Tony L. Smith and Linda N. Smith v. Coldwell Banker Graham & Associates, Inc., Cindy Lai, Mark S. Bounds Realty Partners, Inc., Donald Conn, Jr. and Wayne C. Williams – dismissal for lack of prosecution – In 2003, Tony and Linda Smith purchased a home in Rankin County from John Hendon. A few months later the home flooded. The Smiths filed a lawsuit Hendon, Union Planters Bank, First American Real Estate Solutions, Century 21, Cindy Smith, Coldwell
Banker, Lai, Mark S. Bounds Realty Partners Inc., Donald Conn Jr., and Wayne
C. Williams. The case was eventually dismissed for failure to prosecute and the Smith appealed. The COA affirms.
Harold E. Arrington v. Margie N. Arrington – delay between signing order and filing it – Harold and Margie agreed to an ID divorce and filed a joint complaint with a property settlement agreement attached. On May 15, 2012, the chancellor signed a final decree of divorce but it was not filed with the chancery clerk until June 3, 2014. In August 2013, Harold filed a withdrawal of his consent to divorce which the chancellor refused to consider since it was after the judge signed the order. The COA examines the rules and holds that a judgment is not final until it is filed. Furthermore, Harold did not need t o get leave of the court to withdraw his consent as he would have had to do if the parties had agreed to a divorce pursuant to MCA Sect. 93-5-2(3) which allows the parties to agree to the divorce but have other issues settled by the chancellor. That section states that “Such consent must be in writing, signed by both parties personally, must state that the parties voluntarily consent to permit the court to decide such issues, which shall be specifically set forth in such consent, and that the parties understand that the decision of the court shall be a binding and lawful judgment. Such consent may not be withdrawn by a party without leave of the court after the court has commenced any proceeding, including the hearing of any motion or other matter pertaining thereto . . . .”
However, this section applies only when the parties agree to an irreconcilable-differences divorce but are unable to agree upon adequate and sufficient
provisions for custody or property rights and consent to allow the court to decide these specific disputed issues. Here, the parties agreed to an irreconcilable-differences divorce and incorporated an agreed-upon property settlement. They did not invoke section 93-5-2(3), and there were no issues upon which the parties did not agree. We also find no authority to expand this restriction on the withdrawal of consent outside of section 93-5-2(3). We therefore find that the consent restriction in section 93-5-2(3) does not apply here. Harold was not required to obtain leave of court to withdraw his consent to the joint complaint for divorce.
Pro se PCR appeal affirmed: