Floyd v. Floyd
| Docket Number: | 2002-CA-01107-COA | |
| Court of Appeals: |
Opinion Link Opinion Date: 04-13-2004 Opinion Author: Bridges, J. Holding: Reversed and Remanded |
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| Additional Case Information: |
Topic: Divorce - Notice - M.R.C.P. 81(d) Judge(s) Concurring: McMillin, C.J., King and Southwick, P.JJ., Thomas, Lee, Myers, Chandler and Griffis, JJ. Dissenting Author : Irving, J. Procedural History: Bench Trial Nature of the Case: CIVIL - DOMESTIC RELATIONS |
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| Trial Court: |
Date of Trial Judgment: 06-14-2002 Appealed from: Jackson County Chancery Court Judge: Jaye A. Bradley, Sr. Disposition: JUDGMENTS FOR DIVORCE AND CONTEMPT ENTERED IN FAVOR OF APPELLEE WITH QUESTIONABLE SERVICE ON APPELLANT. Case Number: 99-0510 |
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| Party Name: | Attorney Name: | |||
| Appellant: | Michael David Floyd |
JAMES B. WRIGHT |
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| Appellee: | Leah Marie Floyd | PRO SE |
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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 - Notice - M.R.C.P. 81(d) |
| Summary of the Facts: | Leah Floyd filed a complaint for divorce from Michael Floyd. The parties reached a verbal agreement regarding property settlement and Michael specifically answered that he understood and agreed to the settlement agreement. However, he never signed the divorce papers that were drafted as a result of those proceedings. Leah filed a motion for contempt regarding Michael’s failure to comply with an order for temporary relief. The court found Michael in contempt and sentenced him to thirty days and ordered him to pay $1,106 in child support arrearages and $990 in attorney’s fees. The court later entered a judgment for divorce incorporating the verbal agreement reached at the earlier hearing. Michael appeals. |
| Summary of Opinion Analysis: | Michael argues that the court erred in finding that he was given proper notice under M.R.C.P. 81. M.R.C.P. 81(d) enumerates certain matters which require thirty days’ notice and some which require seven days’ notice by summons to a specific time and place. The motion for contempt and the notice of the second hearing for the judgment of divorce are separate matters listed under Rule 81(d) and both require a proper Rule 81 summons. In the notice that was sent, the docket entries indicate that for both proceedings notice was issued of the court’s setting the motion for a date and time specific but it does not specifically mention that the notices were a Rule 81 summons. In Leah’s motion for contempt, her certificates of service provide that she mailed a copy of the motion to Michael’s attorney on September 6, 2000. This document also contains a “Notice of Motion” which does provide a time and place for the hearing, October 18, 2000, which would have been sufficient; however, it was not the date on which the hearing was eventually held. This hearing was held on January 3, 2001, and no item, either in the records or listed on the docket, reflects that anything was issued regarding the change, except the docket entry of notice on October 24, 2000. The motion for a second hearing to enforce the divorce agreement was filed by Leah on July 25, 2000, and its certificate of service stated that a copy was mailed to Michael’s attorney on that same day. This certificate of service did not contain a “Notice of Hearing,” giving the date and time of the hearing. Rule 81 requires strict compliance. The docket does not reflect that summons was issued for either of the hearings. Therefore, Leah did not strictly comply with the requirements of Rule 81 in her motions for contempt and motion to enforce their divorce agreement, and the judgment of divorce and the order of contempt are held to be void. |
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