Turner v. Turner


<- Return to Search Results


Docket Number: 2010-CA-00375-COA

Court of Appeals: Opinion Link
Opinion Date: 11-01-2011
Opinion Author: Maxwell, J.
Holding: Reversed and remanded

Additional Case Information: Topic: Divorce: Habitual drunkenness - Failure to provide notice - M.R.C.P. 5 - Void judgment - M.R.C.P. 60(b) - Service on attorney - Due process - Withdrawal of attorney
Judge(s) Concurring: Lee, C.J.
Non Participating Judge(s): Myers and Roberts, JJ.
Dissenting Author : Griffis, P.J.
Dissent Joined By : Ishee and Carlton, JJ.
Concur in Part, Concur in Result 1: Russell, J.
Concur in Part, Concur in Result Joined By 1: Irving, P.J.
Concurs in Result Only: Barnes, J., concurs in result only without separate written opinion.
Procedural History: Bench Trial
Nature of the Case: CIVIL - DOMESTIC RELATIONS

Trial Court: Date of Trial Judgment: 12-08-2009
Appealed from: Lee County Chancery Court
Judge: Talmadge Littlejohn
Disposition: FINAL DECREE OF DIVORCE BASED ON HABITUAL DRUNKENNESS, PHYSICAL CUSTODY OF THE CHILD TO THE APPELLEE, AND DIVISION OF MARITAL ESTATE
Case Number: 05-0359-41-L

  Party Name: Attorney Name:   Brief(s) Available:
Appellant: Michael Turner




RICHARD SHANE MCLAUGHLIN, NICOLE H. MCLAUGHLIN



 
  • Appellant #1 Brief

  • Appellee: Jane Turner JONATHAN W. MARTIN  

    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: Divorce: Habitual drunkenness - Failure to provide notice - M.R.C.P. 5 - Void judgment - M.R.C.P. 60(b) - Service on attorney - Due process - Withdrawal of attorney

    Summary of the Facts: In 2005, Jane and Michael Turner began protracted divorce proceedings, which included a dispute over the custody and visitation of their son. In March 2007, Michael filed a motion for contempt, alleging Jane had not permitted him to exercise the visitation agreed to in a temporary order. In early 2009, the chancery court issued a series of orders setting the divorce for trial. The last order, which was filed on September 8, 2009, set the hearing for November 12, 2009. According to Michael, he appeared at the courthouse on the morning of November 12 but did not, at first, see his attorney. Eventually, from the back of the courtroom, Michael saw his attorney at the bench talking to the chancellor and Jane’s counsel. There is no transcript of this bench conference. But evidently from the chancellor’s resulting order, the attorney made an oral motion to withdraw as counsel for Michael. There is no indication that Michael received five days’ notice, to which he was entitled under M.R.C.P. 6(d), before a hearing on a motion to withdraw may be conducted. The resulting order, dated November 12 and entered on November 13, simultaneously allowed the attorney to withdraw as Michael’s counsel over Jane’s attorney’s objection and continued the divorce trial to December 8, 2009. The order shows Michael’s attorney “agreed as to form” of the order and signed it as “counsel for Defendant.” It is undisputed that no record support exists to show Michael had actual notice of the subsequent trial. Though the record indicates Michael had not missed any prior court hearings, he did not appear for the December 8 trial. However, the chancellor proceeded with the hearing, granting Jane a divorce on the ground of habitual drunkenness and awarding her custody of their son. He also awarded her attorney’s fees and divided the marital property. Michael filed a motion to set aside the divorce and for a new trial. Michael argued the divorce judgment was void and should be set aside. The chancellor denied the motion, and Michael appeals.

    Summary of Opinion Analysis: Michael argues the chancellor should have granted his post-judgment motion for both the failure to provide sufficient notice under M.R.C.P. 5 and errors in awarding Jane a divorce, custody, equitable distribution, and attorney’s fees. Although the grant or denial of an M.R.C.P. 60(b) motion is generally within the discretion of the trial court, if the judgment is void, the trial court has no discretion. The court must set the void judgment aside. A judgment is void if the court acted in a manner inconsistent with due process of law. Under M.R.C.P. 5(b), service is made upon the attorney with two basic exceptions — the party is not represented or the court orders otherwise. Under the first exception, service on a party is valid—indeed it is obligatory—if a party does not have an attorney or if the attorney has ceased to represent the party. Having been permitted to withdraw in this case, Michael’s attorney undoubtedly “ceased to represent” Michael. The chancellor reasoned that because the order was not entered until November 13, 2009, the attorney was technically Michael’s attorney until the following day. Thus, Michael received notice of the hearing through his “attorney of record” because the attorney left the courthouse on November 12 with a copy of the order. But applying this same reasoning, the December 8 trial date was also not set until November 13, the date the order was entered. So at the moment the hearing was set, Michael was without counsel. Having been let out of the case, the attorney no longer had authority to receive Rule 5(b) service on Michael’s behalf. Because the December 8 judgment was void for lack of due process, this matter is remanded to the chancery court. 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, all resulting decisions regarding custody, property distribution, and attorney’s fees are reversed also.


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