Not Allowed to Testify
January 23, 2019 § Leave a comment
We visited the Sheridan v. Cassidy COA case yesterday, in which the court affirmed a chancellor’s decision not to allow the testimony of a twelve-year-old boy to testify as to his preference. There was a dissent.
In the same case, the chancellor also refused to allow either the twelve-year-old son or his eight-year-old sister to testify. The COA affirmed:
¶24. Farra also contends that the chancellor erred in summarily excluding testimony from the twelve-year-old son and the ten-year-old daughter. Farra argues that the chancellor was required to conduct a hearing pursuant to Jethrow v. Jethrow, 571 So. 2d 270 (Miss. 1990). In Jethrow, the supreme court stated that “there can be no per se prohibition against a child witness testifying in a divorce case between his parents.” Id. at 273. There, the mother wanted to call the parties’ eight-year-old child “as a witness to testify to acts of violence against her by [the father],” but the chancellor refused. Id. at 271. The supreme court reversed, concluding that certain procedures should be followed in deciding whether to
exclude “the testimony of a child witness of tender years in a divorce proceeding.” Id. at 273. First, determine if the child is competent to testify and second, determine whether it is in the child’s best interests to testify. Id. at 273-74.
¶25. Here, the chancellor did not conduct a Jethrow hearing, and neither party requested one. The chancellor did state that it was not in the children’s best interest to testify because he thought pitting the children against the parents would be detrimental to the children. He stated, “That is not fair. This is not their fight, they didn’t start it. They didn’t cause the divorce, they are the victims of it.” The chancellor further expressed his opinion that the children had been coached, so any testimony would be unhelpful. In this instance, we find no abuse of discretion by the chancellor.
If the law is that “there can be no per se prohibition against a child testifying,” then it would seem that the only way to document a refusal to allow it would be to conduct a Jethrow examination. For my part, I seldom do that with children who are in their late teens unless there is obvious immaturity, or some condition such as autism or low intelligence, or obvious intimidation. I would almost certainly conduct a Jethrow examination with an eight year old, but whether to do so with a twelve year old would depend on my assessment of the child’s maturity and mental and emotional health. If a party specifically requests a Jethrow examination, I would likely do it.
One caution: Notice that the COA pointed out that no party had requested a Jethrow exam, and then went on to uphold the judge’s findings without it. That signals to me that, if you do not request the Jethrow exam, you may well be stuck with whatever the judge’s conclusions are about whether the child or children should testify.
Not Allowed to State a Preference
January 22, 2019 § Leave a comment
Most chancellors do not like having the children testify in litigation between the parents. Among other objectionable things, it subjects them to stresses that they are often too young to bear, it forces them to choose sides, and it subjects them to a tug-of-war between the parents.
In the modification case between Farra Sheridan and her ex-husband, James Cassidy, Farra wanted to call her twelve-year-old son as a witness to state his preference, and both he and his eight-year-old sister on the merits, but the chancellor refused, stating that he believed the children had been coached and that pitting the children would not be in their best interest. He said, “That is not fair. This is not their fight, they didn’t start it. They didn’t start the divorce. they are victims of it.” Farra appealed.
In Sheridan v. Cassidy, handed down December 11, 2018, the COA affirmed. On the issue of the preference testimony of the 12-year-old, Chief Judge Lee’s majority opinion read:
¶21. Farra argues that the chancellor committed reversible error by refusing to allow her twelve-year-old son to state a preference. Mississippi Code Annotated section 93-11-65(1)(a) (Rev. 2013) provides that a child’s preference may be taken into account in determining child custody:
[I]f the court shall find that both parties are fit and proper persons to have custody of the children, and that either party is able to adequately provide for the care and maintenance of the children, the chancellor may consider the preference of a child of twelve (12) years of age or older as to the parent with whom the child would prefer to live in determining what would be in the best interest and welfare of the child. The chancellor shall place on the record the reason or reasons for which the award of custody was made and explain in detail why the wishes of any child were or were not honored.
(Emphasis added). “[T]he chancellor is not bound by the election of a minor child.” Floyd [v. Floyd], 949 So. 2d [26] at 30 (¶12) [(Miss. 2007)]. But, if a chancellor declines to follow a child’s preference, he must place the reasons in the record. Id.
¶22. During the hearing, Farra asked that the twelve year old be allowed to state his preference. The chancellor declined this request, stating that based upon prior testimony, he believed the child had been coached by Farra. The chancellor allowed Farra to make a proffer regarding the twelve year old’s testimony. The proffer was as follows:
The twelve year old loves his father, loves his mother, would love to spend time with his father. Would prefer to be in Arkansas where he has friends, where he has extended family, where he likes to do things in Arkansas in the proximity to other places that they can go in Arkansas, outside of Benton, Little Rock, etc. And all of the things that are available there that are not in Oxford. . . . He seems to think that there is a lot of stuff to do around Arkansas that is not available here.
¶23. In his Albright analysis, the chancellor stated that he did not allow the child to testify because he had concerns that Farra had coached the child on what to say. The chancellor further stated that although this child wanted to live with Farra (based upon the proffer), “the preference of the child in this situation [did] not have much bearing on the Court with all of the factors that I have gone over thus far.” Considering that the majority of the Albright factors favored James, we find no abuse of discretion in this instance. This issue is without merit.
Affirmed on that point by the majority, but Carlton dissented, joined by Griffis and Fair, and Tindell in part:
¶27. I respectfully dissent. The chancellor abused his discretion in failing to allow the twelve-year-old son to testify regarding his preference as to custody. Anderson v. Anderson, 961 So. 2d 55, 59-60 (¶¶7-12) (Miss. Ct. App. 2007). In Anderson, this Court found that the chancery court abused its discretion in a child custody modification hearing when the chancellor failed to allow the children to testify as to their custodial preference, effectively preventing the mother from presenting her case-in-chief prior to the court entertaining the father’s motion for an involuntary dismissal under Mississippi Rule of Civil Procedure 41(b). Id.
¶28. Similarly, the chancellor’s failure to hear the testimony of the twelve-year-old child in this case not only prevented him from expressing his custodial preference, but also denied Farra the right to present her child as a witness regarding a material change in circumstances. I recognize that the version of section 93-11-65 in effect at the time Anderson was decided has since been revised to slightly weaken the child’s right to choose his custodial parent. [Fn 3] Relevant here, however, is that under either version of the statute, and under the applicable case law, a parent is entitled to present a child’s testimony regarding parental preference for custody in order to demonstrate a material change in circumstances. Anderson, 961 So. 2d at 59-60 (¶¶7-12); see also Boyd v. Boyd, 83 So. 3d 409, 418 (¶29) (Miss. Ct. App. 2011) (mother allowed to present daughter’s preference testimony).
[Fn 3] In Anderson, section 93-11-65 (Rev. 2004) provided that “any . . . child who shall have reached his twelfth birthday shall have the privilege of choosing the parent with whom he shall live.” (Emphasis added). The current statute, also in effect at the 2016 child custody modification hearing in this case, provides that if the chancellor finds the two parties fit and proper, then “the chancellor may consider the preference of a child of twelve . . . years of age or older as to the parent with whom the child would prefer to live in determining what would be in the best interest and welfare of the child.” Miss. Code Ann. § 93-11-65 (Rev. 2013)(emphasis added). The statute further provides that “[t]he chancellor shall place on the record the reason or reasons for which the award of custody was made and explain in detail why the wishes of any child were or were not honored.” Id.
¶29. In short, although under section 93-11-65 the chancellor does not have to honor the twelve-year-old child’s preference, see, e.g., Floyd, 949 So. 2d at 30 (¶12), the mother has a right to present the evidence at the custody hearing. The chancellor abused his discretion in this case by declining Farra’s request to present her twelve-year-old son’s testimony on this issue. I maintain that this case must reversed and remanded due to the chancellor’s abuse of discretion in refusing to allow the twelve-year-old son to state his preference on the record.
Here, because “a majority of the Albright factors favored” the father, the majority found no error.” That won’t always be the case, however. It’s not a good idea for a judge to curtail a party’s proof without overwhelming justification. I think this was a borderline situation; the judge found the child’s credibility dubious and did not believe it was in the child’s best interest to testify.
My opinion is that a Jethrow examination substantiating those conclusions would have made the judge’s ruling airtight.
And what about the judge’s ruling that the two children were not allowed to testify on the merits? You’ll have to wait until tomorrow.
A Totality of Circumstances Case
January 16, 2019 § Leave a comment
Modification of custody may be based on a finding of changed circumstances that arises from a totality of the circumstances in which the child is living.
That is what happened in the case of Farra Sheridan in which the chancellor modified custody from her to her ex-husband, James Cassidy, based on multiple factors. Unhappy with the trial judge’s decision, Farra appealed.
In Sheridan v. Cassidy, a December 11, 2018, decision, the COA affirmed. Chief Judge Lee wrote the majority opinion:
¶10. “[I]n modification cases, as in original awards of custody, we never depart from our polestar consideration: the best interest and welfare of the child.” Johnson v. Gray, 859 So. 2d 1006, 1013 (¶33) (Miss. 2003) (internal quotation marks omitted). However, modification issues are different from original custody determinations. In order to succeed on a request for modification, “the non-custodial party must prove: (1) that a substantial change in circumstances has transpired since issuance of the custody decree; (2) that this change adversely affects the child’s welfare; and (3) that the child’s best interests mandate a change of custody.” Mabus v. Mabus, 847 So. 2d 815, 818 (¶8) (Miss. 2003). In Riley v. Doerner,
677 So. 2d 740, 744 (Miss. 1996), the supreme court held:
[W]here a child living in a custodial environment clearly adverse to the child’s best interest, somehow appears to remain unscarred by his or her surroundings, the chancellor is not precluded from removing the child for placement in a healthier environment. . . . A child’s resilience and ability to cope with difficult circumstances should not serve to shackle the child to an unhealthy home, especially when a healthier one beckons.
¶11. The chancellor found the following amounted to a material change in circumstances: Farra’s involvement with a married man; her numerous violations of the PSA, including allowing her boyfriend to spend the night while the children were present; her decision to abuse alcohol while taking prescription medications; her poor financial decisions; her refusal to co-parent with James; her inciting the children to access private information on James’s electronic devices; the children’s school absences and tardies related to weekend trips to Arkansas; the children’s living situation while visiting Arkansas; and issues with one child’s failure to complete school assignments. The chancellor also had concerns about Farra’s credibility.
¶12. We cannot find that the chancellor’s findings regarding a material change in circumstances were manifestly wrong or clearly erroneous …
I include this case only to illustrate for you how a chancellor may view the living situation of the custodial parent, and how Riley v. Doerner may come into play.
The Tie that Affirms
January 15, 2019 § Leave a comment
It’s not often that an appellate case ends in a tie, but it does happen every now and then.
It happened in a recent COA case, Bounds v. Benson, et al., decided by the court on December 11, 2018.
Footnote 1 of the court’s opinion sets the stage:
Six judges of this Court recused themselves from participation in this case. Because a quorum of six judges is required to reach a decision, this Court asked the Chief Justice of the Mississippi Supreme Court to appoint two special judges to participate in the decision of this appeal pursuant to Mississippi Code Annotated section 9-1-105(1) (Rev. 2014). By order entered on July 27, 2018, the Chief Justice appointed Senior Status Judge Larry E. Roberts and Senior Status Judge William E. Gowan to serve as special judges for this case, including any motion for rehearing.
Griffis, Wilson, Westbrooks, and Tindell stuck around to participate. That means that Fair, Carlton, Lee, Greenlee, Barnes, and Irving bailed.
So the learned remnant of the COA convened, along with their special appointees, numbering six in all, and here is the entire per curiam opinion documenting what transpired:
¶1. The judgment of the Lafayette County Chancery Court is affirmed by an evenly divided Court. See Wise v. Valley Bank, 861 So. 2d 1029, 1033 (¶10) (Miss. 2003) (“We hold that when this Court is evenly divided, the order or judgment of the court from which the appeal is taken must be affirmed.”).
Yes, the lone footnote is longer than the opinion.
No Alimony for You
January 14, 2019 § Leave a comment
Robert Culumber was granted a divorce from his wife, Toni, on the grounds of habitual cruel and inhuman treatment and habitual drunkenness. They had separated after only 13 months together. The chancellor found that Toni was not entitled to alimony. Toni appealed both the granting of the divorce and the denial of alimony.
In the case of Culumber v. Culumber, handed down December 4, 2018, the COA affirmed on all issues. Chief Judge Lee wrote for the unanimous court (Tindell not participating) on the alimony issue:
¶28. Finally, Toni argues that in the event that the divorce was properly granted, then the chancery court improperly denied Toni’s request for rehabilitative alimony. Toni alleges that even though the marriage was short, she is entitled to rehabilitative alimony payments because Robert paid all the bills and expenses in the marriage and that she needs assistance to become self supporting after the marriage.
¶29. We first note that alimony is considered only if after equitable division, one party is left with a deficit. Carney v. Carney, 201 So. 3d 432, 440 (¶28) (Miss. 2016). “The decision of whether to award alimony, and if so, what amount, is left to the chancellor’s discretion.” Hearn v. Hearn, 191 So. 3d 129, 132 (¶10) (Miss. Ct. App. 2016). When determining whether to award alimony, the chancellor is to consider the Armstrong factors:
(1) the income and expenses of the parties; (2) the health and earning capacities of the parties; (3) the needs of each party; (4) the obligations and assets of each party; (5) the length of the marriage; (6) the presence or absence of minor children in the home, which may require that one or both of the parties either pay, or personally provide, child care; (7) the age of the parties; (8) the standard of living of the parties, both during the marriage and at the time of the support determination; (9) the tax consequences of the spousal support order; (10) fault or misconduct; (11) wasteful dissipation of assets by either party; or (12) any other factor deemed by the court to be “just and equitable” in connection with the setting of spousal support.
Larson v. Larson, 192 So. 3d 1137, 1142 (¶12) (Miss. Ct. App. 2016) (citing Armstrong v. Armstrong, 618 So. 2d 1278, 1280 (Miss. 1993)).
¶30. In regard to the type of alimony Toni argues she is entitled to, we note that rehabilitative alimony is “an equitable mechanism which allows a party needing assistance to become self-supporting without becoming destitute in the interim.” Serio v. Serio, 203 So. 3d 24, 30 (¶17) (Miss. Ct. App. 2016) (quoting Lauro v. Lauro, 847 So. 2d 843, 849 (¶15) (Miss. 2003)). It is “awarded to parties who have put their career on hold while taking care of the marital home.” Id. “Rehabilitative alimony allows the party to get back into the working world in order to become self-sufficient.” Id.
¶31. The chancellor stated that there was no basis for alimony. Toni alleges that the chancellor placed too much emphasis on the length of the marriage and did not properly consider the other factors. The record indicates otherwise. As the chancellor noted, Toni was not working at all when she came into the marriage. Additionally, she brought approximately $30,000 of debt into the marriage which Robert paid off in full. It is true, as the chancellor noted, that the marriage was very short—barely one year. The parties had no children. Per the chancellor’s findings, Toni was “actually better off by virtue of the marriage in terms of her education, having her student loan paid off and other things to help her further her career, rather than lose it.” Career wise, Toni was relatively young—being in her late thirties, while Robert was approaching retirement—being in his late fifties. In December 2013, Toni became employed, making around $38,000, and this employment continued at the time of trial. Robert paid all of the bills and expenses during the short-term marriage and assumed responsibility for all marital debt. Toni received payment for her
equitable share of marital assets in the amount of $13,442.00. As we now affirm, the chancellor found Toni at fault in the marriage on grounds of habitual cruel and inhuman treatment and habitual drunkenness. We do not find that the chancellor abused his discretion in denying Toni an award of rehabilitative alimony. This issue is without merit.
This is not a particularly noteworthy case, except that it illustrates how a chancellor, and the COA on review, may view rehabilitative (and other forms of) alimony in light of the Armstrong factors given a set of facts such as these.
Reprise; Checklists (Again)
January 11, 2019 § Leave a comment
Reprise replays posts from the past that you may find useful today:
THE CHARM OF CHECKLISTS
May 23, 2013 § Leave a comment
For those of you who are relatively new to this blog, I want to call your attention to how crucial it is to put on proof of the various factors that have been mandated by the appellate courts to make your case. It’s a subject I bring up every now and then to make sure that lawyers know about it.
It’s what I call trial by checklist. You can think of the factors as a checklist of what you need to prove to make your case. If you fail to put on proof of the factors, as I have said here many times, you are wasting your and the court’s time, as well as your client’s money, and you are committing malpractice to boot.
Many lawyers print out these checklists and use them at trial. Please feel free to copy these checklists and use them in your trial notebooks. You’re free to copy any post for your own personal use, but not for commercial use. Lawyers have told me that they are building notebooks tabbed with various subjects and inserting copies of my posts (along with other useful material, I imagine). Good. If it improves practice and makes your (and my) job easier and more effective, I’m all for it.
Here is a list of links to the checklists I’ve posted:
Doing an accounting in a probate matter.
Income tax dependency exemption.
Modification of child support.
Periodic and rehabilitative alimony.
Up there on the right is a box labeled “Select Category.” There is a “Checklist” category that will take you to all the posts with and about checklists.
Bellum Sacrum
January 9, 2019 § Leave a comment
The concept of Holy War (bellum sacrum in Latin) came about in the 11th century to justify attacking and attempting to annihilate infidels and those whose religious beliefs were different than those of the attacking sect.
Fast forward ten centuries and today’s bellum sacrum usually involves warring factions in church disputes. You can read a couple of posts dealing with similar issues here and here.
The latest to come wafting down from the appellate stratosphere involved Jacob Chapel MB Church, which found itself divided into two factions after its pastor died in December, 2015. One faction was headed by Richard Eskridge, a deacon of the church. The other was led by Louella Peacock, the church’s secretary/treasurer. The depository bank interpled the church’s accounts in chancery and summoned the church. Peacock’s group answered first, claiming the funds, followed by Eskridge’s faction, and the issue was joined. The funds were deposited into the registry of the court.
Eskridge claimed that Brenda Bowie had been elected and installed as the new pastor. Peacock replied that the election was not done according to church by-laws, and that the membership had voted to remove both Bowie and Eskridge from leadership roles in the church.
The chancellor ordered mediation to be conducted by the SCBA, a local Baptist Association, and that body facilitated a new pastoral and leadership election according to church by-laws. That action resulted in election of Kenneth Wraggs as pastor and Betty Quinn as treasurer. The Association recommended adoption of the action by the chancellor, which she did. Eskridge appealed, claiming that the chancellor erred in ordering mediation, in relying on the Association’s findings and recommendations, and in not making findings of fact and conclusions of law.
The COA affirmed in Eskridge v. Peacock, decided December 4, 2018. Chief Judge Lee wrote for the unanimous court:
¶6. Eskridge first argues that the chancellor’s decision to appoint mediators was premature. Eskridge claims that the church had established by-laws for selecting a new pastor and had the by-laws been followed, the chancellor would not have needed to appoint mediators. Eskridge also alleges that the “mediators had their own agenda and had no direction from the Court.” [Fn 1]
[Fn 1] According to Eskridge, the church was not a member of the SCBA and as a result, the mediators lacked authority over the church. During the hearing, however, two people testified that the church was a member of the [Association].
¶7. As our supreme court has stated, the “court’s jurisdiction is limited to purely secular issues, and the court must not be involved in ecclesiastical issues.” [Pilgrim Rest Missionary Baptist Church ex rel Bd. of Deacons v. Wallace, 835 So.2d 67,] at 72 (¶11) [(Miss. 2003)] … . In Pilgrim Rest, the church did not have clear by-laws, so the chancellor established a procedure for the church members to vote on whether to retain the current pastor. Id. The supreme court later stated that “Pilgrim Rest represents a narrow exception to the longstanding practice of this Court to refuse to involve itself in ecclesiastical matters.” Greater Fairview Missionary Baptist Church v. Hollins, 160 So. 3d 223, 231 (¶29) (Miss. 2015). Unlike this case, Hollins involved a pastor who sought a temporary restraining order (TRO) after his congregation voted to terminate his employment. Id. at 233 (¶33). There, the chancellor issued the TRO, vacated the church’s vote of termination, and ordered the church to hold another vote. Id. The supreme court reversed, holding that “a pastor who is unhappy about being terminated by a church simply does not present a secular controversy.” Id.
¶8. This case is similar to Pilgrim Rest, not Hollins. The chancellor did not rule on who was entitled to be the new pastor. Instead, because the two groups were at odds and arguing over the interpled funds, the chancellor appointed mediators to oversee the election of the new pastor. At a hearing on the matter, the chancellor stated that “whatever [your] rules and regulations and by-laws are, they’re going to be followed.” And according to the church’s minutes from the business meeting, the “election was carried out in a fair and proper way and in accordance with the [church’s] by-laws as well as in accordance with the policies and procedures of the [SCBA] as indicated by” the moderators.
¶9. In this instance, we cannot find the “chancellor overstepped her bounds of jurisdiction in ordering an election when doing so was secular in purpose and sanctioned by other jurisdictions.” Pilgrim Rest, 835 So. 2d at 72 (¶11) (citations omitted). This issue is without merit.
As for the mediator’s findings, the court said this:
¶10. Eskridge next argues that the chancellor’s “ruling was based solely on the decision of the court-selected mediators who failed to follow the by-laws of the church.” Eskridge further contends that the mediators failed to determine whether the members who voted during mediation were members of the church at the time of Reverend White’s death.
¶11. Eskridge, however, has failed to show that the by-laws were not followed. In fact, as previously stated, the church minutes indicated that the by-laws were followed during the election process. The supreme court’s conclusion in Pilgrim Rest is applicable here: “There is absolutely no indication of [the chancellor] imposing an ecclesiastical dictate on the congregation of Pilgrim Rest. On the contrary, she merely sought to establish a procedure in which the majority of the Church could be heard thereby preserving the peace.” Id. at 73-74 (¶14). This issue is without merit.
And addressing the argument that the chancellor erred in not making findings:
¶12. Eskridge finally contends that the chancellor failed to make findings of fact and conclusions of law. Here, much of Eskridge’s argument is simply a reiteration of his previous arguments, which we found meritless. Eskridge does argue that the “the court also opines that the election was fair, but there is no indication of the method of the voting or the results.” The chancellor relied upon the findings presented by the SCBA and the minutes of the church’s business meeting—the meeting at which the election occurred.
¶13. Uniform Chancery Court Rule 4.01 states that “[i]n all actions where it is required or requested, pursuant to M.R.C.P. 52, [Fn 2] the Chancellor shall find the facts specially and state separately his conclusions of law thereon.” Eskridge never asked the chancellor to make findings of facts and conclusions of law. And he has not shown that the chancellor was required to do so in this instance. This issue is without merit.
[Fn 2] Mississippi Rule of Civil Procedure 52(a) states that: “In all actions tried upon the facts without a jury the court may, and shall upon the request of any party to the suit or when required by these rules, find the facts specially and state separately its conclusions of law
thereon and judgment shall be entered accordingly.”
An observation or two or more:
- Where to draw the Pilgrim Rest line can be tricky. Here the chancellor merely employed a procedure to ensure that the church’s own by-laws were followed. The result was an election that did follow the by-laws.
- If you want the judge to make detailed findings you have to ask the judge to do that very thing.
- I don’t get the argument that the SCBA was without authority to act as mediator because the church was not a member of the association. There is usually no relationship between a court-appointed mediator and the parties in mediation. It seems to me that the chancellor could have appointed a neutral party such as an attorney or CPA, or even the local Presbyterian Association to mediate.
Separate Summons for Contempt in a Divorce Case
January 8, 2019 § Leave a comment
Note: this post was edited at 11:00, am to correct a misstatement in the first paragraph that contempt is a R81 matter, not a R4 matter as originally posted. Sorry for the error
It’s a fairly common occurrence that a counterclaim for contempt is filed in a divorce action, or a motion for adjudication of contempt is filed in a pending divorce. As we all know, divorce is a R4 matter, and contempt is a R81 matter, so is new, or different, process required to proceed on the contempt claim?
Here’s what the COA said in Thornton v. Thornton, an August 14, 2018, decision:
¶22. Additionally, regarding Brenda’s assignment of error attacking the chancellor’s ruling on her petition for contempt, we recognize that “[a]lthough contempt proceedings in divorce cases often are filed in the same cause number and proceed with the underlying divorce case, they are held to be separate actions, requiring new and special summons under Mississippi Rules of Civil Procedure 81.” Shavers v. Shavers, 982 So. 2d 397, 402 (¶25) (Miss. 2008). We therefore find that Brenda’s argument regarding the contempt proceedings is not properly before this Court because “the contempt action [is] separate from the divorce judgment cited in the notice of appeal.” Williamson v. Williamson, 81 So. 3d 262, 277 (¶34) (Miss. Ct. App. 2012). We now turn to address Brenda’s other issues before us on appeal.
Shaver is a tad peculiar because it involved a removal to federal court followed by a remand back to state court, and a question about what effect that had on state court jurisdiction. Williamson involves a post-appeal contempt in which the COA ruled that the contempt action was no part of the divorce that had been appealed.
Shaver does cite Sanghi v. Sanghi, 759 So.2d 1250, 1255 (Miss. App. 2000), in which the parties were engaged in a long-dormant divorce case. Mrs. Sanghi filed a pleading to have Dr. Sanhi held in contempt for failure to pay child support, and he was served by certified mail, since he was already before the court in the divorce action via R4 summons. Here is the COA’s discussion:
¶ 24. This takes us full circle back to the question of whether Dr. Sanghi received sufficient notice of the April 13 hearing that underlies the actions at the July 2 hearing. To reiterate, Dr. Sanghi received notice of the first hearing that had been scheduled for March 9. That notice was not a summons sent by certified mail under Rule 4(c)(5), though the “motions” were sent by that procedure. Instead it was a “Notice of Court Setting” sent first class mail by the court administrator. This notice made Dr. Sanghi aware of the need to seek a postponement and presumably also to seek counsel to initiate the removal. The result of the requested delay was that the court administrator then mailed a notice on February 16, 1998, that the new hearing would be on April 13, 1998. There is nothing in the record explicitly confirming that Dr. Sanghi received the second notice, but he does state in his brief that the April 13 date was set at his request. There are several indications in the record and briefs but no direct proof that he was aware of the April 13 setting from the time that he sought a postponement of the March 9 hearing, but he just did not appear. Again, the inadequacy of the record is at the peril of the appellant Dr. Sanghi, so we proceed under the stated assumptions.
¶ 25. We have just described what was done. We now look at what should have been done. Whether the judgment is valid depends largely on the nature of the defects that occurred.
¶ 26. Rule 81(d)(3) requires that a petition or complaint be filed to modify or enforce child support and alimony judgments or to seek contempt. The mislabeling of the initiating pleading is a matter of form and would not by itself create a lack of authority for the court to act.
¶ 27. After the petition is filed, a summons is to issue notifying the respondent of the time and place for an appearance. If an answer to the petition is required, the notice should state that as well. M.R.C.P. 81(d)(4) & (5). Nothing is said about the available means of service, but the rule provides that the procedures “control to the extent that they may be in conflict with any other provision of these rules.” M.R.C.P. 81(d). The implication is that where Rule 81 does not even address a necessary procedure covered in the general rules, then the general provisions apply. Since 81 does not speak to the means for service of summons, it cannot conflict with the general rules that do. Not to be overlooked, though, is that Rule 81 controls the content of the summons. Service on an out-of-state defendant cannot be completed under Rule 4 by sending a summons by regular mail. Had a return envelope to send an acknowledgment of receipt been included and then utilized by Dr. Sanghi, that would have sufficed. M.R.C.P. 4(c)(3)(A). Certified mail service on an out-of-state defendant also is adequate, if the receipt is returned. M.R.C.P. 4(c)(5).
¶ 28. The notice of the April 13 hearing was not a Rule 81(d)(5) summons, though it provided most of the relevant information. The only required information under the Rule is that a party is to be told the time and place for the hearing and that no answer is needed. M.R.C.P. 81(d)(4) & (d)(5). The sample form that sets out the summons also indicates that the case name is to be shown, the suit number, the name of the person being served, and that failure to appear may result in a judgment with monetary or other consequences; the petition that initiated the action also is to be attached. M.R.C.P. Form 1D. These forms are not mandatory, but use of them removes any question of sufficiency under the Rules. M.R.C.P. 84. The notice sent by the court administrator contained all of the information that Form 1D would have contained, except that there was no statement regarding the need for a written response nor any language commanding attendance or warning that failure to appear could have significant consequences. The same day or perhaps the day before, the three “motions” were separately sent by certified mail and received by Dr. Sanghi.
Most often these matters get tried by consent, so there is a waiver of the objection and the parties resolve it that way.
But when you are handling a R4 case in which R81 issues later arise, especially against a pro se litigant, I strongly encourage you to issue that extra R81 summons. It’s worth the extra cost, time and effort.
