Divorce is a Rule 4 Action
September 11, 2017 § 2 Comments
Last week I invited your comments on this language from the MSSC’s decision in Lewis v. Pagel, the case that changed the law of venue in Mississippi divorce actions:
¶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.
A couple of commentors hit the nail on the head.
The problem with that statement is that divorce is not a R81 matter; it is a R4 matter. Read R81(d) for yourself. Other than a motion for temporary relief in a divorce, there is no mention of divorce in R81(d). That’s because process in a divorce is made pursuant to R4, and an answer is required within 30 days of service or the defendant will be in default. Now, it is true that a divorce complaint may not be taken as confessed, so that failure to file an answer can not result in entry of a default judgment as would be the case in a law suit; however, it is not R81 process that would be returnable to a day certain, and failure to file an answer does have consequences unlike R81.
It is true that R81 is “subject to limited applicability” to Title 93, which includes divorces. But that provision yields to statutory “procedures” that may be in conflict with the rules, and there are no statutory procedures spelled out in Title 93 that conflict with R4, or with R81 for that matter.
The reason I am pointing this out is not because I like to challenge the justices. It’s because I think it’s important for us to keep these things straight to avoid confusion. The above unfortunate language now sleeps in our jurisprudence, possibly to awaken and do mischief in some later case.
I think sometimes that lawyers who have not spent much time dealing with R81 see it as some kind of mystical incantation that must be invoked in chancery matters, and that unless the rituals are properly observed and the magic is properly invoked, jurisdiction will not attach.
The fact is that R4 and R81 are simply two different systems for service of process. Every matter is a R4 action unless it is specifically mentioned in R81(d). It’s as simple as that.
The Better Chancery Practice Blog 
Amen! It is a war debating this issue. I had a divorce, no children, ergo, no support issues, no nothing but my client needed a divorce. My Rule 4 Summons was issued and served-no response-he was a batterer-go figure! The Judge refused to hear it and told me that it was a Rule 81 matter and I had to reissue a 30 day Rule 81 summons. Not only was my client grieved but it was unbelievable to me. Now others have said that if the complainant requests child support or custody (not temporary relief) then a Rule 81 summons must issue. Is that true? The path of least resistance says file both, at least you will have a date for the trial setting-and that may be a good reason to do so-however, does that make it right? With all due respect-I am just asking a question.
Bottom line is do it like your chancellor directs; you can’t go wrong that way.