Clark v. Clark
| Docket Number: | 2009-CA-00011-COA Linked Case(s): 2009-CA-00011-COA ; 2009-CT-00011-SCT |
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| Court of Appeals: |
Opinion Link Opinion Date: 01-19-2010 Opinion Author: Maxwell, J. Holding: Affirmed in part, reversed and remanded in part. |
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| Additional Case Information: |
Topic: Divorce - Summons - M.R.C.P. 81(d) - M.R.C.P. 4 - Void judgment - M.R.C.P. 60(b) - Temporary order Judge(s) Concurring: King, C.J., Lee and Myers, P.JJ., Irving, Barnes, Ishee, Roberts and Carlton, JJ. Judge(s) Concurring Separately: Griffis, J., specially concurs with separate written opinion joined by Lee, P.J., and Maxwell, J. Procedural History: Bench Trial Nature of the Case: CIVIL - DOMESTIC RELATIONS |
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| Trial Court: |
Date of Trial Judgment: 08-29-2008 Appealed from: Coahoma County Chancery Court Judge: William Willard Disposition: DENIED MOTION FOR RELIEF FROM JUDGMENT Case Number: 2008-125 |
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| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | WILLIE JAMES CLARK |
ROBERT D. EVANS |
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| Appellee: | AILEEN BROWN CLARK | CHERYL ANN WEBSTER | ||
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 - Summons - M.R.C.P. 81(d) - M.R.C.P. 4 - Void judgment - M.R.C.P. 60(b) - Temporary order |
| Summary of the Facts: | Willie Clark and Aileen Clark were granted a divorce. Prior to granting the divorce, the chancellor had entered a separate temporary support order. Aileen initiated both the divorce and temporary support actions by serving Willie with an M.R.C.P. 81 summons. Willie moved to set aside the judgment of divorce, arguing that he should have been served instead with an M.R.C.P. 4 summons. The chancellor denied Willie’s motion, and Willie appeals. |
| Summary of Opinion Analysis: | Issue 1: Summons Both the divorce summons and the separate summons for temporary support utilized the identical language and format found in Form 1D, located in Appendix A to the Mississippi Rules of Civil Procedure. Form 1D is the sample form for matters governed by M.R.C.P. 81(d). It is well settled that in divorce cases, M.R.C.P. 4 provides for the means of service of the original complaint and the form of the accompanying summons. Furthermore, in Rule 81 matters, a Rule 81 summons must be issued; otherwise, service is defective. Even if a defendant is aware of a suit, the failure to comply with rules for the service of process, coupled with the failure of the defendant voluntarily to appear, prevents a judgment from being entered against him. Use of the sample forms is not required, but their use is good practice because it removes any question of sufficiency of process under the Rules. Here, Willie was informed that a judgment would be entered against him if he failed to appear and defend, as is required by Rule 4(b). However, the summons contained substantial deviations from Rule 4. First, the Rule 81 summons stated: “You are not required to file an answer or other pleading but you may do so if you desire.” Second, the Rule 81 summons did not specify any deadline–specifically, that Willie was required to answer with a response to his wife’s attorney within thirty days. Third, the Rule 81 summons did not inform Willie that he was required to also file his answer with the chancery clerk within a reasonable time. A Rule 81 summons notifies a party of the time and place where he is to appear and defend, while a Rule 4 summons requires a written response within 30 days. Since the summons with which Willie was served in the divorce action contained substantial deviations from the requirements of Rule 4, and most notably did not provide that he was required to respond within thirty days, the particular Rule 81 summons did not meet the explicit requirements of Rule 4(b), nor did it substantially conform to Form 1A. Issue 2: Divorce Generally, default judgments are not permitted in divorce cases. However, 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. However, even if the allegations in the divorce complaint are established by the evidence, the chancellor must also have proper jurisdiction over the parties. Willie argues the judgment of divorce is void, and the chancellor erred in refusing to set it aside pursuant to M.R.C.P. 60(b). A judgment is void if the court that rendered it lacked jurisdiction of the subject matter, or of the parties, or if it acted in a manner inconsistent with due process of law. Here, the chancellor did not acquire personal jurisdiction over the defendant because service in a manner recognized by law was never achieved. Since the chancellor lacked personal jurisdiction over Willie, the divorce is void. When a divorce is invalidated, all matters decided as a result of the divorce decree are null and void and should be brought in another hearing. Thus, the chancellor’s judgment of divorce is void in its entirety, and all determinations therein–including the chancellor’s awards of alimony, child custody, and child support–must also be reversed. Issue 3: Temporary order Willie argues that the motion for temporary support was a derivative action of the divorce complaint, and, therefore, the court’s lack of jurisdiction over the divorce complaint extends to the motion for temporary relief. As Rule 81 makes clear, an action for temporary relief in divorce and an action for divorce are two separate matters. Each requires the issuance of a different form of summons–the former requiring a Rule 81 summons and the latter requiring a Rule 4 summons. Here, a separate Rule 81 summons was properly issued in Aileen’s action for temporary support, thus giving the chancellor jurisdiction to award temporary relief. |
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