The Unanswered Divorce Complaint
July 21, 2015 § 14 Comments
You have filed a divorce complaint for your client and had the defendant personally served per MRCP 4. Intelligence from your client leads you to believe that the defendant will not participate, so you put the file away and let the thirty days tick down.
On the twenty-ninth day, you receive a handwritten letter from the defendant neither admitting nor denying the allegations of the complaint. The defendant filed a copy of the letter in the case with the Chancery Clerk. You set the case for trial and, exercising prudence, give notice to the defendant of the day and time. You are still convinced that there will be no opposition since no bona fide answer or counterclaim has been filed, and, as your client indicated, the defendant is not likely to participate. You think it best to forego the trouble and expense of discovery.
On the day appointed for trial, you appear with your client and a single corroborating witness. The defendant, however, is there waiting for you, accompanied by competent counsel and a dozen or so supportive witnesses. The defendant is insisting on going forward with a trial right then and there. What to do?
- Can the defendant present evidence contra the grounds for divorce, even though he did not file an answer? Yes, according Rawson v. Buta, 609 So.2d 426, 430-431 (Miss. 1992). The lack of an answer does not confess the allegations of the complaint per MRA 93-5-7. Because the allegations of the complaint are not taken as confessed, they always require adequate proof to sustain them, and the defendant may offer proof to rebut the plaintiff’s proof. The defendant may not, however, go outside the scope of the complaint, and may not put on proof supporting any affirmative relief.
- You should ask for a continuance — on the record — and explain to the judge in detail why you need one and what were the presumptions on which you based your lack of discovery and other preparations for a trial. Bring to the attention of the court your lack of notice that the defendant would be represented, and what effect that had on your readiness for trial.
- Don’t assume if you get your continuance that the 90 days for discovery per UCCR 1.10 has been extended. Ask for additional time and get a court order to that effect.
- Was it ethical for that other lawyer to sandbag you like he did? I don’t see a specific ethical provision that was expressly violated, but it just seems to violate the spirit of RPC 3.4, as well as the preamble to the RPC. That kind of conduct does not pass the smell test, and would more than likely tip the scales in your favor for a continuance. In my experience, it’s the kind of conduct that causes hard feelings among attorneys in small communities and should be avoided. Defendant’s lawyer should have notified you when he was retained, or at least he should have filed an entry of appearance in the case and served it on you.
- [Added after publication] As a last resort, you could just move to dismiss your client’s complaint per MRCP 41(a). That would stop this unpleasantness, but your client would have to start over, and there is an off-chance that she could be assessed some expenses of the defendant for showing up.
The Better Chancery Practice Blog 
I meant to post those in reply to the TBA string of comments.
Helpful comments all. Thank you, gentlemen.
A similar Rule 36 issue that I dealt with a while back was whether a party had to move to have a matter deemed admitted when the other party failed to respond to discovery. The Mississippi Supreme Court has held that it is unnecessary for a party to petition the court to have matters deemed admitted. See In re Dissolution of Marriage of Leverock & Hamby, 23 So. 3d 424, 432 (¶ 28) (Miss. 2009) (holding “[w]e find that it was unnecessary for the [party] to petition the chancellor to deem the requests for admission admitted).
As the Mississippi Court of Appeals later explained, “[t]his is because a judge does not have the discretion to deem the matter admitted, because a request is conclusively established upon a party’s failure to answer within thirty days.” Montgomery v. Stribling, 115 So. 3d 823, 829 (¶ 16) (Miss. Ct. App. 2012).
Bob Wolford:
This may also be helpful: The Mississippi Supreme Court has held that “the rule of law in this State is that Rule 36 is to be enforced according to its terms. Matters admitted by default under Rule 36(a) are established unless and until the trial court allows amendment or withdrawal by motion under Rule 36(b).” DeBlanc v. Stancil, 814 So. 2d 796, 800 (¶ 17) (Miss. 2002). Further, “[A’] matter that is deemed admitted does not require further proof. Any admission that is not amended or withdrawn cannot be rebutted by contrary testimony or ignored by the court even if the party against whom it is directed offers more credible evidence.” Young v. Smith, 67 So. 3d 732, 742 (¶ 22) (Miss. 2011).
Judge- I have one of these scenarios pending, except I also served discovery with the summons, including RFA’s that were pretty darn specific to the grounds I alleged. Defendant has not retained a lawyer, although he did appear at a preliminary hearing, and we have a reset date at the end of this month. Obviously, no response to the complaint or discovery (including the RFA’s). I plan to file a “Notice of Facts Deemed Admitted”, and then bring along a corroborating witness and make short work of this.
You are wise to bring along the witness, but I wonder out loud whether unanswered, & thus admitted, Rule 36 requests, standing alone, are sufficient proof for a contested divorce. Can’t think why not ….
There is case law addressed on this blog somewhere that the MSSC says you can’t use RFA’s to establish ultimate facts. I think that’s what TBA is referring to.
Hm. At a glance, I find this from the COA:
P7. We begin our analysis by determining whether the ultimate issue of a given case may be established by admission pursuant to Rule 36. Federal Rule of Civil procedure 36 (b) is identical to our Rule 36 of [**9] the Mississippi Rules of Civil Procedure. Numerous federal courts have held that requests for admissions are not objectionable merely because they go to ultimate facts or other issues that must be proven by a plaintiff. See, e.g., Campbell v. Spectrum Automation Co., 601 F.2d 246, 253 (6th Cir. 1979); Cereghino v. Boeing Co., 873 F. Supp. 398, 403 (D.Or. 1994) (holding “a request for admission under Rule 36, and a resultant admission, are not improper merely because they . . . relate to an ‘ultimate fact,’ or prove dispositive of the entire case.”); City of Rome v. United States, 450 F. Supp. 378, 383 (D.D.C. 1978), aff’d, 446 U.S. 156, 64 L. Ed. 2d 119, 100 S. Ct. 1548 (1980). However, even though the ultimate issue may be admitted through Rule 36, it must be remembered that any trial court in Mississippi may, as justice requires, allow the withdrawal of the issue admitted in accordance with the procedure established by the plain text of the rule. M.R.C.P. 36(b).
Gilcrease v. Gilcrease, 918 So. 2d 854, 858 (Miss. Ct. App. 2005).
… Hit post too soon. The court went on to hold that the custody issue in question was too important to leave up to RFAs (judicial not evidentiary, by which I guess was meant the weighing of factors, polestar interest, etc.).
MSSC didn’t disagree in Pendleton v. Leverock (In re Marriage of Leverock), 23 So. 3d 424, 433 (Miss. 2009), a termination of rights issue. The upshot seems to be that yes, they’re admitted, but the court should take into account the gravity of the custody/termination decision in evaluating a motion to withdraw the admissions.
I’m very possibly missing a case applying this to divorce, but divorce vel non doesn’t seem to rise to the gravity of custody.
Nice.
See also DeBlanc v. Stancil, 814 So. 2d 796, 801 (Miss. 2002) (affirming setting aside of deed based on Rule 36 admissions). As an aid to confusion, that decision cites, apparently favorably, federal law that Rule 36 admissions are “treated as a judicial admission, not as an evidentiary admission.”
Thanks for the input there- appreciate the insight.
Thank you for your practical and illuminating commentaries.
Debbie Allen
Thank you.