        IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                               NO. 2017-CP-00632-COA

MARY G. MONTGOMERY                                                        APPELLANT

v.

GLEN W. MONTGOMERY                                                          APPELLEE

DATE OF JUDGMENT:                         04/12/2017
TRIAL JUDGE:                              HON. D. NEIL HARRIS SR.
COURT FROM WHICH APPEALED:                JACKSON COUNTY CHANCERY COURT
ATTORNEY FOR APPELLANT:                   MARY G. MONTGOMERY (PRO SE)
ATTORNEY FOR APPELLEE:                    MARK V. KNIGHTEN
NATURE OF THE CASE:                       CIVIL - DOMESTIC RELATIONS
DISPOSITION:                              APPEAL DISMISSED - 03/05/2019
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       BEFORE J. WILSON, P.J., GREENLEE AND McCARTY, JJ.

       J. WILSON, P.J., FOR THE COURT:

¶1.    We dismiss the appeal in this divorce proceeding for lack of a final, appealable

judgment.

¶2.    In July 2016, Glen Montgomery filed a complaint for divorce from his wife, Mary

Montgomery. Glen alleged that he was entitled to a divorce on the grounds of habitual cruel

and inhuman treatment and desertion. Glen’s complaint requested an equitable division of

the marital estate and other relief. Mary filed a pro se, handwritten answer, and the case

proceeded to trial on April 12, 2017.

¶3.    The trial was bifurcated, and the court first took evidence on grounds for divorce.

After hearing testimony from Glen and a longtime friend of the couple, the judge ruled from
the bench that Glen was entitled to a divorce on the ground of habitual cruel and inhuman

treatment. The court then began taking evidence on the equitable division of the marital

estate,1 but that phase of the trial did not conclude on the first day. The judge told the parties

that the trial would resume on August 23, 2017.

¶4.    At the end of the first day of trial, the court entered a “Final Judgment on Divorce.”

The judgment stated that Glen had proven habitual cruel and inhuman treatment and was

granted a divorce on that ground. The judgment further stated that “[m]atters of equitable

division [would] be addressed in a later judgment.” Finally, the judgment stated: “This is

a final judgment on the grounds for divorce only. The [c]ourt hereby reserves jurisdiction

for issues of equitable division, alimony, and all other financial matters related to the

marriage.” On May 3, 2017, Mary filed a pro se “Motion to Appeal Judgment,” which was

construed as a notice of appeal.

¶5.    A fuller recitation of the facts of the case is unnecessary because we lack jurisdiction.

See Walters v. Walters, 956 So. 2d 1050, 1051 (¶2) (Miss. Ct. App. 2007). “Though the issue

has not been raised by the parties, this Court is required to note its own lack of jurisdiction.”

Id. at 1053 (¶8). “Generally, only final judgments are appealable.” Id. (quoting M.W.F. v.

D.D.F., 926 So. 2d 897, 899 (¶4) (Miss. 2006)). “A final, appealable, judgment is one that

‘adjudicates the merits of the controversy[,] . . . settles all issues as to all the parties[,]’ and

requires no further action by the lower court.” Id. (brackets omitted) (quoting Banks v. City

Finance Co., 825 So. 2d 642, 645 (¶9) (Miss. 2002)).



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           This case does not involve any issues of child custody or child support.

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¶6.    “A judgment granting a fault-based divorce is a non-final order if issues attendant to

the fault-based divorce, such as property division, remain before the lower court.” Id. at (¶9).

That is precisely the situation here. The chancery court’s judgment granting a divorce

expressly stated that the court reserved jurisdiction to divide the marital estate and resolve

all other financial matters related to the divorce. Therefore, the judgment granting a divorce

“was not a final judgment from which an appeal could be taken.” Id.; accord, e.g., M.W.F.

v. D.D.F., 926 So. 2d 897, 898-900 (¶¶3-6) (Miss. 2006) (holding that a “judgment of

divorce” granting a divorce was not final because it did not resolve issues of property

division, alimony, child custody, and child support); Ory v. Ory, 936 So. 2d 405, 408 (¶3) &

n.1 (Miss. Ct. App. 2006) (explaining that a “judgment of divorce” was not final because the

chancery court reserved the division of the marital assets for a later date). The judgment

granting a divorce was not final even though it was labeled as a “final” judgment. Walters,

956 So. 2d at 1052-54 (¶¶5-7, 9, 11-12) (holding that a “Final Judgment of Divorce” was not

a final, appealable judgment because the equitable division of the marital estate remained

pending before the chancery court). Whether a judgment is “final” is a matter of substance,

not form. See M.R.C.P. 54(b).

¶7.    Rule 54(b) of the Mississippi Rules of Civil Procedure provides one exception to the

rule that only final judgments are appealable. See Walters, 956 So. 2d at 1053 (¶10). Under

Rule 54(b), “the [trial] court may direct the entry of a final judgment as to one or more but

fewer than all of the claims or parties only upon an expressed determination that there is no

just reason for delay and upon an expressed direction for the entry of the judgment.”



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M.R.C.P. 54(b). However, the trial court’s “expressed determination that there is no just

reason for delay” must be stated “in a definite, unmistakable manner.” Id., advisory

committee notes.     In other words, the trial court must expressly “certify” that the

interlocutory ruling should be deemed final and “released for appeal.”            Jennings v.

McCelleis, 987 So. 2d 1041, 1043 (¶6) (Miss. Ct. App. 2008) (quoting Indiana Lumbermen’s

Mut. Ins. Co. v. Curtis Mathes Mfg. Co., 456 So. 2d 750, 753 (Miss. 1984)).

¶8.    In this case, the trial judge did not make such an express certification. Indeed, the

judge did not make any statement to the effect that there was “no just reason for delay” of

an appeal. M.R.C.P. 54(b). To the contrary, the judgment granting Glen a divorce expressly

stated that the equitable division of the marital estate would be “addressed . . . in a later

judgment.” The judgment further stated that the court reserved jurisdiction to address that

issue and all other financial matters. Moreover, the court even gave the parties a date for the

second day of trial. Therefore, Rule 54(b)’s exception to the final judgment rule does not

apply. See Walters, 956 So. 2d at 1052-54 (¶¶5-14) (holding that Rule 54(b) did not apply

in the absence of an expressed determination by the trial court that there was no just reason

for delay—even though the trial judge stated orally and in a written judgment that he

intended to allow an immediate appeal from a “Final Judgment of Divorce”).

¶9.    Because the chancery court has not entered a final, appealable judgment in this case,

this Court lacks jurisdiction, and this appeal must be dismissed.

¶10.   APPEAL DISMISSED.

    BARNES, C.J., CARLTON, P.J., GREENLEE, WESTBROOKS, TINDELL,
McDONALD, LAWRENCE AND McCARTY, JJ., CONCUR. C. WILSON, J., NOT

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PARTICIPATING.




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