Divorce Defendant in Default

December 4, 2014 § Leave a comment

Larry Bolivar filed for divorce from his wife, Teresa, on February 19, 2013. She was served with process on March 21, 2013. The R4 process was in the usual form that included the admonishment to file an answer within 30 days, or the relief requested could be granted.

On May 8, 2013, Teresa had filed no response to the divorce complaint, and Larry appeared in court and presented his case. The chancellor granted him a divorce from her.

In June, 2013, Teresa filed a motion to set aside the divorce, an answer denying the allegations of the complaint, and a counterclaim for divorce. In her motion to set aside the divorce, she complained that she had not been properly served with a summons or notice of hearing for the May 8, 2013, proceeding.

At the hearing on her motion to set aside the divorce judgment, Teresa acknowledged that she had been served with process on the complaint, and the judge found on that point that she had been served with process. As to her argument that she should have been given notice of the May hearing, the chancellor denied the motion on the basis that her failure to file an answer precluded her from asserting that claim. Teresa appealed.

On appeal, Teresa raised for the first time the issue whether Larry should have had her declared to be in default per MRCP 55 before proceeding against her.

In the case of Bolivar v. Bolivar, decided November 25, 2014, the COA affirmed the chancellor’s rulings. Judge Ishee wrote the opinion for the court.

On the issue of whether Teresa was entitled to notice, pursuant to MRCP 5, of the May hearing, the court said this:

¶11. Rule 5(a), in pertinent part, provides that “every written notice . . . shall be served upon each of the parties.” Nonetheless, Rule 5(a) also states that “[n]o service need be made on parties in default for failure to appear[.]” At the hearing regarding Teresa’s motion to set aside the divorce judgment, Teresa testified that she was served properly with process. Although she contends that she had obtained an attorney whom she believed was handling her case, the record does not reflect that any action was taken on her behalf in the thirty days following her receipt of the summons. As such, she was in default for failing to answer or appear. Nonetheless, Teresa argues that she was not properly declared in default pursuant to Rule 55.

As to whether she was properly declared in default per MRCP 55:

¶12. Rule 55 governs default judgments, and provides that when a party “has failed to plead or otherwise defend as provided by these rules and that fact is made to appear by affidavit or otherwise, the clerk shall enter his default.” M.R.C.P. 55(a). However, “[i]f the party against whom judgment by default is sought has appeared in the action, he [or his representative] shall be served with written notice of the application for judgment at least three days prior to the hearing of such application[.]” M.R.C.P. 55(b). Teresa contends that Larry should have applied for an entry of default with the chancery clerk or applied for a default judgment in the chancery court. She maintains that his failure to declare her in default meant that she was not in default and his duty to serve her notice remained intact. As such, she argues that the judgment in his favor is void. We disagree.

¶13. This rule is “not directly applicable” to divorce proceedings. Stinson v. Stinson, 738 So. 2d 1259, 1262 (¶12) (Miss. 1999). Specifically, the Mississippi Supreme Court has held that a judgment entered in an action for divorce following a defendant’s failure to answer is “a special kind of default judgment.” Id. at 1263 (¶13) (quoting Mayoza v. Mayoza, 526 So. 2d 547, 548 (Miss. 1988)). A defendant’s failure to answer does not drag a divorce case to a halt. Instead, the plaintiff must, at a hearing, prove the allegations that support the receipt of a divorce. If that is done, then the chancellor has authority to grant the divorce despite the absence of the defendant. Id. at (¶15). This reasoning is supported by Rule 55(e), which provides that “unless the claimant establishes his claim or rights to relief by evidence,” a default judgment will not be entered in a suit for divorce. “Furthermore, a divorce will not be granted on the uncorroborated testimony of the claimant.” Lindsey v. Lindsey, 818 So. 2d 1191, 1194 (¶13) (Miss. 2002).

¶14. Since Teresa failed to answer or appear, we find that she was in default and not owed notice of the divorce hearing. Further, after a review of the record, we find that Larry established his claim to a judgment of divorce despite Teresa’s absence. Larry’s testimony, in addition to the corroborating testimony of Parker, clearly established a divorce on the grounds of desertion. As such, we find this issue is without merit.

Note that if the defendant does enter a timely appearance, and then stops participating, you must give the defendant notice of further proceedings per R5.

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