Hanshaw v. Hanshaw


<- Return to Search Results


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

Court of Appeals: Opinion Link
Opinion Date: 12-15-2009
Opinion Author: GRIFFIS, J.
Holding: Appellant's motion for rehearing is granted. The prior opinion of this Court is withdrawn, and this opinion is substituted therefor. The judgment of the Lafayette County Chancery Court is reversed and rendered.

Additional Case Information: Topic: Contempt - Notice - M.R.C.P. 81(d)
Judge(s) Concurring: Lee and Myers, P.JJ., Barnes and Ishee, JJ.
Non Participating Judge(s): King, C.J., Roberts, Carlton and Maxwell, JJ.
Dissenting Author : Irving, J., with separate written opinion.
Procedural History: Motion for Rehearing
Nature of the Case: CIVIL - DOMESTIC RELATIONS

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

Note: This opinion was later reversed and remanded by the Supreme Court on 1/20/2011. See the Supreme Court opinion at: http://www.mssc.state.ms.us/Images/Opinions/CO68090.pdf

  Party Name: Attorney Name:  
Appellant: SHIRLEY ANN JAMES HANSHAW




RALPH STEWART GUERNSEY



 

Appellee: LARRY HANSHAW THOMAS HENRY FREELAND  

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.

Topic: Contempt - Notice - M.R.C.P. 81(d)

Summary of the Facts: The motion for rehearing is granted, and this opinion is substituted for the original opinion. When Shirley Hanshaw and Larry Hanshaw were divorced, the court also divided up the marital estate. Pursuant to the division, Shirley was ordered to vacate the marital residence so that it could be sold. When she failed to do so, she was cited for contempt of court and fined $12,000, which was paid to Larry from Shirley's proceeds from the sale. Shirley appeals.

Summary of Opinion Analysis: The first two issues raised by Shirley turn upon whether she received proper notice of the court's contempt action. Actions for contempt are governed by M.R.C.P. 81(d). Rule 81(d)(5) requires that upon the filing of an action for contempt, a summons be issued that commands the defendant to appear and defend at a specific time and place. Further, a Rule 81 summons must be personally served on the defendant. Here, the chancellor found that Shirley waived any objection to improper service when her attorney made an appearance at a later hearing on an unrelated motion for clarification. There was no contempt hearing held in this case. On October 4, 2004, attorneys for both parties met with the chancellor because of the concern that Shirley would not vacate the house in time for its scheduled sale. Thus, the chancellor issued an order on October 5th providing that Shirley could be held in contempt if the house was not vacated by 2:00 p.m. on October 6th. Shirley was never given an opportunity to present evidence on her behalf before a finding of contempt was made. There was no Rule 81 notice of a contempt hearing because there was no contempt hearing at all. While it is clear that the chancery court had continuing jurisdiction to enforce the judgment dividing the marital property, Shirley's fundamental right to due process afforded her the right to notice and the right to be heard on the action for contempt. Accordingly, the chancellor erred by finding that Shirley's general appearance at the hearing on a motion for clarification, which was held after the chancellor’s finding of contempt, waived any issue concerning the requirements of Rule 81 notice.


Home | Terms of Use | About the JDP | Feedback | Using JDP | MC Law Library | Mississippi Supreme Court