Hanshaw v. Hanshaw
| Docket Number: | 2005-CA-01680-COA Linked Case(s): 2005-CA-01680-COA ; 2005-CA-01680-COA ; 2005-CA-01680-COA ; 2005-CT-01680-SCT ; 2005-CT-01680-SCT ; 2005-CT-01680-SCT |
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| Court of Appeals: |
Opinion Date: 02-13-2007 Opinion Author: King, C.J. Holding: Reversed and Rendered |
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| Additional Case Information: |
Topic: Contempt - Due process - Failure to file motion - M.R.C.P. 7(b)(1) - Notice - M.R.C.P. 6(d) - M.R.C.P. 81 summons - Waiver of jurisdiction Judge(s) Concurring: Lee and Myers, P.JJ., Irving, Chandler, Griffis, Barnes and Ishee, JJ. Non Participating Judge(s): Roberts and Carlton, JJ. Procedural History: Bench Trial Nature of the Case: CIVIL - DOMESTIC RELATIONS |
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| Trial Court: |
Date of Trial Judgment: 07-29-2005 Appealed from: Lafayette County Chancery Court Judge: Edwin Hayes Roberts, Jr. Disposition: APPELLANT FOUND IN CONTEMPT OF COURT AND ORDERED TO PAY $500 PER HOUR FOR NON-COMPLIANCE WITH COURT ORDER, NOT TO EXCEED TWENTY-FOUR HOURS Case Number: 98-206R |
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| Note: | Opinion withdrawn and superceded by later hearing on motion for rehearing. http://www.mssc.state.ms.us/Images/Opinions/CO47738.pdf | |
| Party Name: | Attorney Name: | |||
| Appellant: | Shirley Ann James Hanshaw |
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| Appellee: | Larry Hanshaw |
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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: | Contempt - Due process - Failure to file motion - M.R.C.P. 7(b)(1) - Notice - M.R.C.P. 6(d) - M.R.C.P. 81 summons - Waiver of jurisdiction |
| Summary of the Facts: | Shirley Hanshaw was cited for contempt of court for her failure to comply with a court order requiring that she vacate the marital residence. She appeals. |
| Summary of Opinion Analysis: | Neither the record nor the certified copy of the docket entries indicates that a motion was ever filed seeking the relief granted in the order which is the basis of the contempt finding. M.R.C.P. 7(b)(1) provides that an application to the court for an order shall be by motion which, unless made during a hearing or trial, shall be made in writing, shall state with particularity the grounds therefor, and shall set forth the relief or order sought. In addition, Shirley was given no notice of the hearing held prior to entry of the order. M.R.C.P. 6(d) requires that a non-movant must be given a minimum of five days notice of a motion hearing. Contempt actions are triable seven days after service of a Rule 81 summons which must set out a specific time and place where the defendant is to appear. There is no indication on the case docket nor anywhere else in the record that a Rule 81 summons was ever issued to Shirley for a contempt hearing. Although the order states that it is undisputed that Shirley had not vacated the marital residence, complaints for contempt cannot be taken as confessed. The fact that Shirley’s attorney was present at the hearing is irrelevant to the issue of Shirley not receiving notice or a hearing before being held in contempt of court. The chancellor’s finding that Shirley waived her right to contest the court’s jurisdiction based upon lack of notice by making a general appearance is unsupported by the record. One week after the contempt order was filed, Shirley filed a Rule 59 motion arguing that she was never given notice of any hearing on the motion to cite her for contempt. Clearly, Shirley could not have waived her right to attack the notice requirement by filing a motion arguing that she never received notice. Thus, the chancellor’s order is reversed. |
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