The Better Chancery Practice Blog

By Judge Troy Farrell Odom (Rankin County Chancery Judge, Place 2)

Introduction

In Roberts v. Lopez, 148 So. 3d 393 (Miss. Ct. App. 2014), the Court of Appeals for the State of Mississippi held that the 120-day time limit in which to serve the summons and complaint under Mississippi Rule of Civil Procedure 4(h) did not apply to custody modifications and contempt proceedings brought under Rule 81(d)(2). The Court of Appeals upheld this interpretation in Hilton v. Harvey, 284 So. 3d 850 (Miss. Ct. App. 2019).

As a result, the Rankin County Chancery Court, Place 2, denies requests to dismiss actions under Rule 4(h) if process had not been served within 120-days of the filing of the complaint.

In an En Banc Order dated June 8, 2026, made effective July 1, 2026, the Mississippi Supreme Court amended Rule 4 and 81, by relocating Rule 81(d) to Rule 4 as new Rule 4(i). It is possible that this amendment affects whether the 120-day time limit of Rule 4(h) now applies to those actions and matters specifically enumerated in former Rule 81(d), now Rule 4(i). This paper discusses that possibility and its effect on service of process on Rule 4(i) actions and matters.

Roberts v. Lopez

On August 24, 2011, Liza Lopez filed a complaint against David Roberts, alleging fraud in the acquisition of a judgment modifying custody of their child. Roberts, 148 So. 3d at 397. Liza filed an amended complaint against David on February 10, 2012. Id. David was served with the summons and amended complaint on July 3, 2012, which was more than 120-days from the filing of the amended complaint. Id.

Following trial, the chancellor awarded Liza relief, found fraud and modified custody to award both parties joint physical custody of the subject child. Id. David appealed, asserting that Liza failed to serve him within the 120-days set forth in Rule 4(h). Id. at 398.

The Court of Appeals denied David’s assertion. The appellate court first noted the following language of Rule 81(a):

Applicability in General. These rules apply to all civil proceedings but are subject to limited applicability in the following actions which are generally governed by statutory procedures[:] . . . Title 93 of the Mississippi Code of 1972.

Id.

Title 93 of the Mississippi Code relates to domestic relations. The appellate court then looked to the language of Rule 81(d)(2) which provides that modification of custody matters “shall be triable 7 days after completion of process in any manner other than by publication.” Id.

Finally, the Court cited Rule 81(d)(5) which provides for a special summons returnable to a certain date, time, and location. Id.

In denying David’s request, the Court of Appeals noted that Liza’s request to modify custody “was governed by Rule 81(d), not Rule 4(h).” Id. Presumably, because there is no 120-day limitation contained in Rule 81(d), the appellate court decided that the 120-day limitation had either limited applicability or no applicability to Rule 81(d) matters.

Hilton v. Harvey

On September 20, 2016, Chris Harvey filed a petition against Natasha Hilton for contempt and modification of custody. Hilton, 284 So. 3d at 852. Chris did not serve Natasha until January 24, 2017, which was 126-days after he filed his petition. Id.

Following trial, the chancellor found in Chris’s favor. Id. at 853. Natasha appealed arguing the Court lacked personal jurisdiction over her since Chris failed to serve Natasha within 120-days. Id.

The Court of Appeals relied heavily on Roberts in denying Natasha’s appeal. The appellate court added to its analysis the language of Rule 81(d) that provides:

The special rules of procedure set forth in this paragraph shall apply to the actions and matters enumerated in subparagraphs (1) and (2) hereof and shall control to the extent they may be in conflict with any other provision of these rules.

Id.

The appellate court noted that Rule 81(d) “places no 120-day deadline for service of process, as in Rule 4(h).” Id. The Court of Appeals interpreted Roberts as holding that “as a domestic-relations matter Rule 81 controlled service of process in the mother’s case, and not Rule 4(h),” and that because the father in Roberts had been served with a Rule 81 summons commanding him to appear and a time, date, and place certain, the 120-day deadline “was of no moment.” Id.

2026 Amendments to Rules 4 and 81

The June 8, 2026, En Banc Order from the Mississippi Supreme Court granted a Motion to Amend filed by the Supreme Court Advisory Committee on Rules. See En Banc Order in Case No. 89-R-99001-SCT. That motion left Rule 4(a)-(h) unchanged. However, the motion added a new subparagraph (i) to the tail-end of Rule 4. New subparagraph (i) is, in large part, the entirety of then-existing Rule 81(d). Likewise, the amendment removed Rule 81(d) from Rule 81.

New Rule 4(i) made certain changes to old Rule 81(d) that—though, in my opinion, are welcome and helpful—are not pertinent to the subject matter of this paper. What is important is that the provisions of Rule 81(d) have been integrated into Rule 4 and whether that now makes the 120-day deadline applicable to matters and actions filed under Rule 4(i).

Presently, Rule 81(a) continues to provide that the Mississippi Rules of Civil Procedure have limited applicability to actions filed under Title 93 of the Mississippi Code. However, the Roberts and Hilton courts omitted in their analysis the last sentence of Rule 81(a), which states:

Statutory procedures specifically provided for each of the above proceedings shall remain in effect and shall control to the extent they may be in conflict with these rules; otherwise these rules apply.

(emphasis added).

Rule 81(a) is therefore helpful to point out that the rules of civil procedure control to the extent they do not conflict with statutory procedures in Title 93 of the Mississippi Code. And there is no statutory procedure in Title 93 related to time limitations on service of process.

That omission by the appellate court did not change their ultimate holding—it was surplusage to perhaps demonstrate that domestic relations matters are treated differently in certain ways.

The Roberts court based its decision on the fact that custody modification matters fell under then-existing Rule 81(d), and Rule 81(d)—which provided for the issuance of a special summons—did not have a time limitation similar to Rule 4(h). The Hilton court took it one step further by expressly stating what the Roberts court did not, that is “Rule 81(d), however, places no 120-day deadline for service of process, as in Rule 4(h).”

The 120-day deadline of Rule 4(h) does not conflict with any provision of old Rule 81(d). But because Rule 81 was located so far away from Rule 4 in the rulebook, it was convenient to treat the two rules as distinct and autonomous “service of process” rules.

The former Rule 81(d) now appears as Rule 4(i), immediately below Rule 4(h) and its 120-day deadline. It is increasingly difficult to argue that Rule 4(h) does not apply to Rule 4(i). The subparagraphs do not conflict—Rule 4(i) just provides for a different form of summons, not the timetable in which to serve it.

To repeat and emphasize: Rule 81(a) requires the rules of civil procedure to control over statutory procedures so long as the two do not conflict. There is no statutory procedure limiting the time in which to serve a summons. Also, the “special rules of procedure” set forth in Rule 4(i) only control to the extent they do not conflict with the remaining rules of civil procedure. There is no “special rule of procedure” set forth in Rule 4(i) limiting the time in which to serve a summons. Rules 4(h) and (i) are now bosom buddies—the conceptual separation between the two rules has largely disappeared. Therefore, it is at least possible the appellate courts of Mississippi will take a harder look at Roberts and Hilton the next time this issue is preserved for appeal.

Of course, the practical effect of applying Rule 4(h) to Rule 4(i) matters may be minimal. Rule 4(h) requires the Court to dismiss the matter without prejudice if service is not made within the 120-day deadline and the petitioner cannot show good cause. Typically, statutes of limitation have limited applicability to domestic relations matters. Therefore, the dismissed party may only lose a filing fee and attorney’s fee. However, this may encourage more timely prosecution of cases before the chancery court. Until the appellate courts address the issue, practitioners would be wise to assume that Rule 4(h) may apply to Rule 4(i) proceedings.

Tagged: Rule 81, service of process