Navigating the New World of Venue in Divorces
March 21, 2018 § 1 Comment
As far back as the days when dinosaurs roamed the Jackson prairie, the rule in Mississippi was that divorce venue as spelled out in MCA 93-5-11 conferred subject matter jurisdiction, and, thus, could not be waived or conferred by consent.
Fast forward to the days when Wal-Mart roamed the area, and the rule changed. In Lewis v. Pagel, decided last June, the MSSC reversed ancient precedent and held that subject-matter jurisdiction was conferred not by statute, but by the Mississippi Constitution. The statute, the court held, governs venue and controls the court’s exercise of personal jurisdiction over the defendant.
I posted about Lewis at this link. I urged readers to “stay tuned” to see how the court’s ruling plays out.
Well, as it turns out, we now have a case that applies Lewis. In Ridgeway v. Hooker, decided February 15, 2018, Patrick Ridgeway appealed from the chancery court’s denial of his R60(b)(6) motion for relief from judgment based on his argument that the trial court lacked subject matter jurisdiction to grant a divorce between him and his ex-wife, Louise Hooker. Here is how Justice Kitchens’s opinion addressed Patrick’s argument:
¶21. Mississippi Code Section 93-5-2(1) provides:
Divorce from the bonds of matrimony may be granted on the ground of irreconcilable differences, but only upon the joint complaint of the husband and wife or a complaint where the defendant has been personally served with process or where the defendant has entered an appearance by written waiver of process.
Miss. Code Ann. § 93-5-2(1) (Rev. 2013). Mississippi Rule of Civil Procedure 60(b)(4) allows a court to “relieve a party . . . from a final judgment” if “the judgment is void . . . .” Ridgeway argues that the chancery court lacked subject-matter and personal jurisdiction because the complaint he filed was not a joint complaint, he never served the complaint on Hooker, and Hooker never entered an appearance by written waiver.
¶22. “Subject matter jurisdiction is the power of the court to hear and determine cases in the general class to which the particular case belongs.” In re Estate of Kelly, 951 So. 2d 543, 548 (Miss. 2007) (citing Case v. Case, 246 Miss. 750, 758, 150 So. 2d 148 (1963)). “Subject matter jurisdiction is conveyed by the Mississippi Constitution.” Lewis v. Pagel, 2017 WL 2377690, *6 (Miss. June 1, 2017). “Section 159 of the Mississippi Constitution vests subject matter jurisdiction in the chancery courts over divorce proceedings.” Id. at *6 (citing Miss.
Const. art. 6, § 159 (“The chancery court shall have full jurisdiction in the following matters and cases, viz.: . . . (b) Divorce and alimony . . . .”)).
¶23. It is true, as Ridgeway argues, that “the defense of lack of subject matter jurisdiction cannot be waived.” Stuart v. Univ. of Miss. Med. Ctr., 21 So. 3d 544, 548-49 (Miss. 2009) (citing Capron v. Van Noorden, 2 Cranch 126, 6 U.S. 126, 127, 2 L. Ed. 229 (1804) (“[I]t was the duty of the Court to see that [it] had jurisdiction, for the consent of the parties could not give it.”)). But this Court recently overruled cases holding that the venue requirements of Mississippi Code Section 93-5-11 (Rev. 2013) [Fn 1] “could not be waived as it vested subject matter jurisdiction over divorce actions in the chancery court.” Lewis, 2017 WL 2377690, at *6. This Court overruled “these past cases to the extent that they hold that Section 93-5-11 confers subject-matter jurisdiction on chancery courts.” Id. Instead, the Court held that, while the Mississippi Constitution confers subject-matter jurisdiction,“Section 93-5-11 governs the venue of a divorce action and limits the chancery court’s exercise of personal jurisdiction over the defendant,” and the “Mississippi Rules of Civil Procedure control the procedure to be utilized when venue is improper.” Id.
[Fn 1] Mississippi Code Section 93-5-11 governs proper venue for divorce actions:
All complaints, except those based solely on the ground of irreconcilable differences, must be filed in the county in which the plaintiff resides, if the defendant be a nonresident of this state, or be absent, so that process cannot be served; and the manner of making such parties defendants so as to authorize a judgment against them in other chancery cases, shall be observed. If the defendant be a resident of this state, the complaint shall be filed in the county in which such defendant resides or may be found at the time, or in the county of the residence of the parties at the time of separation, if the plaintiff be still a resident of such county when the suit is instituted.
A complaint for divorce based solely on the grounds of irreconcilable differences shall be filed in the county of residence of either party where both parties are residents of this state. If one (1) party is not a resident of this state, then the complaint shall be filed in the county where the resident party resides. Transfer of venue shall be governed by Rule 82(d) of the Mississippi Rules of Civil Procedure.
Miss. Code Ann. § 93-5-11 (Rev. 2013).
¶24. The chancery court has jurisdiction of divorce cases, including irreconcilable differences divorces. See Miss. Const. art. 6, § 159. No case cited by Ridgeway stands for the proposition that the requirements of Section 93-5-2(1), if not strictly complied with, deprive the chancery court of subject-matter jurisdiction of an irreconcilable differences divorce. As in Lewis, Section 93-5-2(1) limits the chancery court’s exercise of personal jurisdiction over the defendant, requiring a joint complaint and either personal service on the defendant or the defendant’s “entry of appearance by written waiver of process.” Miss. Code Ann. § 93-5-2(1).
¶25. Personal jurisdiction “is an individual right that can be waived.” Pekin Ins. Co. v. Hinton, 192 So. 3d 966, 971 (Miss. 2016) (citing Ins. Corp. of Ireland v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 703, 102 S. Ct. 2099, 2105, 72 L. Ed. 2d 492 (1982)). More specifically, “[o]ne waives process and service . . . upon making a general appearance.” Isom v. Jernigan, 840 So. 2d 104, 107 (Miss. 2003). This Court held, in a case in which the defendant had “appeared by counsel and filed a plea to the jurisdiction of the court, which he later withdrew, and also filed cross-interrogatories to appellant in the taking of her deposition,” that “personal appearance by a defendant in a cause gives the court jurisdiction of his person as completely as if he had been personally served with process within this state.” Clay v. Clay, 134 Miss. 658, 99 So. 818, 819 (1924). The Mississippi Court of Appeals has held that, while actual service of process had not been issued, the signature of
the defendant and his attorney “under the caption, ‘Read, Agreed, and Approved’” constituted the defendant’s having made “a legal appearance in the matter.” James v. McMullen, 733 So. 2d 358, 360 (Miss. Ct. App. 1999).
¶26. Our Mississippi Rules of Civil Procedure also contemplate waiver in this circumstance: “A defense of lack of jurisdiction over the person, . . . insufficiency of process, or insufficiency of service of process is waived (A) if omitted from a motion in the circumstances described in subdivision (g), [Fn 2] or (B) if it is neither made by a motion under this rule nor included in a responsive pleading or an amendment thereof . . . .” Miss. R. Civ. P. 12(h)(1). Ridgeway makes the statement in his brief that, “[a]ll know that where the [Irreconcilable Divorce Act] and, here, Rule 12 conflict, that the IDA governs.” But the converse is true. See Newell v. State, 308 So. 2d 71 (Miss. 1975) (Article 6, Section 144, of the Mississippi Constitution, which states that the State’s “‘judicial power . . . shall be vested in a Supreme Court and other courts as are provided for in this constitution.’ . . leaves no room for a division of authority between the judiciary and the legislature as to the power to
promulgate rules necessary to accomplish the judiciary’s constitutional purpose.”).
[Fn 2] Mississippi Rule of Civil Procedure 12(g) provides that “[a] party who makes a motion under this rule may join with it any other motions herein provided for and then available to him. . . .” Miss. R. Civ. P. 12(g).
¶27. Here, Ridgeway did not comply with Section 93-5-2(1) in filing a joint complaint, in serving the complaint on Hooker, or in obtaining Hooker’s appearance by written waiver. But Hooker never objected to a lack of jurisdiction, to insufficiency of process, or to insufficiency of service of process. She participated in discovery. She initialed every page of the agreement, signed the agreement, and signed the Judgment of Divorce – Irreconcilable Differences. Hooker’s voluntary appearance obviated the necessity of service of process and she consented to the chancery court’s jurisdiction. By failing to raise the defense of lack of personal jurisdiction, insufficiency of process, or insufficiency of service of process, Hooker waived those defenses pursuant to Rule 12(h)(1).
¶28. It was Ridgeway’s failure to comply with Section 93-5-2(1) which created the alleged jurisdictional defect. As the chancellor correctly observed, Ridgeway cannot complain now of an error of his own creation. This Court has held, an “‘[a]ppellant has no standing to seek
redress from [an] alleged error of his own creation.’” Caston v. State, 823 So. 2d 473, 494-95 (Miss. 2002) (quoting Evans v. State, 547 So. 2d 38, 40 (Miss. 1989)).
¶29. In Kolikas v. Kolikas, 821 So. 2d 874, 876 (Miss. Ct. App. 2002), the husband filed a complaint for divorce in Marshall County, Mississippi, but failed to provide notice to his nonresident wife. The chancery court granted the divorce to the husband, and the Mississippi
Court of Appeals reversed and remanded, holding that “[t]he chancery court had not acquired personal jurisdiction over Ms. Kolikas due to lack of proper service of process based on the Mississippi Rules of Civil Procedure . . . .” Id. at 879-80. The appeals court held that “Mr.
Kolikas, in consultation with his attorney, chose what actions to take in pursuit of divorce” and that “[a]s such, it was his obligation, not that of Ms. Kolikas, to ensure that his actions complied with the appropriate statutes and court rules.” Id. at 879. The court continued: “He did not do so, and cannot place the blame for this failure on Ms. Kolikas.” Id. Similarly, Ridgeway cannot place the blame on Hooker for his own failure to comply with the appropriate statutes and court rules now that doing so, if he succeeded, would inure to his benefit.
¶30. Ridgeway relies on the case of Alexander v. Alexander, 493 So. 2d 978 (Miss. 1986), in support of his argument that “a divorce under the [Irreconcilable Differences Act] was void without some form of personal service or written waiver.” But in that case this Court held “the chancery court exceeded its authority in granting a divorce on the ground of irreconcilable differences” because there had been “no written agreement of the parties regarding their property rights as required by the statute.” Alexander, 493 So. 2d at 980. See Gallaspy v. Gallaspy, 459 So. 2d 283, 287 (Miss. 1987) (Robertson, J., specially concurring) (“The chancery court has no authority to grant a divorce on the ground of irreconcilable differences unless the parties have reached agreement on all financial matters.”). Here, unlike in Alexander, the parties reached a “written agreement for the custody and maintenance of [the] children of [the] marriage and for the settlement of any property rights between the parties . . . .” in accordance with Section 93-5-2(2).
¶31. Accordingly, because the chancellor had subject-matter jurisdiction, because Hooker waived any objection to the exercise of personal jurisdiction, and because Ridgeway lacks standing to complain of an error of his own creation, we affirm.
Lots of nutritional value to digest here. We’ll explore it in greater detail in a future post. For now, rest easy in the understanding that personal jurisdiction, along with all of its ramifications, is what venue now is all about in Mississippi divorce.