Rule 4 or Rule 81?
September 6, 2017 § 9 Comments
Yesterday we discussed Lewis v. Pagel, the June 1, 2017, MSSC case that changed Mississippi divorce law with respect to venue.
Can anyone tell me what is wrong with this statement from the opinion:
¶34. It is uncontested in the record that Drake did not answer Tonia’s complaint for divorce. While Drake was not required to do so, he was permitted to do so under Mississippi Rule of Civil Procedure 81. M.R.C.P 81(d)(4); see also M.R.C.P. 12. Drake certainly could have responded to Tonia’s complaint and challenged venue. Instead, Drake chose to litigate the entire divorce and several ancillary matters, including several appeals, before raising his venue objection once a contempt judgment appeared imminent.
I’ll revisit this next week.
The Better Chancery Practice Blog 
My recurring suspicion is that not all 9 justices read all of the ops they vote on.
What I want to say is:
Bluntly, this statement exhibits a complete lack of understanding of chancery practice, equity and fundamental fairness. The fact that this is a unanimous decision is shocking. If you are not required to file an answer, how can the fact that you did not file an answer be used against you? This opinion indicates that because Drake followed the rules, he thereby committed some grievous error and waived his rights. What’s wrong with following the rules?
When many of us began the practice of law, the Supreme Court of Mississippi was dominated by former Chancellors. Then it wasn’t. Look at what we have now. That’s not to say that former Chancellors make better Justices. But former Chancellors obviously have a better understanding of chancery practice.
“What’s next” is anybodies guess. These type opinions are quite frustrating and makes the practice of law in chancery court a crap shoot. It certainly makes the job of the Chancellor more difficult and it certainly encourages an appeal of every case “if my client can afford it,” as one attorney once told me. Who knows? Anything is possible.
But, I won’t. I’ll just say “Well, bless your heart.”
When I started practicing, admittedly a long time ago, jurisdiction was considered essential, and Supreme Court judges followed the law even when thy didn’t want to. Zeke Downey
Could it be that in divorce cases venue is jurisdictional?
I’m with Reggie.
Rule 4 Summons states that you do not have to answer but a default judgment can be taken if you don’t answer or appear within 30 days. Under Rule 81, the Court may require a person to file an answer and failing to do so, that person may not present evidence. Rule 12 specifically states that lack of jurisdiction and improper venue may be made by answer within 30 days or by motion and may be asserted at the time of the trial.
He had to answer the Rule 4?
Beyond the divergence in rules, what is wrong with this is the existence of two often conflicting rules, and any rule that makes filing an answer discretionary.
Divorce is Rule 4. Temporary is Rule 81.