Pulkinen v. Collum
| Docket Number: | 2010-CA-00421-COA | |
| Court of Appeals: |
Opinion Link Opinion Date: 08-30-2011 Opinion Author: Lee, C.J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Child custody - Service of process - Default judgment - M.R.C.P. 60(b) - M.R.C.P. 55(a) - M.R.C.P. 4 - M.R.C.P. 81 summons Judge(s) Concurring: Irving and Griffis, P.JJ., Myers, Barnes, Ishee, Roberts, Carlton, Maxwell and Russell, JJ. Procedural History: Bench Trial Nature of the Case: CIVIL - CUSTODY |
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| Trial Court: |
Date of Trial Judgment: 02-09-2010 Appealed from: Webster County Chancery Court Judge: Dorothy W. Colom Disposition: CUSTODY GRANTED TO APPELLEE; DENIED RULE 60(B) MOTION FOR RELIEF FROM THE JUDGMENT Case Number: 2006-0210-C |
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| Party Name: | Attorney Name: | |||
| Appellant: | In the Matter of T.E.C. a Minor: Christina Ann Pulkinen |
STEPHANIE L. MALLETTE |
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| Appellee: | Timothy Shane Collum | PRESTON DAVIS RIDEOUT JR. |
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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: | Child custody - Service of process - Default judgment - M.R.C.P. 60(b) - M.R.C.P. 55(a) - M.R.C.P. 4 - M.R.C.P. 81 summons |
| Summary of the Facts: | Timothy Collum sought custody of the son he shared with Christina Pulkinen. The couple was never married, but Collum is listed as the child’s father on the birth certificate. At the beginning of December 2006, Pulkinen took the child and returned to her home in Massachusetts. On December 22, 2006, Collum filed a complaint in the Webster County Chancery Court seeking to establish paternity and gain custody of the child. Later in December 2006, Collum and Pulkinen reunited, and Pulkinen returned to Mississippi with the child. Collum did not have a summons issued after filing the complaint. In July 2007, Collum and Pulkinen took the child to Massachusetts to visit family. On the way back to Mississippi, they stopped to spend the night in a hotel. During the night, Pulkinen left with the child and returned to Massachusetts. When Collum awoke and found them gone, he returned to Mississippi. On July 20, 2007, Pulkinen was granted a temporary, ex parte abuse-protection order against Collum in Massachusetts. Collum was served with a copy of this order in Mississippi. On July 25, 2007, Collum supplemented his December 2006 petition for custody and served Pulkinen with a Rule 81 summons. At the hearing, Pulkinen did not appear or file any responsive pleadings. Since she had failed to respond to the requests for admission, the chancellor deemed all of Collum’s requests admitted, including that all of the Albright factors weighed in his favor. The chancery court granted custody to Collum. Pulkinen appeals. |
| Summary of Opinion Analysis: | Pulkinen argues that the chancellor should have dismissed this case because Collum failed to have process served within 120 days of the initial filing of the complaint. Collum failed to have a summons issued after the initial complaint was filed. However, proper service was made on the complaint entitled “Supplement to Original Petition for Establishment of Paternity and Child Custody.” The reason for the delay was that Collum and Pulkinen had reunited and were attempting to work on their relationship. When their efforts to work out their relationship failed, Collum filed the supplemental petition. Pulkinen did not appear or object to the lack of service of process on the original complaint. After the final judgment was entered, Pulkinen raised the issue of lack of service of process in an M.R.C.P. 60(b) motion, and a hearing was held on the motion. M.R.C.P. 55(a) authorizes the court to enter a default judgment when a party has failed to plead or otherwise defend the allegations against him or her. A default judgment stands unless it is later deemed to have been void under M.R.C.P. 60(b)(4). While the better action would have been for Collum to file a new complaint, the chancellor did not err in finding the M.R.C.P. 4 issue without merit. Collum properly served process on the second complaint, and Pulkinen failed to respond. |
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