IN THE SUPREME COURT OF MISSISSIPPI
NO. 2007-CT-02047-SCT
ARTHUR D. CARLISLE, ADMINISTRATOR OF
THE ESTATE OF CHARLES E. ALLEN, III,
DECEASED
v.
JANET ELLEN DAVIS ALLEN
ON WRIT OF CERTIORARI
DATE OF JUDGMENT: 10/19/2007
TRIAL JUDGE: HON. JAMES H. C. THOMAS, JR.
COURT FROM WHICH APPEALED: PEARL RIVER COUNTY CHANCERY
COURT
ATTORNEY FOR APPELLANT: MICHAEL J. VALLETTE
ATTORNEYS FOR APPELLEE: JOSEPH EDGAR FILLINGANE
CAROL ANN ESTES BUSTIN
NATURE OF THE CASE: CIVIL - DOMESTIC RELATIONS
DISPOSITION: 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 - 07/29/2010
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
EN BANC.
PIERCE, JUSTICE, FOR THE COURT:
¶1. A divorced couple, Charles Allen and Janet Allen, filed a petition to revoke their
divorce. While the petition was pending, Charles died. The chancellor initially quashed the
motion. On rehearing, the chancellor found that Janet had produced sufficient evidence of
reconciliation and entered an order revoking the divorce. Arthur Carlisle, the administrator
of Charles’s estate, appealed on his behalf. The Court of Appeals – finding cases in which
a party to a pending divorce died prior to a final entry of divorce to be analogous – held that
the chancery court did not have jurisdiction to hold an evidentiary hearing, and reversed and
rendered the matter. Janet filed a petition for writ of certiorari, which this Court granted.
FACTS
¶2. Charles and Janet Allen were married on November 24, 1996, and divorced on
September 23, 2002, in the Chancery Court of Pearl River County. The couple had no
children during their marriage. On May 17, 2006, Janet and Charles filed a Joint Application
to Revoke Judgment of Divorce, which was properly signed by both parties, in the chancery
clerk’s office of Pearl River County. This application was prepared by Arthur D. Carlisle.
The parties took no further action on the petition, and Charles died on June 16, 2006, prior
to any evidence of reconciliation being presented to the trial court.
¶3. The trial court quashed the application to set aside the divorce nearly one year after
Charles’s death. The trial court’s order stated that it would allow Janet to file a timely
request for reconsideration, if she could show sufficient facts of a satisfactory reconciliation.
Carlisle represented Charles’s estate as its administrator.
¶4. Janet filed for reconsideration and testified to the following facts regarding her
reconciliation with Charles: the two had maintained their relationship after the divorce;
Charles and Janet had continued to talk and go out together; Charles had a private telephone
line put in Janet’s house so he could call her; the two had spent every weekend together from
March 2006 until Charles’s death in June 2006; Charles had called her multiple times a day
while she was recovering from a hip injury she incurred following Hurricane Katrina;
2
Charles had plans to sell his house and move back into the former marital home with Janet;
and the couple had opened a joint banking account.
¶5. Janet also testified that the reason the couple initially had divorced was that Janet had
become sick during the marriage and Janet’s mother, Mary Davis, had encouraged her to get
divorced. Janet testified that Charles did not come into the courtroom the day they were
divorced. Regarding their relationship after the divorce, Janet stated, “we were always close.
It was like we were never really divorced.” Once they filed the petition to revoke the
divorce, the couple both began wearing their wedding rings.
¶6. On cross-examination, Janet testified that Charles had paid the bills at his house, and
– other than the bill for the phone line Charles had placed in Janet’s home – Davis had paid
the bills at her house. After Charles’s death, his body was found at his home by his
housekeeper, Beverly Slaydon. Janet was at her home and was informed of his death by
Slaydon.
¶7. Davis testified that the coroner sent Charles’s personal effects to Davis. She said she
supposed the coroner did this because of her daughter’s relationship with Charles.
¶8. Slaydon testified that she had met Janet while working for Charles in his home.
Slaydon testified that she often had talked to Janet on the phone, but Charles would not give
her Janet’s phone number because it was “just for him and [Janet].” She testified that Charles
was on the phone with Janet constantly, that Janet regularly had spent weekends at Charles’s
house, and Charles and Janet would hold hands, talk, and laugh. In her opinion, Charles and
Janet loved each other very much. Finally, Slaydon testified that the only other woman she
ever saw at Charles’s home was Janet’s personal care provider, Patricia Beard.
3
¶9. Beard cared for Janet as she recovered from a hip injury and, during that time, drove
Charles and Janet to Poplarville to file the petition to revoke their divorce. She saw Charles
sign the joint application and take it to the courthouse. She testified to seeing Charles three
to four times per week, and said that Charles would bring Janet lunch, flowers, or presents.
She stated that Charles and Janet would spend hours together on the phone. In her opinion,
Charles and Janet had a very loving and affectionate relationship. It was her understanding
that the couple had wanted to have their divorce revoked and that Charles had planned to
return to the marital home. She stated, “[Charles] never felt that they were divorced. He
wanted to be with her. He told me that she was his life partner.” Finally, Beard testified that
Charles had asked her to find his wedding band, and she had seen him wearing it.
¶10. Carlisle testified that he was a close friend of Charles’s, and he had known him since
1969. He stated that he had prepared the application to revoke the divorce, but that it was
his understanding that Charles “never intended to marry [Janet] or set aside the divorce.” He
further testified that he previously had prepared four or five applications to revoke the
divorce for Charles, but Charles had thrown those applications away. Carlisle thought
Charles felt cheated out of the marital home in the divorce, and was using the revocation of
divorce to “recover what he thought was rightfully his.”
¶11. Carlisle further testified that he regularly had visited Charles and that he never had
noticed signs of anyone staying with him. When he visited Janet after Charles’s death,
Carlisle said the first thing Janet told him was that she was not going to pay for the funeral
arrangements. As a result, he made a number of the funeral arrangements personally.
However, Janet testified that Carlisle volunteered to make the funeral arrangements and
4
refused to allow her to pay for the service. Finally, Carlisle testified that Charles had a
personal relationship with a female attorney before and after Hurricane Katrina. While he
did not know the woman’s name, it was someone other than Janet.
RULING IN THE CHANCERY COURT
¶12. Carlisle filed a motion to quash the application to revoke the divorce. The chancery
court subsequently entered an order quashing the application on June 11, 2007. The trial
court reasoned that “no hearing or other evidence of the reconciliation was presented prior
to the death of Charles E. Allen, III,” and found that the motion therefore should be quashed.
However, the order specified that the chancery court would “entertain a motion to reconsider
this finding should the co-applicant timely file such a request and show sufficient facts
evidencing a satisfactory reconciliation of the parties.”
¶13. Janet filed a motion for reconsideration eleven days later, on June 22, 2007. Carlisle
subsequently filed a motion to strike Janet’s motion for reconsideration, arguing that it was
untimely and that Janet had failed in the motion to show sufficient facts evidencing a
reconciliation. The chancery court held a hearing on the matter, in which both Janet and
Charles’s estate presented testimony regarding the couple’s reconciliation, as described
above. The chancellor entered his order on October 24, 2007, finding jurisdiction proper and
granting the revocation of divorce.
¶14. The chancery court also found evidence of intent to revive the marriage in that Charles
and Janet had jointly filed the petition. Further evidence which supported an intention to
revive the marriage noted by the chancellor included: Charles and Janet often had stayed with
one another, went out together, talked frequently, and had opened a joint bank account in
5
their names. The chancellor dismissed the claim that the petition to revoke the divorce was
an attempt by Charles to acquire title to the marital home.
¶15. Carlisle timely appealed on behalf of Charles’s estate, raising several issues. Those
issues can be fairly summarized as follows:
I. Whether the chancery court had jurisdiction after the death of Charles.
II. Whether the chancellor erred in finding that Janet had produced
sufficient evidence to revoke the divorce.
III. Whether the chancellor erred in failing to strike Janet’s motion to
reconsider as untimely and for failure to set forth significant facts, and
subsequently holding a hearing on the matter.
IV. Whether the chancellor erred in not dismissing the action to set aside
the divorce because Janet did not file a revivor after Charles’s death.
HOLDING OF THE COURT OF APPEALS
¶16. The Court of Appeals held that the chancellor should not have conducted a hearing
on the matter, because it lacked jurisdiction. This Court previously has heard a case
involving a petition to revoke divorce which was filed by only one spouse after the death of
the other spouse. Wells v. Roberson, 209 So. 2d 919 (Miss. 1968). However, the Court of
Appeals correctly found that those facts were distinguishable from the present matter. The
court further noted that no cases directly on point could be found. Carlisle v. Allen, 2009
WL 1758864, *4, ¶15 (Miss. Ct. App. June 23, 2009). Therefore, this is an issue of first
impression in Mississippi.
¶17. The Court of Appeals found that the most analogous cases are those in which a
married couple files for divorce and one of the parties dies before a valid divorce decree is
entered. In such cases, this Court has held, “upon the death of one of the parties to a purely
6
divorce action, before the entry of a final decree . . . the action may not be continued and no
final decree of divorce may be entered thereafter, since . . . there is then no status of marriage
upon which the final decree of divorce may operate.” Pittman v. Pittman, 375 So. 2d 415,
416 (Miss. 1979) (quoting 104 A.L.R. 654). The Court of Appeals also noted that this Court
recently has said, “The law regarding the death of one of the parties in a divorce action, as
set out in Pittman, is still valid.” Barton v. Barton, 790 So. 2d 169, 173 (Miss. 2001).
¶18. Relying on what were considered to be analogous cases, the Court of Appeals held
that “substitution of another party in Charles’s place is not proper.” Carlisle, 2009 WL
1758864, *4, ¶17. Reasoning that the purpose of revoking a divorce is to “reunite two
formerly married parties as a married couple,” the Court of Appeals held that no purpose
would be served in revoking the divorce because there is “no status of marriage upon which
. . . [to] operate.” Id.
¶19. The Court of Appeals agreed with the chancery court that Janet had put on sufficient
evidence of her reconciliation with Charles prior to his untimely death. Id. at *4, ¶18.
However, the court found the trial court lacked the “power” to reinstate the marriage because
of Charles’s death. Id. at * 4, ¶18. The Court of Appeals held that the chancellor erred in
conducting an evidentiary hearing on the matter and reinstated the final judgment of divorce.
The judgment of the chancery court was reversed and rendered. Janet then filed a petition
for writ of certiorari, which this Court granted.
ANALYSIS
¶20. The findings of a chancellor are subject to an abuse-of-discretion standard on review.
Barton v. Barton, 790 So. 2d 169, 175 (Miss. 2001) (quoting Cummings v. Benderman, 681
7
So. 2d 97, 100 (Miss. 1996)) (This Court “will not disturb the factual findings of a chancellor
when supported by substantial evidence unless the Court can say with reasonable certainty
that the chancellor abused his discretion, was manifestly wrong, clearly erroneous or applied
an erroneous legal standard.”) However, questions of law will be reviewed de novo. Keener
Props., LLC v. Wilson, 912 So. 2d 954, 956 (Miss. 2005) (citing Weissinger v. Simpson, 861
So. 2d 984, 987 (Miss. 2003)).
¶21. The statute regulating revocation of divorce reads as follows:
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). Each of the statute’s requirements have been met,
and therefore, the chancellor did not err in holding a hearing on the matter and revoking the
judgment of divorce.
¶22. The Court of Appeals erroneously ruled that petitions to revoke a divorce should be
governed by the rules which govern petitions to dissolve a marriage. We have said, “Divorce
in Mississippi . . . is purely and simply a creature of statute. The revocation or setting aside
of divorce decrees is also governed entirely by statute.” Wells v. Roberson, 209 So. 2d 919,
923 (Miss. 1968) (emphasis added). It is well-established that “when a right is given solely
by statute it is subject to the terms named in the statute.” Price v. Price, 202 Miss. 268, 32
So. 2d 124, 126 (Miss. 1947). Further, this Court has said, “when a special and particular
statute deals with a special and particular subject, its particular terms as to the special subject
control over general statutes dealing with the subject in general.” Id. (citing Gully v.
8
Lumbermen’s Mut. Cas. Co., 176 Miss. 388, 397, 166 So. 541 (1936)). The Legislature has
clearly laid out the standards which must be met in order to have a divorce revoked, and
those are separate requirements from those governing the grant of a divorce decree.
I. Jurisdiction
¶23. Carlisle alleges that the application to revoke the divorce abated upon Charles’s death.
In support of this argument, Carlisle points to this Court’s holding in the nearly-two-century-
old case, Gerault v. Anderson, 1 Miss. 30, 1818 WL 456 (June Term 1818), wherein we
said, “on the death of [a] party his interest ceases, and the jurisdiction of the court ceases
also.” Id. at *2. Carlisle further points to this Court’s opinion in Wells, the only case in
which this Court has dealt with a similar fact scenario. The Wells Court acknowledged the
Gerault holding and other similar precedents. See Wells, 209 So. 2d at 922.
¶24. However, the holding in Wells was not premised on the trial court’s jurisdiction, but
rather on the failure of the petitioner to meet each of the statutory requirements. Id. The
Wells Court relied on the principle discussed above, “when a right is given solely by statute
it is subject to the terms named in the statute.” Price, 32 So. 2d at 126. In Wells, we found
that the petitioner did not meet the terms of Section 2747 of the 1942 Mississippi Code
(which today is Mississippi Code Section 93-5-31) because the petition was not filed jointly
– rather it was an ex parte petition filed after the husband’s death. Because the “statute fixes
the conditions upon which the right [to have a divorce revoked] may be asserted, the
conditions are an integral part of the right thus granted – are substantive conditions, the
observance of which is essential to the assertion of the right.” Wells, 209 So. 2d at 923.
9
Therefore, this Court decided Wells based on whether each of the requirements of the statute
had been met, as we do today.
¶25. Further, while Carlisle cites many historical precedents for the proposition that the
court’s jurisdiction ceases upon the death of one of the parties, he overlooks a central element
required for a jurisdictional argument. While alimony, child support, and visitation are
personal matters, actions touching on the marriage relationship itself, including divorce, are
not personal — they are in rem actions,1 and are subject to statutory control. Indeed, one
spouse may obtain a divorce without personal service of process on the other. See, e.g.,
Noble v. Noble, 502 So. 2d 317, 320 (Miss. 1987).2
1
Deborah H. Bell, Bell on Mississippi Family Law 436 (2005) (“Adjudication of
marital status and custody are considered to be in rem actions. A court with subject matter
jurisdiction may enter a fault-based divorce or custody decree without personal jurisdiction
over the defendant.”); “An action for divorce is regarded as a form of in rem action,
permitting adjudication of rights based on the domicile of one of the parties — and therefore
the marriage — in a particular state. According to the United States Supreme Court, ‘Each
state as a sovereign has a rightful and legitimate concern in the marital status of persons
domiciled within its borders and . . . can alter within it own borders the marriage status of
the spouse domiciled there.’” Id. at 437 (quoting Williams v. North Carolina, 317 U.S. 287,
299, 63 S. Ct. 207, 87 L. Ed. 279 (1942)).
2
In Noble, we stated:
notwithstanding this Court's holding that the [chancellor] properly held that
it could not render a personal monetary judgment against the non-resident
defendant on [a summons by publication], it was not totally without
jurisdiction. The [chancellor] did have jurisdiction over the subject matter of
the divorce action and personal jurisdiction over one of the parties to the
marriage who did meet residency requirements for a divorce action. Miss.
Code Ann. § 93-5-5 (Supp. 1986). This statutory authority and the publication
notice gives the chancery court its authority to grant a divorce on constructive
notice by publication.
Noble, 502 So. 2d at 320 (emphasis added).
10
¶26. The Court of Appeals relied on this Court’s holding that “upon the death of one of the
parties to a purely divorce action before the entry of a decree therein, the action abates.”
Pittman, 375 So. 2d at 416 (emphasis added). As clearly stated by this Court, that rule
applies only to a purely divorce action. This is because “the dissolution of the marriage
relation [which is the relief the parties seek from the court] is already accomplished by the
prior death of one of the parties.” Id. (emphasis added). Thus, there is no status of marriage
for the court to dissolve.3
¶27. Here, the Legislature drafted and passed legislation which allows chancellors to
revoke divorces upon fulfillment of all the statutory requirements, even after the death of one
of the parties.4 In the present matter, the chancellor found that all the requirements of
Mississippi Code Section 93-5-31 had been met. Therefore, because the matter is one
touching upon the marital status of the parties and is an in rem action, the trial court
3
The dissent urges this Court to analyze the present matter based upon the marriage
and divorce statutes and our precedents regarding such statutes. However, the dissent fails
to recognize that, upon the death of one of the parties seeking a divorce, there is no status
of marriage remaining for the court to dissolve – the relief the parties sought has been
accomplished through the death of one of the parties. Further, the marriage statutes also are
distinguishable, in that entry into a marriage requires solemnization of the marriage between
the “persons” – requiring that both persons be present for the marriage to be solemnized. See
Miss. Code Ann. §§ 93-1-17, 93-1-19 (Rev. 2004).
4
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.
11
maintained jurisdiction in order to make that determination.5 The Gerault case cited by
Carlisle ultimately has no application whatsoever. According to specific language from the
case, “[i]t was an action in personam . . . .” Gerault, 1818 WL 456 at *2. Accordingly, the
chancery court maintained jurisdiction over the marital status of Janet at all relevant times
in the present matter.
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
5
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.
12
application to revoke the divorce and testimony presented at the hearing clearly showed that
the application for revocation of divorce was a joint application.6
¶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, 2009 WL
1758864, *4, ¶18.7
¶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
6
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 after the death of one of the spouses.
7
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.
13
¶32. Carlisle argues that Janet’s motion for reconsideration in the trial court was untimely
filed under Mississippi Rule of Civil Procedure 59 8 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 60,9 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.
¶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
8
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.
9
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).
14
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
15
suit . . . and his executor or administrator may, in case of the plaintiff's 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 Allens’ 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
16
(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[10] . . . . 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,
“[p]roceedings 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
10
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.
17
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.)
¶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.11
¶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:
11
“So the law is written.” Black’s Law Dictionary 966 (4th ed. 1968).
18
(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.”
19
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
20
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[,]” 12 (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.
12
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).
21
¶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,13
sufficient “intent” 14 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.15 Such an approach is legally
erroneous and practically untenable, a legal folly.
¶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
13
There is no mention of a filing requirement in Section 93-5-31. See Miss. Code
Ann. § 93-5-31 (Rev. 2004).
14
In the event that the court also finds “satisfactory evidence of their reconciliation.”
Miss. Code Ann. § 93-5-31 (Rev. 2004).
15
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.
22
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,16 despite the
irrefutable fact that at the time of death, the parties were divorced.
¶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 “entertain[ing] 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
16
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.
23
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:
24
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, 17 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.
WALLER, C.J., GRAVES, P.J., AND RANDOLPH, J., JOIN THIS OPINION.
17
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,
965 P.2d 1087, 1093 (Wash. 1998) (same).
25