Price v. McBeath


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Docket Number: 2007-CA-00880-COA

Court of Appeals: Opinion Link
Opinion Date: 08-19-2008
Opinion Author: Roberts, J.
Holding: Affirmed

Additional Case Information: Topic: Child custody - Service of process - M.R.C.P. 4(d)(1)(A) - M.R.C.P. 12 - M.R.C.P. 59(e) - M.R.C.P. 60(b)(4) - Waiver - M.R.C.P. 81(d)(2)
Judge(s) Concurring: King, C.J., Lee and Myers, P.JJ., Irving, Chandler, Griffis, Barnes, and Ishee, JJ.
Judge(s) Concurring Separately: Carlton, J., specially concurs with separate opinion, joined by Lee, P.J., and Griffis, J., and joined in part by Ishee, J.
Procedural History: Bench Trial
Nature of the Case: CIVIL - CUSTODY

Trial Court: Date of Trial Judgment: 04-18-2007
Appealed from: Harrison County Chancery Court
Judge: Margaret Alfonso
Disposition: CHANCELLOR AWARDED PARAMOUNT PHYSICAL CARE, CUSTODY, AND CONTROL TO THE APPELLEE.
Case Number: C2402-04-00990(2)

  Party Name: Attorney Name:   Brief(s) Available:
Appellant: CANDACE D. PRICE




DARNELL L. NICOVICH



 
  • Appellant #1 Brief

  • Appellee: JASON LAGARRET MCBEATH, JR. LOWE ARTHUR HEWITT  

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    Topic: Child custody - Service of process - M.R.C.P. 4(d)(1)(A) - M.R.C.P. 12 - M.R.C.P. 59(e) - M.R.C.P. 60(b)(4) - Waiver - M.R.C.P. 81(d)(2)

    Summary of the Facts: Jason McBeath, Jr., and Candace Price had a child, Jason McBeath. Candace enlisted in the United States Army, and while she was in basic training, Jason petitioned for custody of Jay. The chancery court conducted a hearing on Jason’s petition at which Candace did not appear. Ultimately, the chancellor awarded Jason custody of Jay. Subsequently, Candace filed a motion to reconsider or, alternatively, a motion to set aside the judgment in which she claimed Jason did not properly serve her with process. Candace also requested that the chancellor sanction Jason. The chancellor entered a temporary order returning Jay to Candace’s custody. The chancellor later entered a final judgment, awarding Jason custody of Jay. Candace appeals.

    Summary of Opinion Analysis: Issue 1: Service of process Candace argues that the chancery court did not have jurisdiction to award Jason custody of Jay, because she was never personally served with process. Pursuant to M.R.C.P. 4(d)(1)(A), one way to accomplish service of process upon a resident individual other than an unmarried infant or a mentally incompetent person is by personally delivering a copy of the summons and complaint to the person. Jason filed his petition for custody on October 26, 2004. Summonses pursuant to M.R.C.P. 4 and 81 were issued on December 28, 2004. The same day, professional process server Singleton personally served someone at the address listed on the summons. Singleton filed the returns the next day. On one line, Singleton indicated that she personally served “Candace D. Price.” On a separate line, Singleton indicated that she personally served “Candace Donella Price.” Candace claims Singleton did not serve her. There are three reasons to suspect whether Singleton actually served Candace. Candace, who was on leave from the Army, returned to her post prior to December 28, 2004. Second, on one blank line in the return, Singleton listed the name of the person she served as “Candace Donella Price.” Candace’s middle initial is “D,” but her middle name is not Donella. However, Candace’s sister’s name is Donella. Finally, in Jason’s petition for custody of Jay, Jason listed Candace’s street address as Bayview Avenue. Singleton claimed she served Candace at Benachi Avenue. Candace did not live at Benachi Avenue, but her sister, Donella, did. However, whether Singleton actually served Candace is not the outcome determinative question that resolves this issue. A trial court can acquire jurisdiction over the person through his appearance. Whether a person may attack jurisdiction on appeal depends entirely upon when the objection is raised. Candace, who was represented by counsel at the time, did not file a motion to dismiss pursuant to M.R.C.P. 12. Candace filed a motion to reconsider which is governed by M.R.C.P. 59(e). Candace also filed a motion to set aside the chancellor’s judgment. Pursuant to M.R.C.P. 60(b)(4), a motion to set aside a judgment may be made on the basis that a judgment is void. It could be said that Candace preserved the jurisdictional question through her motion to set aside the judgment. However, Candace also requested sanctions. Precedent dictates that a party may raise a jurisdictional question simultaneously with other pleadings. Candace waived this issue. She did not advance the issue or timely seek resolution of it. Candace did not request a ruling on her motions during the two years that preceded the final hearing. In addition, she did not seek a ruling on the jurisdictional question at the hearing and then proceeded to represent herself. Candace also notes that pursuant to M.R.C.P. 81(d)(2), Jason should have provided her with thirty days notice in advance of the hearing. Notwithstanding Candace’s claim that she never received service of process, Candace submits that the notice in the summons violated her right to due process. Any defect regarding notice of the hearing was waived when Candace failed to raise it before the chancellor. Issue 2: Custody Candace argues that the chancellor erred when she awarded Jason custody of Jay. It is possible that there was not substantial evidence for the chancellor’s conclusion that the factor “stability of home and employment of each parent” favored placing Jay in Jason’s custody. A reasonable fact-finder could conclude that Candace should have custody of Jay. However, determining custody of a child is not an exact science. The fact remains that there was substantial evidence for the chancellor’s decision.


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