Curtis v. Curtis
| Docket Number: | 2009-CA-01644-COA | |
| Court of Appeals: |
Opinion Link Opinion Date: 03-29-2011 Opinion Author: Maxwell, J. Holding: Affirmed in part, vacated in part. |
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| Additional Case Information: |
Topic: Divorce: Irreconcilable differences - Consent - Section 93-5-2(3) - Motion to reconsider - M.R.C.P. 59 - Division of marital property - Notice - M.R.C.P. 5 - Medical expenses - M.R.C.P. 81 Judge(s) Concurring: Lee, C.J., Irving, P.J., Myers, Barnes, Ishee and Roberts, JJ. Concur in Part, Concur in Result 1: Griffis, P.J. Without Separate Written Opinion Concurs in Result Only: Carlton, J. Procedural History: Bench Trial Nature of the Case: CIVIL - DOMESTIC RELATIONS |
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| Trial Court: |
Date of Trial Judgment: 11-03-2009 Appealed from: Harrison County Chancery Court Judge: Sanford R. Steckler Disposition: Entered Final Judgment Distributing Real Property Belonging to the Marital Estate and Awarding Wanda L. Curtis $1,474 for Past Due Medical Expenses of the Minor Child Case Number: C2401-02-00523(3) |
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| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | Henry E. Curtis |
SUZANNE BAKER STEELE |
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| Appellee: | Wanda L. Curtis | KELLY MICHAEL RAYBURN | ||
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: Irreconcilable differences - Consent - Section 93-5-2(3) - Motion to reconsider - M.R.C.P. 59 - Division of marital property - Notice - M.R.C.P. 5 - Medical expenses - M.R.C.P. 81 |
| Summary of the Facts: | Henry Curtis and Wanda Curtis separated in March 2002. Henry remained at the marital residence, while Wanda and their son moved to rented property. They consented to a judgment of divorce in April 2006, incorporating into the judgment a written property-settlement agreement. The property-settlement agreement disposed of all issues of child custody, child support, and ownership of personal property. But two pieces of real property, including the marital residence, had yet to be appraised. Through the settlement agreement, the parties authorized the chancellor to conduct a hearing, post-appraisal, to divide the equity in the real property. In October 2006, Wanda filed for contempt against Henry because he refused to allow an appraisal of the real property. An appraisal was eventually obtained, and the hearing to divide the property was finally set for October 1, 2008. In the interim, in January 2008, the Mississippi Supreme Court indefinitely suspended Henry’s attorney from practicing law. So in July 2008 the chancery clerk mailed the notice of the October 1 hearing directly to Henry at the marital residence, where Henry was still living. Henry did not appear at the hearing. Wanda testified about the value of the properties and her claims against Henry’s equity. The marital residence appraised for $65,000. The other property appraised for $44,000. Neither property had a lien, resulting in $109,000 in total equity or $54,500 in equity for each spouse. But Wanda had made the $20,000 down payment on the marital residence using her separate property, a personal-injury settlement. She also paid $30,950 in rent during the four years she and Henry were separated but not yet divorced, while Henry lived in the marital residence for free. Wanda also testified Henry had not paid his half ($1,474) of their son’s orthodontist’s bill. The chancellor credited Wanda the down-payment and rent—$50,950 total—against Henry’s half of the equity and awarded Wanda both pieces of property. He compensated Henry for his remaining $3,550 in equity by awarding him the mobile home on one of the pieces of property. He also separately awarded Wanda the $1,474 Henry allegedly owed on the unpaid orthodontist bill. A copy of the resulting November 5, 2008 judgment was mailed to Henry, who filed a petition to reconsider within ten days of entry of the judgment. The chancellor denied Henry’s petition, finding the mailed notice of hearing was sufficient to apprise Henry of the October 1 hearing and that service of the notice was complete upon mailing. Henry appeals. |
| Summary of Opinion Analysis: | Henry argues the 2006 divorce decree was invalid because there was no consent to adjudicate, as required by section 93-5-2(3). While the record contains a written consent by both parties to a judgment of divorce, incorporating a property-settlement agreement, Henry waived the issue of the sufficiency of this consent by not first presenting this issue at the trial level. The only argument Henry presented during the hearing on his petition to reconsider was that he lacked notice of the October 1 hearing. He did not contest the chancellor’s authority to distribute the real property based on the failure to comply with section 93-5-2(3). Henry also argues that the chancellor should have granted Henry’s petition for reconsideration and conducted a new hearing because he was not properly notified of the October 1 hearing. Because Henry filed his petition within ten days of the entry of the judgment, his petition for reconsideration is considered as a motion for new hearing under M.R.C.P. 59. To succeed on a Rule 59(e) motion, the movant must show an intervening change in controlling law, availability of new evidence not previously available, or need to correct a clear error of law or to prevent manifest injustice. Henry argues that the mailed notice was insufficient, because M.R.C.P. 5 notice is insufficient because thirty-months had passed between the 2006 judgment of divorce and the 2008 hearing; the chancery court failed to comply with Rule 5 because notice was not sent to Henry’s attorney; and Henry proved at the reconsideration hearing that he did not receive actual notice, rebutting the presumption of completed service. Once parties are initially served and the trial court gains personal jurisdiction over them, Rule 5 provides expedited procedures for serving subsequent pleadings, orders, and notices, including the notice of hearing mailed to Henry in July 2008. In contested matters that have yet to be resolved, Rule 5(b) notice is all that is required for setting a hearing in the process for reaching the final judgment. Both Henry and Wanda were aware of the impending hearing, having agreed in the property-settlement agreement to hold a hearing after the properties were appraised. Henry cannot rely on the amount of time that passed between the 2006 property-settlement agreement and 2008 hearing to support his argument Rule 5 notice was insufficient. The record indicates Henry was at least partially responsible for the delay in the appraisal and in dividing the property. Because Rule 5(b) requires notices be mailed to a party’s attorney, Henry argues the chancery clerk violated Rule 5 by mailing the notice to him instead of his suspended attorney. But under the circumstances, the opposite is true. Had the chancery clerk sent the notice to the attorney, the notice would not have been sufficient. Between the January 2008 suspension and July 2008, when the notice was sent, no other attorney appeared as Henry’s attorney of record. Therefore, the chancery clerk correctly mailed the notice of hearing directly to Henry. Rule 5 is explicit that service by mail is complete upon mailing, not receipt. And actual notice was neither required to satisfy Rule 5 nor necessary to comply with federal and state procedural due process requirements. The chancery clerk testified at the reconsideration hearing that she mailed the notice of hearing to Henry’s residence more than two months prior to the hearing. While Henry testified he was often away from home for long stretches driving his truck, he was afforded a sufficient window of time prior to the hearing to find the notice when he returned home between jobs. Although the hearing to determine the parties’ equities in the real property was proper, the chancellor’s permitting Wanda to present evidence of their child’s unpaid orthodontist bill and awarding Wanda $1,427 against Henry was not. The issue of Henry’s obligation toward his son’s medical expenses was not a contested matter yet to be resolved. Instead, Henry had agreed in the divorce judgment to pay Wanda half of the bill. At the October 1 hearing, Wanda was not presenting a claim or credit against the equity in the property but was instead attempting to enforce the divorce judgment requiring Henry to pay half the orthodontist bill. The medical-expenses issue required service under M.R.C.P. 81. A Rule 81 summons must contain a statement notifying a party of the time and place for the hearing, and that no answer is needed. Here, there was no statement that Henry was not required to respond in writing. Moreover, because there was no petition for contempt filed, there was no petition for contempt attached to the notice of hearing that would have notified Henry that Wanda was seeking a judgment for the unpaid bill. The chancellor should have granted Henry’s motion to reconsider on this issue. |
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