Brown v. Brown
| Docket Number: | 2003-CA-00039-COA | |
| Court of Appeals: |
Opinion Link Opinion Date: 05-11-2004 Opinion Author: Irving, J. Holding: Reversed and remanded |
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| Additional Case Information: |
Topic: Divorce: Adultery - Notice of trial - M.R.C.P. 40(b) Judge(s) Concurring: King, C.J., Bridges and Southwick, P.JJ., Thomas, Lee, Myers, Chandler and Griffis, JJ. Procedural History: Bench Trial Nature of the Case: CIVIL - DOMESTIC RELATIONS |
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| Trial Court: |
Date of Trial Judgment: 12-06-2002 Appealed from: Lowndes County Chancery Court Judge: Dorothy W. Colom Disposition: OWEN BROWN’S MOTION TO SET ASIDE JUDGMENT OF DIVORCE DISMISSED. Case Number: 2001-0689 |
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| Party Name: | Attorney Name: | |||
| Appellant: | Owen Brown |
DAVID S. VAN EVERY |
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| Appellee: | Kay Brown | CARRIE A. JOURDAN |
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Synopsis provided by:  If you are interested in subscribing to the weekly synopses of all Mississippi Supreme Court and Court of Appeals hand downs please contact Tammy Upton in the MLI Press office. |
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| Topic: | Divorce: Adultery - Notice of trial - M.R.C.P. 40(b) |
| Summary of the Facts: | Kay Brown filed a complaint for divorce against Owen Brown seeking a divorce on grounds of adultery, or alternatively, irreconcilable differences. The chancellor granted the divorce on the grounds of adultery and also awarded other relief. Owen appeals. |
| Summary of Opinion Analysis: | Owen argues that the chancellor abused her discretion in failing to set aside the judgment of divorce against him since he had personally appeared in court on temporary matters and subsequently received no notice of the trial on the merits. A special kind of default judgment may be given in uncontested actions for divorce so long as the proceeding is heard in open court and the claimant establishes his claim or right to relief by evidence. Because of the special nature of a divorce proceeding, a defendant is not barred from defending the action upon failure to answer the complaint. Therefore, the fact that Owen did not file an answer is not determinative of whether the chancellor erred in failing to grant his motion to set aside the judgment of divorce. Since Owen had appeared in the case at the hearing on temporary matters, and a date for the hearing on the merits of the divorce complaint had not been set when he appeared, he was entitled to notice of the date of the subsequent trial setting. M.R.C.P. 40(b) has some limited applicability since it requires that notice be given after a case has been placed on the trial docket or set for trial. The case is remanded for a new hearing on the merits whereby Owen is given sufficient notice of the proceeding. |
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