John E. Shavers v. Ann B. Shavers ( 2000 )

IN THE SUPREME COURT OF MISSISSIPPI
NO. 2000-CA-01867-SCT
CONSOLIDATED WITH
NO. 2001-CA-00164-SCT
CONSOLIDATED WITH
NO. 2001-CA-01519-SCT
JOHN E. SHAVERS
v.
ANN B. SHAVERS
DATES OF JUDGMENTS: 10/03/2000; 01/08/2001; 06/01/2001
TRIAL JUDGE: HON. WALTER WESLEY TEEL
COURT FROM WHICH APPEALED: HARRISON COUNTY CHANCERY COURT
ATTORNEYS FOR APPELLANT: B. G. PERRY
ATTORNEYS FOR APPELLEE: DAMON SCOTT GIBSON
HERBERT J. STELLY, SR.
NATURE OF THE CASE: CIVIL - DOMESTIC RELATIONS
DISPOSITION: AS TO 2000-CA-01867-SCT AND 2001-CA-
00164-SCT, APPEALS DISMISSED. AS TO
2001-CA-01519-SCT, AFFIRMED -
05/22/2008
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
EN BANC.
SMITH, CHIEF JUSTICE, FOR THE COURT:
¶1. This appeal involves three consolidated appeals filed by John E. Shavers (John)
arising from the divorce action filed by his wife, Ann Shavers (Ann). Prior to the final
judgment of divorce, Ann filed two separate motions to find John in contempt of the trial
court's temporary order. John was found in contempt on both occasions, and he filed a notice
of appeal with this Court as to each judgment of contempt. John also has filed a notice of
appeal as to the final judgment of divorce.
¶2. Since the appeals were filed, John has been placed into involuntary bankruptcy
proceedings. Because the automatic stay pursuant to 11 United States Code, Section 362,
does not operate as a stay for the continuation of a civil action for the dissolution of marriage,
we proceed with the issues before us on appeal. See 11 U.S.C. § 362(b)(2)(A)(iv). Nothing
in this opinion is to be construed as a determination of the division of property.
¶3. Finding that John has abandoned the issues on appeal with regard to the judgments
of contempt in consolidated appeals numbered 2000-CA-01867-SCT and 2001-CA-00164-
SCT, we dismiss those appeals. Further, we find no merit in the issues John raised in his
third consolidated appeal and, therefore, affirm the final judgment of divorce.
FACTS
2000-CA-01867-SCT
¶4. Ann and John were married in Long Beach, Mississippi, on June 8, 1968. The couple
had one child together, John Anthony Shavers, who was not a minor at the time of the
parties’ divorce proceedings. In January of 1999, after thirty years of marriage, Ann filed
a complaint for divorce against John. The complaint alleged habitual cruel and inhuman
treatment and irreconcilable differences in the alternative. After a two-day hearing, a
temporary order was entered on July 23, 1999.
¶5. On August 18, 1999, Ann filed her amended complaint, adding an additional fault
ground of adultery. John filed his answer to the amended complaint contemporaneously with
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his counter-complaint for divorce on the grounds of adultery, habitual cruel and inhuman
treatment, or irreconcilable differences in the alternative.
¶6. Due to the extensive nature of the parties' assets as they existed at the time, the
chancery court sought the parties’ agreement on the appointment of an expert to value their
property. In its order of July 23, 1999, the chancery court directed that James Koerber would
be appointed as the chancery court's expert valuator in the event the parties were unable to
agree. The chancery court also ordered that John pay the retainer fee of the expert. Ann and
John were unable to agree, and Koerber was appointed as the expert valuator by operation
of the order.
¶7. On March 10, 2000, the chancery court entered another order addressing Koerber's
duties in the divorce action. This order affirmed his appointment as the chancery court's
expert and gave him the position of a master pursuant to Rule 53 of the Mississippi Rules of
Civil Procedure.
¶8. On May 8, 2000, the chancery court entered an order directing Koerber to employ an
equipment appraiser, Sanderson, to replace Guy Blankenship, who was appointed by the
March 10, 2000, order. Further, the May 8, 2000, order again directed John to advance the
costs of Sanderson's fee in the amount of $4,000 and to advance the additional costs of
Koerber's fees of $8,500 and $574. The chancery court reserved the assessment of these
costs between Ann and John until the final hearing.
¶9. On August 10, 2000, Ann filed a motion to cite John for contempt for failing to
advance the appraiser’s fees as directed by the May 8, 2000, order. Ann also requested that
she be permitted to sell real property in order to meet her financial needs due to the
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protracted nature of the litigation. John filed a motion to remove Koerber as the expert
valuator and to terminate support payments to Ann.
¶10. A hearing on Ann's complaint and John's motions was held on October 2 and 3, 2000.
The chancery court denied John's motion to remove Koerber and found John in contempt of
court for failing to advance the appraiser’s fees as directed. The chancery court stayed John's
punishment for contempt pending compliance and ordered John to provide Koerber with
financial documents and information within ten days. Ann was permitted to borrow funds
against a piece of real property and her support was reduced to $500 per week upon her
receiving the funds from the loan. John filed his notice of appeal on November 1, 2000.
2001-CA-00164-SCT
¶11. John began to file other motions with the chancery court such as: a Motion to Dismiss
the Divorce; a Motion to Recuse Herb Stelly, Sr.; a Motion to Set Application for
Disqualification and an Amendment to Application for Disqualification (requesting the judge
to remove or recuse himself); and a Motion to Withdraw Motion to Dismiss Divorce.
¶12. On December 14, 2000, Ann filed another complaint to cite John for contempt for
failing to comply with the provisions of the October 3, 2000, order which directed John to
furnish Koerber with financial information. Johns was ordered to supply the identified
financial documentation within ten days of October 3, 2000. As of the date of Ann's
contempt complaint, John had not complied. The divorce trial had been scheduled to begin
on January 22, 2001, and Koerber was unable to complete his valuation with the information
he had received from John.
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¶13. On January 2, 2001, John filed a Notice of Federal Removal. Attached to this
pleading was a Notice of Federal Removal which had been filed with the Federal District
Court for the Southern District of Mississippi, in Biloxi, on the same day. Attached to the
Notice of Federal Removal filed with the federal court was a copy of Ann's contempt
complaint filed December 14, 2000. John did not attach any other pleadings, claims, or
complaints to his Notice of Federal Removal with the federal court.
¶14. A hearing took place in the chancery court on January 4, 2001, on the various motions
filed by John and the contempt complaint filed by Ann on December 14, 2000. The chancery
court found most of John's motions to be without merit. At this hearing, John asked the
chancery court to set an appeal bond with respect to his appeal filed November 1, 2000. The
chancery court set the bond at $7,000, which John filed with the clerk on January 5, 2001.
¶15. Additionally, at this hearing, the chancellor found John in contempt for his failure to
provide the documents ordered to be produced to Koerber by the October 3, 2000, order. The
chancellor stayed the punishment pending compliance by John. John filed his notice of
appeal on January 23, 2001.
¶16. John's notice of appeal indicates that his appeal of the January 4, 2000, order, which
was entered on January 8, 2000, is limited exclusively to paragraphs 8(E) and 13. Paragraph
8(E) deals with the citation of contempt for failing to produce to Koerber the financial
information, and paragraph 13 pertains to the award of attorneys’ fees to Koerber.
2001-CA-01519-SCT
¶17. The chancery court reset the divorce trial for May 29, 2001. At trial, the parties
entered into a "Consent to Divorce on the Grounds of Irreconcilable Differences and Request
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that the Court Decide Controverted Issues Between the Parties" pursuant to Mississippi Code
Annotated, Section 93-5-2 (Rev. 1994). After two days of testimony, the chancery court
recessed so the parties could discuss settlement. The parties negotiated for a day and a half
before submitting a consent settlement agreement to the chancery court.
¶18. Ann and John agreed that Ann would go forward with her divorce on the ground of
habitual, cruel and inhuman treatment. The chancellor examined Ann on the factual basis
of her claim and the jurisdictional requirements. She testified that there had been problems,
arguments, fights, disputes, disagreements, and the like during the course of her marriage to
John. She further testified that if she remained in the marriage, it would be injurious to her
life, safety, and health, both physically and emotionally. The chancellor then granted Ann
a divorce on the ground of habitual, cruel and inhuman treatment.
¶19. The chancellor reserved to the parties the right to submit an irreconcilable differences
divorce for approval, but no such divorce or agreement was presented. The chancery court
entered its Judgment of Divorce on September 7, 2001, nunc pro tunc, August 23, 2001.
¶20. John filed his notice of appeal, challenging only the provision of the judgment of
divorce which granted the divorce on the ground of habitual, cruel and inhuman treatment.
Later, by order of September 28, 2001, the judgment was amended, on the chancery court's
own motion, to read "nunc pro tunc, June 1, 2001," the date on which the settlement was
concluded and announced.
ANALYSIS
2000-CA-01867-SCT and 2001-CA-00164-SCT
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¶21. The only issues that John has identified and argued in these consolidated appeals are
those pertaining to the final judgment of divorce entered on September 7, 2001, as later
amended on the chancery court's own motion by the order of September 28, 2001, which
reads “nunc pro tunc, June 1, 2001,” the date on which the settlement was concluded and
announced. In his brief, John has abandoned any issues he may have wanted to raise in the
first two appeals. Not only has he failed to identify the issues in his brief pursuant to
Mississippi Rules of Appellate Procedure 28(a)(3), John has not argued or cited any authority
in support of any issues that could have been raised in his first two appeals.
¶22. This Court consistently has held that an unsupported assignment of error will not be
considered. Ellis v. Ellis, 651 So. 2d 1068, 1072 (Miss. 1995). This Court does not have to
consider alleged error when no authority is cited for the error in the brief. Armstrong v.
Armstrong, 618 So. 2d 1278, 1282 (Miss. 1993). See also Brown v. Miss. Transp. Comm'n,
749 So. 2d 948, 959 (Miss. 1999). Accordingly, we dismiss the appeals numbered 2000-
CA-01867-SCT and 2001-CA-00164-SCT.
2001-CA-01519-SCT
I. WHETHER THE JUDGMENT OF FAULT DIVORCE IN
FAVOR OF ANN B. SHAVERS AND AGAINST JOHN E.
SHAVERS IS AN ABSOLUTE NULLITY DUE TO FEDERAL
REMOVAL.
¶23. John argues that the divorce judgment is invalid because, when it was granted on June
1, 2001, the matter had been removed to federal court, leaving the chancery court without
jurisdiction. The matter was not remanded until August 17, 2001. This issue is without
merit.
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¶24. On January 2, 2001, John filed his Notice of Federal Removal in the federal court and
with the chancery clerk. The federal court order remanding the matter was not issued until
August 17, 2001. Additionally, on January 8, 2001, John filed an amended and supplemental
notice of removal. However, it is clear from the notice and the pleading attached to it that
John sought only to remove “the attached Motion to Cite for Contempt of Court.” Likewise,
the amended and supplemental notice added only a “Motion in Limine to Cite for Contempt
of Court” and a “Motion to Lift Stay,” which also relate only to the contempt proceedings.
¶25. Although contempt proceedings in divorce cases often are filed in the same cause
number and proceed with the underlying divorce case, they are held to be separate actions,
requiring new and special summons under Mississippi Rules of Civil Procedure 81. See
Shangi v. Shangi, 759 So. 2d 1250 (Miss. Ct. App. 2000). This is further evidenced by the
August 17, 2001, order remanding cases issued by the federal magistrate judge, which stated
that removal proceedings were treated by the district court only in regard to the contempt and
discovery issues identified in John’s notices of removal and that they were remanded with
John's agreement.
¶26. John's other actions in the proceedings in the chancery court during the divorce trial
show that even he considered his removal efforts to be limited. Even if we assume, for the
sake of argument, that the removal petitions encompassed the divorce as well as the ancillary
contempt matters, there is at least limited authority holding that by proceeding in the state
court following removal, the defendant may waive objections to those proceedings.
¶27. In Mosher v. Conway, 76 P.2d 231 (Ariz. 1938), Conway brought an action in an
Arizona state court to quiet title to land. Mosher, one of the defendants, filed a general
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demurrer and a general denial. She also demanded a jury trial in open court. On the day set
for trial, Mosher did not appear. Conway presented his evidence, and the trial judge
instructed the jury to return a verdict for Conway.
¶28. On direct appeal, Mosher argued that the trial court had no jurisdiction because
Collins, one of the other defendants, previously had removed the case to federal court.
However, Mosher subsequently filed a motion to make the complaint more definite and
certain. Later, she made demand in open court for a jury trial, and subsequently filed her
answer to the complaint. Her motion for a new trial made no mention of the removal.
¶29. The Arizona Supreme Court stated that “[o]n consent of all the parties the jurisdiction
could, if lost, be resumed. If the court had no right to exercise jurisdiction over the case,
good faith and fairness on defendant's part should require that she make some objection to
the court's trying the case.” Mosher, 76 P.2d at 233. The Arizona Supreme Court then held
that the "objection comes too late when presented for the first time in this court."
¶30. Although Mosher is not controlling in this Court, it is persuasive. The facts of the
instant case strongly support a finding that John waived any such objection and is estopped
from raising the objection in this Court. On May 29, 2001, prior to the district court entering
its August 17, 2001, order remanding the matter, John and Ann submitted an agreement to
the chancery court to consent to divorce on the grounds of irreconcilable differences and
requested the court to decide controverted issues. The agreement expressly declared that
"each party voluntarily consents to the Court granting a divorce to the parties on the ground
of Irreconcilable Differences" and that "each party hereby voluntarily consents to permit the
Court to decide the issues upon which the parties cannot agree." (Emphasis added).
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¶31. The trial proceedings lasted for several days with John present and represented by four
attorneys. John offered motions in limine and to strike Koerber's valuation. His attorneys
engaged in extensive cross-examination of witnesses, and at the conclusion of the trial, the
parties announced a settlement which was approved by the chancellor. The settlement
provided that Ann be granted a divorce on the grounds of habitual cruel and inhuman
treatment and further disposed of financial issues.
¶32. By John’s own actions, he confirmed that the federal removal was limited to the
contempt proceedings. Further, the following colloquy between the trial judge and B.G.
Perry, one of John's attorneys, verified the distinction between the divorce action and the
contempt action concerning removal:
THE COURT: If U.S. District Judge Bramlette will take this divorce trial, it
will be a novelty and oh, it would be wonderful.
MR. PERRY: Your Honor, we didn't send him the whole thing now.
THE COURT: Oh, you sent him the contempt portion or tried to . . . .
As stated before, there is no merit to this issue.
II. WHETHER THE JUDGMENT OF FAULT DIVORCE IN
SHAVERS v. SHAVERS IS UNCONSTITUTIONAL AND DENIES
DEFENDANT DUE PROCESS OF LAW.
¶33. John asserts that the chancery court's “rendition of a fault divorce on grounds against
John E. Shavers in lieu of Irreconcilable Differences and No Fault, denies John E. Shavers
his constitutional rights of ‘due process of law,’ by the State of Mississippi, as guaranteed
by the Fourteenth Amendment, United States Constitution, and therefore the Judgment of
Divorce on grounds of fault against John E. Shavers is unconstitutional, null and void.” It
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is difficult to discern from John's brief the exact argument he is attempting to make
concerning the alleged due-process violation. John does not cite any authority for his
contention and we decline to address it. Armstrong, 618 So. 2d at 1282. Further, John’s
argument again returns to the topic of the chancery court's jurisdiction pending federal
removal. This issue was discussed previously and found to be without merit.
III. WHETHER THE DIVORCE JUDGMENT BASED ON
HABITUAL, CRUEL AND INHUMAN TREATMENT IS VOID
DUE TO ANN SHAVERS'S FAILURE TO O FFER
CORROBORATING EVIDENCE.
¶34. In the “summary of the argument” portion of his brief, John briefly mentions that Ann
failed to meet her burden of proof with testimony of a corroborating witness and, therefore,
Ann should not have been granted a divorce on the ground of habitual cruel and inhuman
treatment. John again has failed specifically to identify the issue in his statement of the
issues. M.R.A.P. 28(a)(3). Further, John has failed to argue his position or cite authority on
this issues. Although this claim is abandoned, such a claim, if meritorious, would amount to
plain error. Therefore, we address it.
¶35. A chancellor may grant a divorce on the ground of "habitual, cruel and inhuman
treatment." Miss. Code Ann. § 93-5-1 (Rev. 2004). Mississippi case law requires that the
plaintiff prove this ground for divorce by a preponderance of the credible evidence. Cooper
v. Cooper, 518 So. 2d 664, 666 (Miss. 1988). The party alleging cruel and inhuman
treatment typically must corroborate the testimony. Gardner v. Gardner, 618 So. 2d 108, 114
(Miss. 1993); citing Chambers v. Chambers, 213 Miss. 71, 56 So. 2d 33 (1952).
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¶36. After two and one-half days of testimony regarding financial issues, the chancery
court recessed to allow John and Ann to discuss settlement. The parties and counsel then
returned, announcing a settlement agreement which resolved the financial issues and agreed
that Ann would receive a divorce from John based on habitual, cruel and inhuman treatment,
which John would not contest. “Mississippi rules require that '[i]n all uncontested divorce
cases, except irreconcilable differences, the testimony of the Plaintiff must be substantially
corroborated.’” Gardner, 618 So. 2d at 114 (quoting Miss. Unif. Chan. Ct. R. 8.03 (1990)).
¶37. The chancellor called for an understanding of all present that the divorce was being
settled on fault grounds, and indicated that if the parties brought him a no-fault judgment,
with the property settlement as agreed, he would sign it; otherwise, the chancellor said he
would enforce the judgment on the fault ground.
¶38. The transcript contains the following dialogue:
THE COURT: Very Well. Mrs. Shavers, do you tell me that there have
been problems, argum ents, fights, disputes,
disagreements and the like during the course of this
marriage that now convince you that you want the
marriage to be ended and over with. Is that true?
MRS. SHAVERS: Yes, sir.
THE COURT: Do you feel that if you stayed in the marriage that it
would be hazardous or injurious to your life, safety,
health and that's either physically or emotionally. Do
you feel that way?
MRS. SHAVERS: Yes, sir.
THE COURT: Do you now feel that it's in your best interest to be
divorced, finally?
MRS. SHAVERS: Yes, I do?
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THE COURT: All right. Okay. With that being said, I'm going to take
into consideration all of the previous testimony that I
have heard in the course of the trial including any and all
motions in the temporary hearing and based on that and
the facts contained therein, I do hereby grant the divorce
on the statutory grounds of habitual, Cruel and Inhuman
Treatment and that divorce is awarded to Wife.
The parties have reserved the right to present me an
Irreconcilable Differences Judgment and Property
Settlement Agreement and I will allow them to do that.
¶39. In order to establish the basis for divorce on the ground of habitual, cruel and inhuman
treatment, the claimant should produce evidence to prove conduct of the defendant that
“endangers life, limb, or health, or creates a reasonable apprehension of such danger,
rendering it impossible for that spouse to discharge the duties of the marriage, thus
destroying the basis for its continuance.” Gardner, 618 So. 2d at 113-14 (citation omitted).
There is no question that Ann established the basis for a divorce on the ground of habitual,
cruel and inhuman treatment through her own testimony. The question asked by John,
however, is whether her testimony was corroborated.
¶40. The transcript from the temporary hearing held June 22 and 23, 1999, reveals
testimony from both parties regarding physical altercations between John and Ann. Ann
testified that John "beat the crap" out of her. On cross-examination, John admitted to hitting
Ann with an open hand, although he disputed where and how hard he hit her. During the
cross-examination of John on this point, the chancellor stated: “Hang on just a second. I
really don't want to hear anymore of this. It's obviously been established that for whatever
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reason or whoever's fault, there has been established some measure of domestic violence that
took place. I don't need to hear anything else on that.”
¶41. The chancellor considered the testimony from the temporary hearing in rendering his
final judgment of divorce. It is clear from the transcript of that hearing that John
corroborated Ann's testimony. As the trier of fact, the chancellor must evaluate the
sufficiency of the proof based on the credibility of witnesses and the weight of their
testimony. Rainey v. Rainey, 205 So. 2d 514, 515 (Miss. 1967). The issue here was a factual
one and the chancellor's decision will not be disturbed since it was not manifestly wrong.
This Court will defer to his determination.
¶42. We find that Ann's testimony was corroborated and John's assignment of error is
without merit.
CONCLUSION
¶43. We dismiss the consolidated appeals numbers 2000-CA-01867-SCT and 2001-CA-
00164-SCT and affirm the final judgment of divorce for the reasons set forth above.
¶44. AS TO 2000-CA-01867-SCT AND 2001-CA-00164-SCT, APPEALS DISMISSED.
AS TO 2001-CA-01519-SCT, AFFIRMED.
WALLER AND DIAZ, P.JJ., EASLEY, CARLSON, GRAVES, AND
RANDOLPH, JJ., CONCUR. DICKINSON AND LAMAR, JJ., NOT
PARTICIPATING.
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