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Ory v. Ory12/13/2005
on to enter a consent judgment. The judgment was based on a consent agreement, but that consent agreement failed to meet certain procedural requirements because the terms were not read in open court and did not appear in the record. Id. at ( ). Based on the lack of those requirements, the supreme court found a lack of substantial, credible evidence and decided to "in effect 'wipe the slate clean and put the parties back where they were prior to trial.'" Id. (quoting Massingill v. Massingill, 594 So.2d 1173, 1177 (Miss. 1992)).
. Further, I would hold that the judgment of divorce is improper for yet another reason. A "judgment" is "a final decree and any order from which an appeal lies." M.R.C.P. 54(a). I would hold that this purported judgment of divorce is not a "judgment" within the meaning of the rule. According to the comment to M.R.C.P. 54, "there are several different stages that lead to the creation of a judgment that is final and appealable." Presumably, a judgment that does not meet the standards set forth in the comment to Rule 54 is not "final and appealable." If that judgment is not appealable, it is not final and it is improperly before this court. Reading further into the comment, " he first distinction is between the adjudication, either by a decision of the court . . . and the judgment that is entered thereon." Id. Applying M.R.C.P. 54 and the comment that follows it, a "decision" is a prerequisite to a "judgment." For lack of a judgment, there can be no appeal.
. I concede that the majority has reason for concern. Alan's tactics are disheartening. He obtained what appears to be a divorce judgment on the grounds he requested and now he attempts to return what he previously sought. It is not out of concern for Alan that I dissent. I dissent because certain procedural and statutory requirements transcend Alan's questionable tactics. Further, I am not concerned that Alan will be unjustly enriched. If his goal is to take another bite at the apple in hope of a more favorable property distribution, there is no reason to believe such will be the result. However, I dissent based on the requirements necessary for a valid judgment of divorce, regardless of Alan's well-being.
LEE, P.J., JOINS THIS SEPARATE WRITTEN OPINION.
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