MRCP 4(h) and the Divorce Complaint

October 27, 2014 § Leave a comment

We talked here last week about the applicability of MRCP 4(h) to R81 actions. Whichever side of that particular issue you come down on, you need to be aware that, yes indeed, R4(h) does apply to divorce complaints. And it can bite you in uncomfortable regions of your anatomy if you’re not careful.

In Webster v. Webster, 834 So.2d 26 (Miss. 2003), Charles Webster had left his wife, Jean, and moved to Texas, where he obtained a divorce judgment against her.

On October 5, 1999, Jean filed her own action in Mississippi, claiming that Texas never obtained personal process on her, and that she had never lived in Texas. She attempted several times unsuccessfully to effect certified mail process. On February 8, 2002, she filed a motion to allow out-of-time service of process, which the chancellor granted, finding that good cause existed to allow an additional 120 days.

On June 21, 2000, outside the 120-day extension, Jean filed an amended complaint and issued a new summons. Charles was served with process on July 3, 2000. On October 30, 2000, the chancellor entered a judgment granting alimony and other relief that Charles found distasteful enough that he filed a R60 motion complaining that the court did not have personal jurisdiction because of the out-of-time process. The chancellor overruled the motion, and Charles appealed.

The MSSC reversed and remanded.

Was Jean’s motion for extension of time untimely? Jean waited until after the initial 120 days had run before she filed for additional time. The court took note of a split of authority in other states, but noted that there is nothing in the rules that requires filing a motion for extension within 120 days. It did point out that a diligent attorney should file within the 120 days, and would actually support a finding in favor of the extension.

Did Jean show good cause for not meeting the 120-day requirement? The court said no. You can read the opinion for yourself, but to me there are two salient points to take away: (1) Jean did not support her motion with affidavits, which would have made a record; and (2) You have to make a convincing effort to find and serve the defendant; a few random, half-hearted stabs at it will not suffice.

I also wonder whether that amended complaint was done properly. We’ve talked about that here before.

The moral of this story is that failure to get process on a defendant within 120 days of filing your complaint is one of those fatal problems that can lurk in your record until it rises, zombie-like via a R60 motion, and then on appeal, causing you to lose a case you and your disappointed client had thought you had won.

Do you think this is an academic point you’re not likely to see in your lifetime? Not so fast, my friend. The following scenario happens every day: You file a complaint for divorce on HCIT and alternatively on ID, anticipating, based on your client’s confidence, that everything will be worked out swimmingly. After six months the defendant still has not come to terms — and he has not been served with process. Finally, you issue process and get the case moving. Your 192-day process is ticking away in your case like a time bomb.

Best practice is to wait no longer than 60-90 days to get a waiver and agreed PSA. Immediately after that, have the defendant served with process. You can then continue to attempt a settlement, but R4(h) will no longer be a concern.

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