IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO. 2015-CA-00335-COA WESLEY GENE PATRICK APPELLANT

v. CATHERINE ANN PATRICK APPELLEE DATE OF JUDGMENT: 01/22/2015 TRIAL JUDGE: HON. PERCY L. LYNCHARD JR. COURT FROM W HICH APPEALED: DESOTO COUNTY CHANCERY COURT ATTORNEY FOR APPELLANT: BYRON RUSSELL MOBLEY ATTORNEY FOR APPELLEE: CATHERINE ANN PATRICK (PRO SE) NATURE OF THE CASE: CIVIL - DOMESTIC RELATIONS TRIAL COURT DISPOSITION: GRANTED DIVORCE ON GROUND OF ADULTERY, DIVIDED THE MARITAL ESTATE, AND ORDERED APPELLANT TO PAY ALL GUARDIAN AD LITEM FEES AND APPELLEE’S ATTORNEY’S FEES DISPOSITION: AFFIRMED - 04/05/2016 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE IRVING, P.J., FAIR AND WILSON, JJ. WILSON, J., FOR THE COURT: ¶1. In t his divorce proceeding, W esley Patrick appeals the d ivision of t he m a rital estate, the award of attorney ’s f

ees to his e x-wif

e, Catherine P atrick, and the court’s order requiring
him to p ay all f

ees o f the guardian ad litem w ho was appointed to investigate his allegations that Catherine had n e glected or abused their chil d

. We s l e y r equests that we reverse and

rem and on all three i s s u e s . Although C atherine f ailed to f ile a brief on appeal, we af f irm because the record shows that W esley consented t o t he term s of the divorce decree that he seeks to challenges o n appeal. By his consent, W esley waived the right to l itigate the m eritsof

those issues on appeal. Theref ore, we af f irm despite Catherine’s f

ailure to f i le a brief

. FACTS AND PROCEDURAL HISTORY ¶2. W e sley and C atherine were m arried in June 2 009. They have one c hild, a daughter, who was born in March 2011. In April 2012, they s eparated, and W esley f iled f or divorce on the grounds of

adultery and cruel and inhum an treatm e nt. Catherine’s answer adm itted that she had com m itted adulte r y b u t pled condonation. Catherine also counterclaim ed f or divorce on the ground of

cruel and inhum an treatm ent. W esley and Catherine both sought legal and phy sical custody of their daughter. ¶3. At a May 1 6, 2012 hearing, W esley a pparently alleged that Catherine had neglected

or abused their daughter, although that hearing was not transcribed f or the record on appeal. The chancellor ref

erred the allegations to the Departm ent of Hum an Services (“DHS”) to investigate and appoint e d a g u a r d i an ad litem (“GAL”) f or the child. 1 The order directed
DHS to provide its f

indings to the court f

or in cam era r eview, but the r ecord o n appeal does

not ref lect whether that occurred or what DHS f o und. T he order provided “ t hat initially the
f ees and expenses of

the [ GAL would] be paid by [ W esley ]” and that a f i nal assessm ent of
GAL f ees, attorney ’ s f

ees, a nd expense s w o u l d be m ade af ter the conclusion of the investigation by DHS and the GAL. The chancellor also entered a t e mp orary custody and visitation order granting W esley liberal visitation.

1 See Miss. Code Ann. § 93-5-23 (Rev. 2 013) (“when a charge of a b use and/or neglect arises in the course of a custody action

. . . the court shall appoint a g uardian ad litem ”). A t th e f in al h earin g o n th e m erits, th e G A L testif ied th at sh e w a s “ap p o i n ted

. . . to in v estig ate th e p h y sical n eg lect o f [ th e ch i ld ]

. ” T h e G A L stated t h a t Wesley h ad alleg ed “th at th e ch ild h ad co n tin u o u s d iap er rash ” an d th at C ath erin e w as n o t f eed in g h er. 2¶4. T h e c a s e was tried i n August 2014. Catherine adm itted that s he had commi t t e d

adultery and that i t was not condoned, so W esley was g ranted a divorce on that ground. At the conclusion of the trial, the chancellor announced his r uling f rom th e b e n c h a nd subsequently entered a f

inal decree of d ivorce. In the decree, the chancellor f ound by clear and convincing evidence that, f or a num b er of r easons, both W esley a nd C atherine were unf it

to have c ustody of their child. T he chancellor t heref ore concluded that it was in the child’s best interest to grant custody to DHS, and the child was placed with a f o ster f am ily

. ¶5. The chancellor f

ound that the m arital hom e had a value o f approxim ately $98,000 and

was subject to a m ortgage w ith a balance of approxim ately $90,000. T he chancellor awarded
W e sley possession and ownership of the hom e, assigned him responsibility f or the m ortgage, and directed him to pay Catherine $6,000 f or her interest in the hom e . T he c ourt also granted
W e sley possession and ownership of two ten-y ear-old vehicles, which he f ound had “little equity or value,” and assigned him responsibility

f or the associated debt. ¶6. The chancellor also awarded Catherine $12,910.04 in attorney ’ s f ees. T h e chancellor
f ound that W esl e y s h o u l d pay these f ees b ecause Catherine was unable to p ay them and because t hey were incurred in part as a result of W e sley ’s “allegations of neglect f or which there [ was] no f

oundation laid o r proven.” The chancellor noted that Catherine had borrowed the m oney to pay her attorney “f rom her p arents and f

rom others.” Finally , t h e c hancellor ordered W esley to pay the rem aining balance of the GAL’s f ees of $1,441 2 b ecause there was “no substantiation of neglect as to the allegations of neglect or the deprivation of f ood.”

2 Wesley h ad alread y

p aid $ 1 ,5 0 0 to th e G A L

.

3¶7. W e sley f i led a tim ely m otion f

or r econsideration 3 in which he asserted t hat the court’s ruling “was not in t he best interest of the m i n o r c hild and the property division was not equitable.” C atherine also f i led a m otion f

or reconsideration, although her m otion identif ied

no specif ic grounds f

or relief and appears to have been untim ely

. I n addition, in Novem ber 2014, the child’s paternal grandm other m oved to intervene to seek custody or visitation. ¶8. On January

22, 2015, the chancellor entered a “Consent Order on Modif ication and Reconsideration of Original Decree of Divorce.” T he or d e r stated that there had been a hearing o n the parties’ respective m otions f or reconsideration, 4 that the p arties s u bsequently

m et and conf

erred, and that, “with the assistance of the [ GAL], the parties ha[ d] r eached an
agreem ent which t hey [ s o ught] to have approved by the [ c]ourt.” The order recited that DHS had provided W esley and Catherine with a plan and requirem ents f or regaining custody

of their c hild and that W esley a nd C atherine h ad “m et all objectives as set f o rth b y [ DHS] and ha[ d] r ehabilitated them selves a s to the [ chancello r ’ s] d eterm ination that they were unf it.” The order f

urther stated that W esley , Catherine, and the GAL all a g reed t hat i t would be in the child’s best interest f

or W esley and Catherine to have joint legal and phy sical custody

. Thus, the order granted joint legal and phy s i cal custody to W esley and Catherine, set out a custody s chedule, and a ddressed child support and related m atters. F i nally , the order

3 “[ A ] ‘m o t io n f

o r r e c o n s i d e ratio n ’ i s t reated as a m o tio n to alter o r am en d th e j u d g m en t u n d er R u le 5 9 (e).” C h a se v. S ta te , 1 7 1 S o . 3 d 4 6 3 , 4 8 7 (¶7 5 ) (M i ss. 2 0 1 5 ) (citin g B r o o ks v. R o b e rts , 8 8 2 S o . 2 d 2 2 9 , 2 3 3 (¶1 5 ) (M iss. 2 0 0 4 )). “A m o tio n to alter o r am en d th e j u d g m en t s h all b e f

iled n o t later th an ten d a y s af ter en try o f t h e j u d g m en t.” M .R

. C .P

. 5 9 (e).

4 T h e reco rd d o es n o t in clu d e a tran scrip t o f a h e a r in g o n th e p arties’ m o tio n s f o r reco n sid eratio n o r

a tran scrip t

o f th e h earin g o n th e co n s en t o rd er, if o n e w as h eld

. 4provided “[ t ]hat all other m atters contained in the original decree of divorce are conf irm ed and shall r e ma i n in f

ull f o rce and ef

f ect.” W esley , Catherine, the grandm other, their attorney s, and the GAL all signed the order as “APPROVED AS T O CONTENT AND AS TO FORM.” DHS signed the order as “APPROVED AS TO FORM.” ¶9. Af ter t h e c o n s e n t o r d e r w a s entered, there was no f urther action on the parties’ respective m otions f

or reconsideration. The next docket entry is W esley ’s notice of appeal, which he f

iled on February 20, 2 015. On appeal, W esley argues that the chancellor erred by ( 1 ) f a i ling to m ake f

indings to support his distribution of the m arital estate and awarding Catheri n e s e venty -f

ive percent of the equity in the m arital hom e; (2) awarding C atherine attorney ’s f

ees; a nd (3) ordering him to pay all f ees of t he G AL. Cather i n e f a i l e d to f ile a brief on appeal. The attorney who represented Catherine at trial inf orm ed this Court that the chancery court had specif

ically authorized her to withdraw and that she no longer represented Catherine. She s tated that she had f orwarded Catherine docum ents r egarding the a ppeal and had advised he r t hat she should attend to the appeal herself or h ire new counsel. Subsequently , a show-cause notice was s ent to C atherine. However, Catherine s till f ailed to f ile a brief

. DISCUSSION ¶10. W h en the appellee f ails to f ile a brief , this C ourt h as two options. First, we m ay take the appel l e e ’ s f a i l u r e to f ile a brief as a c onf

ession of erro r a n d r e v e r s e . This option is f avored when the record is com

p licated or of large volum e a n d t he case has been thoroughly brief ed by the appellant with apt and applicable c itation of authority so that the brief ma k e s o u t a n a

pparent case of error. However, if the record can be conveniently exam ined a nd s uc h e x a m ination reveals a sound and

5unm istakable basis o r ground upon which the judgm e nt m ay be saf ely af f irm e d, we m ay

disregard the appellee’s error and af f irm

. Jay Foster PLLC v. McNair , 1 7 5 S o . 3d 565, 571 (¶15) (Miss. Ct. App. 2015) (quoting Archie v. City of Canton , 92 So. 3d 1279, 1282 (¶10) (Miss. Ct. App. 2012)). ¶11. In this case,“the record can be conveniently exam ined and s uch exam i nation reveals” that W esley consented to the s ubstance of the divorce decree f rom which h e appeals. W hile
W e sley ’ s conse n t does not deprive us of appellate jurisdiction, i t does def eat W esley ’s
argum ents o n t h e me r its. W esley ’s consent i s “a sound and unm istakable b asis or ground
upon w hich the j udgm ent ma y be saf ely af f irm ed,” id. , so we af

f irm notwithstanding Catherine’s f

ailure to f i le a brief

. ¶12. “A party g e n e r a l l y m ay not appeal a judgm ent entered by c onsent or conf ession[ .]” Luther T. Munf

o r d, M ississippi Appellate Practice § 6.2, at 6-12 (2007); accord Sanghi v. Sanghi , 759 So. 2 d 1250, 1255 (¶2 2 ) ( M i s s . Ct. App. 2000). As this Court explained in Sanghi , the gen e r a l r u l e that a party m ay not appeal a c onsent judgm ent is not a rule of appellate jurisdiction. See Sanghi , 759 So. 2d at 1255 (¶2 2 )

. R a t h e r , it i s a rule about the
merits of i ssues raised i n an appeal f rom a consent judgm e nt by a party who consented to the judgm ent. See id. ; P eebles v. P e ebles , 153 So. 3 d 728, 731-32 (¶13) (Miss. Ct. App. 2014). The only issues that are viable in such an app e a l a re “issues

. . . akin t o those under [ Mississippi Rule of Civil Procedure] 60(b)—claim s such a s f r aud, m isre p resentation, accident, or m istake.” Peebles , 153 So. 3d at 731-32 ( ¶13) (citing Rushing v. Rushing , 724
So. 2d 911, 915-16 (¶¶19-20) (Miss. 1998)). A party to a consent judgm ent m ay not seek “to litigate that which is already settled” by consent. Id. at 732 (¶13) (quoting Rushing, 724 So.

62d at 915-16 (¶¶19-20)). 5

¶13. In t he present c ase, although the consent order m odif y ing the parties’ divorce decree
f ocused prim arily on t he issue of c hild custody , the order expressly provided “[ t]hat all other

ma t t e r s c o ntained i n the original decree of divorce are conf irm ed and shall rem ain in f ull
f orce a n d ef

f ect.” The “original decree,” of course, covered the v ery issues—property division, attorney ’ s f

e es, and GAL f

ees—that W esley now raises on appeal. F urther, W esley and h is attorney signed the consent order as “APPROVED AS TO CONTENT AND AS TO
FORM.” In contrast, o n the sam e page of the order, DHS approved “AS TO F ORM” only

. The n ature of W esley ’s approval of the consent order also dif f ered f rom the original divorce decree, which his a t t o r n e y “APPROVED AS T O FORM and Not a s to Content.” Given these dif f e rences, it is evident that W e sley approved and consented to both the f orm of the

consent order and its substance

. The substance of the order m ade c l ear t hat all other term s of t he original d ivorce d ecree—including the term s that W e sley now challenges on appeal—were “conf

irm ed” and would “rem ain in f ull f orce and ef

f ect.” If W esley wanted to preserve his ability

to challenge any part of

the decree on appeal, he could have insisted that t he cons e n t o r d er include an express reservation of a right to appeal. Absent such a reservation, however, we can only conclude that the p arties consented to “all other m atters

5 T h is is co n sisten t w ith f

ed eral p ractice. S

ee C h arles A lan Wrig h t et al., 1 5 A F ed era l P r a ctice a n d

P ro c ed u r e: Ju risd ictio n a n d

R ela ted M a t ters § 3 9 0 2 (2 d e d

. 1 9 9 1 ) (“P arties w h o h av e co n sen ted to en t ry o f a j u d g m en t at tim es a re said t o l ack stan d in g to ap p eal, an d o ccasio n ally ap p e a l s f

ro m co n sen t j u d g m en ts are s im p ly d i sm issed

. T h e tru e p rin cip le at w o rk , h o w ev er, i s o n e o f w a i v e r o r co n sen t; th e ap p ro p riate d isp o sitio n , if th e ap p eal rep resen ts n o m o r e th an a retro activ e a ttem p t t o u n d o co n sen t p ro p erly g iv en , is af f irm an ce rath er th an d ism issal.” (f

o o t n o tes o m itted )). 7contained in the original decree of divorce.” ¶14. In addition, af

ter the consent order was entered, W esley did not pursue a ruling—and the chancellor did not rule—on his m otion f or reconsideration. As noted a bove, W esley ’s

m otion f or r econsideration s pecif

ically challenged the division of p roperty in the original divorce decree. If the consent order was n ot intended to resolve that issue by consent, then there s hould have been som e f urther action on W e sley ’s m otio n

— a r u l i n g, a request f o r a ruling, or perhaps a withdrawal o f the m otion. That no f urther action was taken also supports

our conclusion that the c onsent ord e r m eant just w hat it said: that, by the consent of the parties, “all other m atters c ontained in the original decree of divorce [ w e r e] conf irm ed and [ would] rem ain in f

ull f orce and ef

f ect.” ¶15. Because W esley consented to the f orm and substance of the judgm ent e ntered in the chancery court, he is precluded f rom seeking to litigate on appeal the m erits of the issues that judgm ent covers. That is all that W esley ’s appeal seeks t o do. He m akes n o claim that the

consent judgm ent was entered as a result o f f raud, m ist a ke, or accident. R ather, W esley sim ply argues that the chancellor erred on the m erits with respect to t he division of property , the award of a ttorney ’s f

ees, and the assessm ent of GAL f ees. The original d ivorce decree

r e s o l v e d these m atters and, by c onsent of the parties , those term s o f the decree have bee n “conf irm ed and

. . . rem ain i n f ull f orce and ef

f ect.” Accordingly , W esley ’s argum ents on appeal f a il because a party to a consent judgm ent m ay not use an appeal t o seek “ to litigate that which is already s ettled” by consent. Peebles , 153 So. 3 d at 7 32 (¶13) (quoting Rushing , 724 So. 2d at 916 (¶22)).

8CONCLUSION

¶16. By agreeing to t he substance of the c o n s e n t o r d e r modif y ing the o riginal divorce decree, We s l e y consented to the term s of the decree that divided the m arital property , awarded attorney ’ s f

ees, and assessed GAL f ees. By consenting to those t erm s, W esley waived t he r ight to argue on appeal that the chancellor erred in dividing the m a r ital property , awarding attorney ’s f

ees, or assessing GAL f

ees. Accordingly , we af

f irm

. ¶17. T H E JUDGMENT OF T HE DESOTO COUNTY C H A N C E R Y C O U R T I S A F FIRMED. ALL COSTS OF THIS A P PEAL ARE ASSESSED TO TH E APPELLANT.
L E E , C . J . , I R

V I N G A N D G R I F F I S , P . JJ., B A R NES, ISHEE, CARLT O N , F A I R , JAMES AND GREENLEE, JJ., CONCUR.

9