Morrison v. Miss. Dep't of Human Serv.
| Docket Number: | 2001-CT-01088-SCT Linked Case(s): 2001-CT-01088-SCT ; 2001-CT-01088-SCT ; 2001-CA-01088-COA |
|
| Supreme Court: | Opinion Link Opinion Date: 01-15-2004 Opinion Author: Carlson, J. Holding: THE JUDGMENT OF THE COURT OF APPEALS IS AFFIRMED IN PART AS TO THE EDUCATIONAL EXPENSES ISSUE AND REVERSED IN PART AS TO ALL OTHER ISSUES; THE JUDGMENT OF THE CHANCERY COURT OF ALCORN COUNTY OF WILLFUL CONTEMPT OF COURT IS VACATED; AND THE JUDGMENT OF THE CHANCERY COURT OF ALCORN COUNTY IS REVERSED AND RENDERED AS TO THE EDUCATIONAL EXPENSES ISSUE |
|
| Additional Case Information: |
Topic: Contempt - M.R.C.P. 81 - Service of process - Collateral attack on judgment Judge(s) Concurring: Pittman, C.J., Smith and Waller, P.JJ., Cobb, Easley, Graves and Dickinson, JJ. Non Participating Judge(s): Diaz, J. Procedural History: Bench Trial Nature of the Case: CIVIL - DOMESTIC RELATIONS Writ of Certiorari: Granted Appealed from Court of Appeals |
|
| Trial Court: |
Date of Trial Judgment: 06-12-2001 Appealed from: Alcorn County Chancery Court Judge: John C. Ross, Jr. Disposition: JUDGMENT FOR DHS FINDING APPELLANT IN CONTEMPT Case Number: 25,287 |
|
| Note: | The Judgment of the Court of Appeals is Affirmed in Part as to the Educational Expenses Issue and Reversed in Part as to all other issues. The Judgment of the Chancery Court of Alcorn County of Willful Contempt of Court is Vacated; and the Judgment of the Chancery Court of Alcorn County is Reversed and Renderd as to the Educational Expenses Issue. The Supreme Court found that the Court of Appeals' decision affirming the Chancery Court of Alcorn County's judgment of contempt, as to all issues except the educational expenses, was improper and is reversed based upon lack of notice to the Appellant. | |
| Party Name: | Attorney Name: | |||
| Appellant: | Gary W. Morrison |
TERRY LYNN WOOD |
||
| Appellee: | Mississippi Department of Human Services | VICKIE R. MITCHELL |
|
|
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: | Contempt - M.R.C.P. 81 - Service of process - Collateral attack on judgment |
| Summary of the Facts: | Gary Morrison was found in contempt of a child support modification order. He appealed on the basis that he had not been served with process. The Court of Appeals affirmed as to the general validity of the judgment and reversed and rendered as to the portion of the judgment requiring Morrison to pay educational expenses for a master's degree. The Supreme Court granted certiorari. |
| Summary of Opinion Analysis: | Child support modification and contempt actions fall under M.R.C.P. 81(d). A Rule 81 summons must set out a specific time and place the defendant is to appear. Service of a Rule 81 summons by mail can be done either under M.R.C.P. 4(c)(3) or (5). A Rule 81 summons was issued in this case directing Morrison to appear at a time and date certain, but there is no proof he was ever served. Morrison argues that since he attacked the 1994 order upon first learning in 2000 of its existence, his action is a direct attack on the order rather than a collateral attack as found by the Court of Appeals. The record supports Morrison's assertion that he attacked the judgment upon learning of it. To conclude that because Morrison waited so long that he could not successfully challenge service of process is improper. The Court of Appeals concludes that the lack of a return cannot constitute an affirmative showing of failure to serve. If that were the case, a defendant would never need to actually be served so long as no return was filed. Because the record supports Morrison's claim that his due process rights were violated, the judgment of contempt is void. The Court of Appeals' decision affirming the judgment of contempt is reversed. |
Home | Terms of Use | About the JDP | Feedback | Using JDP | MC Law Library | Mississippi Supreme Court
