Bailey v. Fischer
| Docket Number: | 2005-CA-00374-COA Linked Case(s): 2005-CT-00374-SCT ; 2005-CA-00374-COA |
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| Court of Appeals: |
Opinion Link Opinion Date: 05-30-2006 Opinion Author: Southwick, J. Holding: AFFIRMED |
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| Additional Case Information: |
Topic: Contempt - Compliance with M.R.C.P. 81 - Attachment of benefits Judge(s) Concurring: King, C.J., Lee and Myers, P.JJ., Irving, Chandler, Griffis, Barnes, Ishee and Roberts, JJ. Procedural History: Bench Trial Nature of the Case: CIVIL - DOMESTIC RELATIONS |
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| Trial Court: |
Date of Trial Judgment: 02-04-2005 Appealed from: Harrison County Chancery Court Judge: Sanford R. Steckler Disposition: FATHER HELD IN CONTEMPT FOR UNPAID CHILD SUPPORT; HE PAID AN AWARD OF SOCIAL SECURITY BENEFITS INTO COURT Case Number: 91,984 |
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| Party Name: | Attorney Name: | |||
| Appellant: | Kenneth Campbell Bailey |
BRENT M. BICKHAM |
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| Appellee: | Melissa A. (Bailey) Fischer | TIMOTHY LEE MURR |
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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 - Compliance with M.R.C.P. 81 - Attachment of benefits |
| Summary of the Facts: | Melissa Bailey and Kenneth Bailey were divorced in 1989. Melissa was given custody of the parties’ one child, and Kenneth was to pay child support. Several petitions for contempt have been filed by Melissa through the years. In 2002 she again sought to have Kenneth cited for contempt due to nonpayment of child support. The court found Kenneth to be in contempt, and a review of his compliance with the court orders was set for every four months. At a subsequent hearing, he was again found to be in contempt. Prior to the next hearing, Bailey received an award of U.S. Social Security benefits dating back to January 10, 2001. He immediately filed a motion to modify child support and to set aside all orders entered as of January 1, 2001. The chancellor entered his final judgment, confirming jurisdiction for the earlier orders, including the contempt citation for nonpayment of support. Kenneth appeals. |
| Summary of Opinion Analysis: | Issue 1: Compliance with M.R.C.P. 81 Kenneth argues that the chancellor did not have jurisdiction to hear the evidence that was used to prove his contempt. M.R.C.P. 81 mandates in certain actions, including proceedings for contempt, that special notice be served on a respondent for a hearing with a date, time and place specified. Kenneth does not contest that there was proper service of process for the initial hearing. Instead, he argues that once the hearing was rescheduled, the court lost jurisdiction because no new Rule 81 summons was given. The steps required under M.R.C.P. 81(d)(5) are: initial summons with date, time and place for hearing; if not heard at that time, a new date may be set by order entered by the chancellor on the initial hearing date, or court may by order or rule authorize the court clerk to set the rescheduled date and time. The initial hearing date was set in a Rule 81 summons, but the new dates and times were established by the Harrison County Chancery Court Administrator. Rule 81(d) (5) provides that the court’s clerk, i.e., the Harrison County Chancery Clerk, may be authorized to set the new date. There is no evidence in the record that the chancellor by order authorized the court administrator to make the rescheduling decisions, nor is there any properly approved local rule for the relevant chancery court district permitting this procedure. The day before the scheduled hearing, the now-complaining party, through counsel, arranged with opposing counsel for a delay. Without objection, the court administrator was the person with whom the parties discussed the change and is the official who sent the new notice. At the newly-scheduled hearing, this litigation was not reached due to the crowded docket. Both attorneys, again without objection, worked with the court administrator to negotiate a new date. At that agreed subsequent date, time and place, Bailey was found in contempt. Kenneth cannot complain of any lack of fairness arising from deviations from the strict procedure. In the case of Floyd v. Floyd, 870 So. 2d 677, 679 (Miss. Ct. App. 2004), the court stated that Rule 81 requires strict compliance. That conclusion is now withdrawn, and Floyd is overruled to the extent that it interpreted the case of Serton v. Serton, 819 So. 2d 15, 21 (Miss. Ct. App. 2002) to mean that a party’s appearance at the hearing does not constitute a waiver at least of some defects in the notice. Instead, all civil procedural rules are to be applied so as to secure the just, speedy, and inexpensive determination of every action as required by M.R.C.P. 1. Since Kenneth received a proper Rule 81 summons for the initial hearing, since the postponements of that hearing were at the initiation and agreement of his own counsel, and since he appeared at the hearing at which he was found in contempt despite his unimpaired opportunity for an aggressive defense, any defects in the issuance of the notice by the court administrator were waived. Issue 2: Attachment of benefits In an agreed judgment in 2003, Kenneth agreed to pay the award of back Social Security benefits into the registry of the chancery court upon receipt. When Kenneth was notified that he was awarded back benefits dating from January 10, 2001, he deposited $12,403.78 of SSDI benefits into the registry of court but did not so deposit SSI back benefits of $6,823.82. The court’s judgment required him to make restitution for not depositing the SSI back payment into the registry of the court. Kenneth argues that there is an anti-attachment provision that protects SSI benefits and which preempts Mississippi law. Even if Kenneth could not have been forced to use these benefits to satisfy his obligations to his child for support, he could agree to do so and have that agreement enforced. The chancellor did not commit error by enforcing the agreement of the parties. |
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