals for the Fifth Circuit has held that “the motion

requirement of Rule 60(b) can be satisfied on the district court’s own motion.” Baum v.

Blue Moon Ventures, LLC, 513 F.3d 181, 190 (5th Cir. 2008); see McDowell v. Celebrezze,

310 F.2d 43, 44 (5th Cir. 1962) (“The court could initiate [a Rule 60(b)(1) motion] on its own

motion”); In re Jack Kline Co., 440 B.R.712, 729 (S.D. Tex. 2010) (“The Fifth Circuit has

consistently held that the motion requirements of Rule 60(b) may be satisfied by the Court’s

own motion”). The Fifth Circuit also has held that the court must provide to the parties

adequate notice and an opportunity for a hearing on the matter. Baum, 513 F.3d at 189. We

agree with the Fifth Circuit.

I. Whether Rosemary was given proper notice that she committed
fraud on the court.

¶14. Rosemary argues that she was blind sided by the judgment because she did not receive

fair notice that the chancellor would consider issues not listed in Stewart’s counter-petitions,

and as a result, she was unable to take discovery to defend against the allegations. However,

the record reflects that, even though the alleged undisclosed debts were not brought forth in

the initial petitions, they were brought forth during the August 2010 hearing, in Stewart’s

subsequent proposed findings of facts and conclusions of law, and during the January 2011

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oral arguments. In addition, Rosemary’s counsel made arguments during the January hearing

as to why Rosemary’s actions were not fraud on the court.

¶15. Stewart did, in fact, raise the additional debts during the August 2010 hearing by

entering as exhibits a credit report and statements from the creditors showing the amounts

owed. Stewart testified that he was completely unaware of the debts at the time the parties

completed their 8.05 financial statements.

¶16. Further, Rosemary’s claim that she was unaware that the newly appointed third

chancellor would consider allegations outside what was stated in the petitions is without

merit. The chancellor made the following statement after hearing the parties’ oral arguments:

You all have given me so much information prior to this oral argument this
morning that I am astutely familiar with everything you are saying. I have
read the entire file; I have gone to sleep reading transcripts at night, every iota
of everything. I feel confident that I can go ahead and proceed, but I accorded
you an oral argument. I want you all to be able to argue your motion, your
proposed findings of fact. I am going to allow you all of the time you need,
but I have read everything to the point that I think I know everybody’s position
as it relates to the August hearing, as well as the Motion to Enforce, but if you
feel that I am not fully up to speed with everything, you can go as long as you
want.

The chancellor went on to explain that, in order to understand the situation before her, she

had read everything thoroughly because of the cumbersome task of trailing previous orders

and transcripts, which were issued under two different chancellors who previously had

presided over the matter. The chancellor’s statements made clear that she considered the

parties’ positions related to the arguments and testimony presented during the August

hearing, which included the allegation of fraud. Further, the dissent argues that the hearing

before the chancellor made no mention of the allegations of fraud upon the court, however,

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Rosemary’s attorney made arguments as to why Rosemary’s failed disclosures should not

equate to a fraud upon the court. Rosemary’s attorney’s arguments, combined with the

chancellor’s statements, as referenced above, make clear that all allegations from the August

2010 hearing were being considered and all parties were aware of this fact.

¶17. Rosemary also argues that Stewart became aware of the additional debts months

before he filed his amended counter-petition for contempt; thus he was responsible for raising

that issue in his petition. The facts support that Stewart did raise in his petition the issue of

fraudulent misrepresentation to the court regarding the payment of one credit card debt, and

that Rosemary was given ample time to prepare for her defense and did present a defense to

those claims in her findings of facts and conclusions of law and during oral argument five

months after the August hearing. Accordingly, we find this issue to be without merit, and

the chancellor did not abuse her discretion in addressing the fraud sua sponte pursuant to

Rule 60(b). Miss. R. Civ. P. 60(b).

II. Whether the third chancery judge used the clear and convincing
evidence standard when finding Rosemary committed fraud.

¶18. In Trim v. Trim, this Court held that any party found to have deliberately filed a

“substantially false” financial statement pursuant to Rule 8.05 will have committed a fraud

on the court; thus no time constraints will limit the court’s ability to remedy such fraud.

Trim v. Trim, 33 So. 3d 471, 473 (Miss. 2010). Here, the chancellor found that Rosemary

dealt with all of the finances and “. . . was acutely aware of the lingering undisclosed

indebtedness that would plague Defendant due to her failure to disclose the same. . . .” The

chancellor relied upon Trim v. Trim to conclude that Rosemary had committed a fraud upon

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the court, therefore the divorce judgment was modifiable in order to correct the fraud. Trim,

33 So. 3d 471 (Miss. 2010).

¶19. Rosemary asserted that the chancellor failed to apply the clear and convincing

standard when determining that the facts supported a finding of fraud on the court. Further,

Rosemary contended that this Court’s ruling in Trim does not mean that every incorrect Rule

8.05 financial statement filed equated to a fraud upon the court, and regardless, no credible

evidence existed to support that Rosemary intended to commit fraud.

¶20. We find no merit to Rosemary’s claim that the chancellor failed to apply the clear and

convincing standard. Rosemary provided that the chancellor never specifically stated the

standard of proof, which is correct, but the judgment clearly reflects the chancellor’s

application of the clear and convincing standard. Further, the record before us supports that

evidence existed to support the chancellor’s ruling. Biglane, 949 So. 2d at 14 (citing

Cummings, 681 So. 2d at 100). The chancellor determined that it was clear that Rosemary

knew of the existence of the additional debts, her access to additional bank accounts, and her

entitlement to social security benefits, and that those disclosures prevented the court from

equitably dividing the assets and liabilities of the marriage.

¶21. Before the divorce trial, a temporary order was entered requiring Stewart to pay

$4,500 per month to Rosemary for alimony and child support. The order stated that both

parties could make credit card payments on the cards issued in their own name but that no

further charges should be made to the cards. Rosemary stopped paying the American

Express bill and all of the purported undisclosed debts at that time. Stewart admitted to being

aware of the American Express debt but stated that such debt was paid through Regions

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Bank. The divorce judgment stated that Rosemary’s alimony took into consideration the

payoff of the Wells Fargo and Regions debts by the plaintiff. Stewart stated that his

interpretation of the judgment meant that Rosemary was to pay all of the debts through

Regions, including the American Express credit card debt. The record shows that Rosemary

had individual debt through Regions, but other than Stewart’s testimony, no verification can

be found that the American Express debt was through Regions as well.

¶22. However, nothing in the record undermines that Stewart was unaware of the

remaining debts. Rosemary claimed to be unaware of an address to send the debt collection

notices to, but stated she informed the credit companies to send the statements to his work

address. However, the parties did communicate via email. Exhibits were submitted showing

the following additional debts totaling $18,438.59: (1) Oreck $948, (2) Sam’s Club

$6,447.62, (3) Chase $6,331, (4) Best Buy $4,711.97. Stewart also submitted his own

statement of expenses and debts which included all of the above debts as undisclosed with

an additional Citi debt of $8,503. Stewart marked the Citi debt as recently discovered but

submitted no supporting documentation.

¶23. It was never an issue whether Rosemary was aware of these debts. Rosemary’s

testimony supports that she knew of the debts and chose to list only some of the debts that

were listed solely in Stewart’s name. Although mere nondisclosures alone do not rise to the

level of fraud on the court, Rosemary’s actions rise to the level of fraud by encompassing

more than just mere nondisclosures. The ruling in Trim clearly states that simply failing to

disclose essential facts to the proceedings to the adverse party or the court does not rise to

the level of fraud. Id at 477-78 (citing Kerwit Med. Prods., Inc. v. N & H Instruments, Inc.,

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616 F. 2d 833, 836 n. 8 (5th Cir. 1980)). There must be a finding that the disclosure was

intentional. Trim, 33 So. 3d at 478. Additionally, Rule 8.05 states that a violation of the

rule results in contempt of court if no just cause exists to support the violation. Miss. Unif.

Ch. R. 8.05. The elements of intentional or fraudulent representation are as follows:

(1) a representation, (2) its falsity, (3) its materiality, (4) the speaker’s
knowledge of its falsity or ignorance of its truth, (5) his intent that it should be
acted on by the hearer and in the manner reasonably contemplated, (6) the
hearer’s ignorance of its falsity, (7) his reliance on its truth, (8) his right to rely
thereon, and (9) his consequent and proximate injury.

Trim, 33 So. 3d at 478 (citing McCord v. Healthcare Recoveries, Inc., 960 So. 2d 399, 406

(Miss. 2007)).

¶24. Here, testimony by Rosemary states that she paid the bills since Stewart worked

away from home. Both of the parties’ 8.05 financial statements list Rosemary as the person

who paid for the debts that are listed. Rosemary’s financial statement listed debts that are

in her name alone, in Stewart’s name alone, and in both their names. Clearly, Rosemary

chose to list only some of the debts that were solely in Stewart’s name. Stewart’s testimony

supports that he was unaware of these debts, had moved from the marital home where the

notices were being mailed, and was promptly approved for a loan to pay all of the debts

when he became aware of their existence. As a result, Stewart was injured by the

chancellor’s inability to equitably divide the marital assets and liabilities during the divorce

judgment and was forced to incur additional debt to pay for the newly discovered debt. For

these reasons, the dissenting opinion is farfetched by concluding that no evidence exists to

support a finding of fraud.

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¶25. It is important to note that the chancellor also concluded that it was clear that

Rosemary had failed to disclose two additional bank accounts and her entitlement to receive

social security benefits. Rosemary argues that the chancellor disregarded her testimony that

she was unaware of being named on her mother’s account, that she neither withdrew from

nor deposited into the account, and that she did not begin receiving social security until six

months after the divorce trial. However, nothing from the record indicates that the

chancellor disregarded Rosemary’s testimony when considering those issues, thus we will

not disturb the chancellor’s findings.

¶26. Under the facts of this case, we find the chancellor’s decision was based on clear and

convincing evidence, and substantial credible evidence exists to support that Rosemary

committed a fraud upon the court by not revealing to the court or Stewart the existence of

the additional debt. As a result, Stewart’s monthly expenses have substantially increased.

Although the chancellor failed to list specifically the elements of intentional or fraudulent

representation in her judgment, the chancellor, as the finder of fact, exercised her

discretionary powers to consider the credibility of differing testimony and conflicting

evidence, and ample evidence existed to support that the elements were met. Trim, 33 so.

3d at 479. Accordingly, there is no support for this issue.

III. Whether the third chancery judge’s findings were unsupported by
the evidence, contrary to law, and deprived Rosemary of a fair
trial.

A. Stewart’s Income

¶27. Rosemary argues that the first chancellor entered the divorce judgment based on

Stewart’s income being $120,000, when his actual reported income was $150,000. Further,

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testimony before the second chancellor revealed that Stewart’s income in 2010 was already

significantly higher during the first six months of that year based on Stewart working longer

hours.

¶28. The evidence of Stewart’s income presented at the August 2010 hearing included

Stewart’s 2009 tax return, bank statements for the end of 2009 through the beginning of

2010, and direct deposit sheets for May, June, and July of 2010. The chancellor relied upon

the decrease in monthly income reflected on the May, June, and July direct deposit sheets,

but failed to consider the year to date income, which reflected an increase in payments

during the earlier part of the year. Stewart did testify that his income was greater during

the beginning of 2010 due to working more hours. A review of the record shows that

Stewart’s income fluctuates from year-to-year. Accordingly, this case requires reversal for

a further factual determination regarding whether Stewart’s income had declined so that the

court can properly determine the appropriate amount of child support and alimony to be

awarded.

B. Child Support

¶29. The chancellor retroactively reduced Stewart’s child support back to the month when

Sean testified indicating his desire not to have a relationship with his father.

¶30. “In child support modification proceedings . . . the chancellor is accorded substantial

discretion and is charged to consider all relevant facts and equities, to the end that a decree

serving the best interests of the children may be fashioned. . . .” A.M.L. v. J.W.L., 98 So.

3d 1001, 1016 (Miss. 2012) (quoting Tedford v. Dempsey, 437 So. 2d 410, 417 (Miss.

1983)). Each time child support payments become payable, those payments vest in the

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child. A.M.L., 98 So. 3d at 1017. Further, “[a]ny order for support of minor children . .

. shall not be subject to a downward retroactive modification.” Miss. Code Ann. § 43-19-

34(4) (Rev. 2009). If downward modification is warranted, reductions become effective

on the date of the judgment ordering modification. A.M.L., 98 So. 3d at 1017 (citing

Cumberland v. Cumberland, 564 So. 2d 839, 847 (Miss. 1990) (citations omitted)).

¶31. Therefore, the chancellor erred in allowing a retroactive downward modification to

Stewart’s child-support obligation dating back to the August 2010 hearing. Thus, Stewart

was required to continue $1,300-per-month payments until the judgment ordering

modification was entered in February of 2011. See Cumberland, 564 So. 2d at 847;

Thurman v. Thurman, 559 So. 2d 1014, 1016–1018 (Miss. 1990); Brand v. Brand, 482

So. 2d 236, 237 (Miss. 1986); Hailey v. Holden, 457 So. 2d 947, 951 (Miss. 1984);

Hambrick v. Prestwood, 382 So. 2d 474, 476 (Miss. 1980).

¶32. Rosemary also argued that Stewart ceased making child-support payments in August

2010; thus he should be required to pay interest on those months that he did not pay. We

agree. This Court consistently has held that interest accrues on unpaid child-support

payments at the time each payment becomes due. Tanner v. Roland, 598 So. 2d 783, 786

(Miss. 1992) (citing Brand, 482 So. 2d at 238); see also Rubisoff v. Rubisoff, 242 Miss.

225, 235, 133 So. 2d 534, 537 (Miss. 1961).

¶33. The chancellor determined that it was in Sean’s best interest not to render him

emancipated, thus requiring Stewart to continue paying child support, because of the clear

adult influences seeking to encourage the demise of Stewart’s and Sean’s relationship.

Additionally, the $1,300-per-month child support was ordered pursuant to an agreement of

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the parties in their consent to adjudicate, and cannot be modified without a finding of a

material change in circumstances, which were not foreseeable prior to the time of the

agreement. Varner v. Varner, 666 So. 2d 493, 497 (Miss. 1995); Thurman, 559 So. 2d at

1017; Tingle v. Tingle, 573 So. 2d 1389, 1391 (Miss. 1990). This Court has said that

modification is not warranted based on the diminishing financial ability of the parent if his

position has been worsened voluntarily. Varner, 666 So. 2d at 497 (citing Parker v.

Parker, 645 So. 2d 1327, 1331 (Miss. 1994)).

¶34. Here, the chancellor seemingly based the continuance of child support on Sean’s

attendance in school and on a minimum GPA requirement, because Sean, now age 18,

would be rendered emancipated without remaining in school. Miss. Code Ann. § 93-11-

65(8)(b)(i).1 The judgment further stated that child-support obligations also will terminate

when any other elements are met, rendering Sean emancipated, and that Stewart was

relieved of any obligations to pay college expenses. Rather than ruling Sean emancipated,

the chancellor eliminated Stewart’s requirements to pay college expenses based on the

deterioration of the father-son relationship and Sean’s desire not to have any relationship

with Stewart, but required the continuance of child support.

¶35. This Court has provided that a parent’s obligation to pay for his or her child’s

college education is not absolute, because the court must consider whether the extra

financial obligation is warranted based on the child’s “aptitude and qualifications for

1
Mississippi Code Section 93-11-65(8)(b)(i) states: “Unless otherwise provided for in the
underlying child support judgment, the court may determine that emancipation has occurred and no
other support obligation exists when the child discontinues full-time enrollment in school having
attained the age of eighteen (18) years. . . .”

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college,” and the child’s attitude toward and relationship with the parent. Hambrick v.

Prestwood, 382 So. 2d 474, 477 (Miss. 1980); see Caldwell v. Caldwell, 579 So. 2d 543,

548 (Miss. 1991)(a child may forfeit receiving support from a noncustodial parent when the

child’s actions are clear and extreme). Therefore, the chancellor did not err in finding that

Stewart was no longer required to pay for Sean’s college expenses.

¶36. However, the chancellor erred in requiring Sean to maintain a “C” average to

continue receiving child support, because child-support modifications are to be considered

in light of the best interest of the child, including a determination of the parent’s ability to

provide for those needs, not the child’s ability to prove worthy of support. Wallace v.

Wallace, 965 So. 2d 737, 742 (Miss. Ct. App. 2007) (citing Tedford, 437 So. 2d at 417;

Caldwell, 579 So. 2d at 548 (emphasis added)). Further, both parents are to be held

responsible for the “care, custody, and maintenance of the child of the marriage.” 4 Miss.

Practice, Encyclopedia of Miss. Law § 28:17 (2001). For these reasons, this judgment is

reversed and the case remanded for the chancellor to determine the appropriate amount of

child support to be awarded until Sean is ruled emancipated.

C. Alimony

¶37. Rosemary argues that the chancellor did not have the authority to reduce her alimony

retroactively to the date of the August 2010 hearing. This Court has held that alimony may

be reduced retroactively at the discretion of the chancellor to the date the petition to modify

was filed. Shearer v. Shearer, 540 So. 2d 9, 12 (Miss. 1989) (citing McHann v. McHann,

383 So. 2d 823, 826 (Miss. 1980)); see also Austin v. Austin, 981 So. 2d 1000, 1006-1007

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(Miss. Ct. App. 2007). Accordingly, we find this issue to be without merit, because Stewart

first requested that the court modify Rosemary’s alimony in June 2010.

CONCLUSION

¶38. This Court finds that the chancellor did not abuse her discretion by modifying the

judgment of divorce sua sponte pursuant to Rule 60(b) of the Mississippi Rules of Civil

Procedure. Further, substantial credible evidence existed to support that Rosemary

committed a fraud upon the court by clear and convincing evidence; therefore, the

chancellor did not err in determining the same. However, this judgment is reversed and the

case remanded to the Chancery Court of Lamar County, Mississippi, for further factual

determinations concerning Stewart’s income and the amounts that should be ordered for

child support and alimony consistent with this opinion.

¶39. AFFIRMED IN PART; REVERSED IN PART AND REMANDED.

LAMAR, KITCHENS AND CHANDLER, JJ., CONCUR. RANDOLPH, P.J.,
CONCURS IN PART AND IN RESULT WITHOUT SEPARATE WRITTEN
OPINION. DICKINSON, P.J., CONCURS IN PART AND DISSENTS IN PART
WITH SEPARATE WRITTEN OPINION JOINED BY WALLER, C.J., KING AND
COLEMAN, JJ.; CHANDLER, J., JOINS IN PART.

DICKINSON, PRESIDING JUSTICE, CONCURRING IN PART AND
DISSENTING IN PART:

¶40. The chancellor – after reading a transcript of a hearing that took place before a

previous chancellor, and that had nothing to do with fraud – decided that Rosemary Finch

previously had committed a fraud upon the court by failing to report on her Rule 8.05

financial disclosure form that her husband, Stewart Finch, had some credit card debt. Never

mind that Stewart also failed to disclose it. In my judgment, the chancellor’s finding of

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fraud and the order of sanctions were erroneous. Accordingly, I concur in part and dissent

in part with the plurality opinion.

Violation of due process and simple fairness

¶41. First, this issue came out of left field. No party ever filed a motion asking the

chancellor to find that Rosemary had committed fraud on the court. No party ever argued

that Rosemary had committed a fraud upon the court. And the chancellor gave no notice

– ever – that she would, for the first time, take the issue up in her final order. Never has any

chancellor – with no notice to the parties and no opportunity to submit evidence on the issue

– been allowed by this Court to find that a party committed fraud upon the court, and to

issue sanctions.

¶42. At the beginning of the last hearing held in this litigation, the chancellor – after

stating the purpose of the hearing – stated that “no additional claims or allegations are

being made at this time.” The parties agreed, specifying that the only matters to be taken

up were Rosemary’s Motion for Enforcement of a Judgment and Stewart’s Motion to

Strike. No one mentioned any issue related to Rule 60(b) relief for fraud upon the court.

¶43. The truth is, Stewart never filed any motion or other pleading alleging Rosemary had

committed fraud upon the court; and prior to blindsiding Rosemary at oral argument, he

never made any argument that Rosemary’s failure to report his credit card debt on her Rule

8.05 financial statement amounted to fraud on the court. And, as stated above, the

chancellor – with agreement of all parties – specifically limited the issues to be argued, and

those issues did not include anything to do with fraud or the Rule 8.05 issue.

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¶44. No witnesses testified at the oral argument, and Rosemary was never put on notice

that the Rule 8.05 issue would even be considered. This comports neither with due process

nor my view of simple fairness in the judicial process.

¶45. With respect, I cannot agree with the plurality’s conclusion that Stewart’s mere

mention in his proposed findings of fact and conclusions of law (which, by the way, was

not filed until after the evidentiary hearing, and which was completely unrelated to any

claim of fraud upon the court) was sufficient to relieve him of the obligation to file a

motion, or to relieve the chancellor of the obligation to provide notice and a hearing on the

matter, before awarding sanctions. And I certainly cannot join the plurality’s unreasonable

expectation that Rosemary – with no notice whatsoever, and no opportunity to defend

herself – simply should have assumed the chancellor would find she had committed fraud

upon the court.

¶46. While I respect and appreciate our chancellors and the difficult work they are

required to do, the day will not come when I will agree to affirm a finding of fraud against

a party who was never put on notice of any fraud allegation and never given an opportunity

to defend it. A chancellor’s discretion does not, in my view, reach that far.

No evidence to support fraud

¶47. There is no such thing as accidental fraud, that is to say, for an act to be fraudulent,

it must be intentional. The chancellor who found that Rosemary committed fraud for failing

to disclose Stewart’s credit card debt, has no evidence from the record to suggest why she

did so. She took no evidence on the issue.

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¶48. Not every failure to disclose information on a Rule 8.05 disclosure statement results

in fraud. This Court has recognized that “mere nondisclosures to an adverse party and to

the court of facts pertinent to a controversy before the court does not add up to ‘fraud upon

the court’ for purposes of vacating a judgment under Rule 60(b).” 2 Instead,

relief based on “fraud upon the court” is reserved for only the most egregious
misconduct, and requires a showing of “an unconscionable plan or scheme
which is designed to improperly influence the court in its decision.” 3

¶49. Where is the evidence of a “plan or scheme”? It is not in the record, nor will you

find it discussed in the plurality opinion. To the contrary, the record clearly discloses that,

rather than attempting to gain an advantage by misleading the chancellor about financial

matters, Rosemary chose not to pursue the chancellor’s clearly erroneous finding that

Stewart’s income was $121,000, when it actually was $150,000. Both the record and the

majority opinion are void of any hint of evidence to support fraud. And all of this is in the

context of almost $300,000 in liabilities.

¶50. One final point concerning the plurality’s statement that “nothing in the record

undermines that Stewart was unaware of the remaining debt.” This provides the only

example I have seen where a finding of fraud has been predicated upon the accused’s

failure to submit evidence that he or she did not commit fraud.

¶51. A finding that a party has committed fraud upon the court is not a trivial matter, and

Rosemary should have been afforded notice of this serious claim against her, and an

2
Trim v. Trim, 33 So. 3d 471, 477-78 (Miss. 2010) (quoting Kerwit Med. Prods. v. N & H
Instruments, Inc., 616 F.2d 833, 836 n.8 (5th Cir. 1978)).
3
Trim, 33 So. 3d at 477-78 (quoting Wilson v. Johns-Manville Sales Corp., 873 F.2d 869,
872 (5th Cir. 1989) (quoting Rozier v. Ford Motor Co., 573 F.2d 1332, 1338 (5th Cir. 1978))).

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opportunity to defend against it. Because the chancery court failed to do so here, and

because the plurality fails to correct the error, I would also reverse both the chancellor’s

finding that Rosemary committed a fraud upon the court, and the award of sanctions.

WALLER, C.J., KING AND COLEMAN, JJ., JOIN THIS OPINION.
CHANDLER, J., JOINS THIS OPINION IN PART.

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