How Would You Change Rule 81?

February 8, 2019 § 4 Comments

If you were the Autocrat of Mississippi Chancery jurisprudence, what changes, if any, would you make to R81 to improve its functionality?

The Supreme Court’s Advisory Committee on Civil Rules is studying the entire MRCP, at the request of the court, to update and recommend changes. R81 will be coming up soon.

Please leave a comment. I will pass all of them along to the committee, although I will only vouch for the ones with which I agree.

This is your chance to have some input.

 

Rules for Comment

April 8, 2015 § 3 Comments

There are some proposed rule changes up for comment at the MSSC web site. You can access them at this link.

The changes would be to MRCP 16, primarily, with a couple of affected words fixed in R26. The other change is to the Circuit and County Court Rules.

The rule change is designed, as I understand it, to alleviate the lengthy waits that litigators experience in circuit court.

While the changes appear to be a probably effective one-size-fits-all solution to the kind of litigation involved that transpires in circuit court, I think if they were rigidly applied in chancery, it would actually have the effect of slowing down proceedings and clogging up the docket. I have been using scheduling orders for years, and our deadlines are much tighter than these proposed.

The rule changes specifically do not apply to R81 matters, which is a good thing. But divorces are R4 matters, although there is that language that says the MRCP has limited applicability to Title 93 matters, which includes divorce.

Anyway, the MSSC invites comment. You are cordially invited to the discussion. Take advantage of the opportunity.

Does MRCP 4(h) Apply to R81 Cases?

October 21, 2014 § 2 Comments

R4(h) states:

If a service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint and the party on whose behalf such service was required cannot show good cause why such service was not made within that period, the action shall be dismissed as to that defendant without prejudice upon the court’s own initiative with notice to such party or upon motion.

In the case of Roberts v. Lopez, decided September 23, 2014, the COA said this:

[¶9]  Notwithstanding the provisions of Rule 4(h), Rule 81(a)(9) provides, in pertinent part:

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 933 of the Mississippi Code of 1972.

(Emphasis added).

¶10. Rule 81(d)(2) provides that modification of custody matters “shall be triable 7 days after completion of process in any manner other than by publication . . . .” Rule 81(d)(5) provides in part:

Upon the filing of any action or matter listed in subparagraphs (1) and (2) [of Rule 81(d)], summons shall issue commanding the defendant or respondent to appear and defend at a time and place, either in term time or vacation, at which the same shall be heard. Said time and place shall be set by special order, general order[,] or rule of court.

David was served with a Rule 81 summons commanding him to appear at the August 24, 2012 hearing. Therefore, it is of no moment that Liza’s initial complaint and amended complaint, which sought to set aside or modify previous custody orders, were filed more than 120 days prior to David being served with the Rule 81 summons. The modification of custody orders that Liza sought was governed by Rule 81(d), not Rule 4(h) as David contends …

This is a novel rationale. The court did not cite, nor have I been able to find, a prior case that supports this assertion. There is nothing in the language of R4(h) that excepts R81 matters. I had always understood the limitation language of R81(a) as applying to statutory provisions that set out specific deadlines such as some estate and guardianship matters.

As a practical matter, R4(h) is usually applied in circuit court actions where its application has statute-of-limitations ramifications. In chancery, since statutes of limitation seldom apply, the 4(h) dismissal is without prejudice, and one can simply shrug it off and refile. David, in his case, tried to use 4(h) as a sword to set aside the trial court’s judgment. He failed, though, based on the court’s reasoning above, but most importantly due to this:

Moreover, David appeared and participated generally in the August 24, 2012 hearing. So even if process were defective, which it was not, David waived the defect by his appearance and general participation in the hearing. See Isom v. Jernigan, 840 So. 2d 104, 107 (¶9) (Miss. 2003). Thus, this issue is without merit.

As we all know, a voluntary general appearance waives any objection to personal jurisdiction.

So, does Roberts v. Lopez establish the rule that R4(h) simply does not apply to R81 matters based on the language quoted above? I think I’m going to treat that language as dicta, since the dispositive fact here was that David waived the objection. It was unnecessary for the court to go into that R4 vs. R81 analysis when all that had to be said was that David’s general appearance subjected him to personal jurisdiction regardless of any defect of process. Your chancellor may see it differently.

Rule 81 Confounded

July 17, 2013 § 10 Comments

This is my 40th year in the law. The past 6 1/2 years have been on the bench, dealing exclusively with chancery matters. Before that, 33 years in practice, primarily in chancery. In my 39 1/2 years of experience, 31 have been under the MRCP.

Until yesterday, with one exception, have I ever seen MRCP 81 applied as it was yesterday in Curry v. Frazier, decided by the COA.

The one exception is Pearson v. Browning, decided last Fall.

If these two cases are good law, and they are not anomalous, you will have to drastically change the way you do process in counterclaims in chancery court. In my opinion, together both cases say that once the plaintiff has submitted himself to the jurisdiction of the court by filing a pleading, you must still get jurisdiction by R81 process over him in order to pursue your counterclaim. Yes, that’s jurisdiction times two.

Other chancellors I have talked to are scratching their heads. This is a new way to go at jurisdiction in chancery. Or is it? Has it been your experience that R81 works this way?

I wonder whether the COA has an agenda here.

 

NOTICE FOR A DAY CERTAIN

May 2, 2013 § Leave a comment

Although the COA decision in In the Matter of Transfer of Structured Settlement Payment Rights by Benny Ray Saucier, handed down March 26, 2013, nominally dealt with the notice provisions of the Mississippi Structured Settlement Protection Act (MSSPA), MCA 11-57-1 through 15, it punctuates an important point about notice and process that applies in other cases as well.

The statutes in this case specify certain notices that must be given to “all interested parties”:

  • Section 11-57-11(2) states that, “Not less than twenty (20) days prior to the scheduled hearing on any application for approval of a transfer of structured settlement payment rights under Section 11-57-7, the transferee shall file with the court . . . and serve on all interested parties a notice of the proposed transfer and the application for its authorization … “
  • And subsection (f) states that, “Notification of the time and place of the hearing and notification of the manner in which and the time by which written responses to the application must be filed which shall be not less than fifteen (15) days after service of the transferee’s notice in order to be considered by the court or responsible administrative authority.”

The statute, however, does not spell out what form of process or notice should accomplish what the statute mandates.

Here’s what the COA said in the majority opinion by Judge Griffis:

¶68. The MSSPA does not specify the appropriate notice that is required section 11-57-11(2). Because the MSSPA requires court approval, “[a] civil action is commenced by filing a complaint with the court.” M.R.C.P. 3(a). To obtain personal jurisdiction over an interested party, service of process is required consistent with either Rule 4 or Rule 81 of the Mississippi Rules of Civil Procedure. Although the MSSPA is not included among the actions subject to Rule 81(a), reading section 11-5-11(2), we interpret notice to require a return for a date certain similar to the procedure authorized in Rule 81(d)(5). At a minimum, once the original notice is provided to an interested party, notice of subsequent proceedings must comply with Mississippi Rule of Civil Procedure 5.

So, in these cases where a statute provides notice for a given period, and the matter is not among those enumerated in MRCP 81(d)(1) and (2), your safest course is to issue process to a day certain under MRCP 81(d)(5). In my experience this is exactly what practitioners and judges have been doing since the earliest days of the MRCP, but it is nice to see the appellate court’s stamp of approval on the practice, since it makes complete sense.

THE BITE OF PAST-DUE CHILD SUPPORT

April 16, 2013 § 1 Comment

MCA 85-3-4 deals with execution of garnishments in Mississippi. Most garnishments are limited to 25% of “disposible income,” as defined in federal law. But if the judgment is for past-due child support, the garnishment may be as much as 50-65% of disposible income. That’s quite a bite.

In the MSSC case of Reasor v. Jordan, decided April 4, 2013, Frankie Reasor had gotten custody of his daughter from his ex-wife, Rose Jordan, in a modification case. He was also tagged with a hefty $24,000 judgment for past-due child support and unpaid medical expenses  of the child that predated the modification. The chancellor popped Frankie with a 55% garnishment, and, both impoverished and aggrieved, he appealed.

Here’s how Justice King’s majority opinion addressed the issue:

¶27. The Court has addressed this issue previously in Sorrell v. Borner, 593 So. 2d 986 (Miss. 1992). In Sorrell, the parents divorced, the mother was awarded custody, and the father was ordered to pay child support. Id. at 986. Later, the father sought a change in custody. Id. In response, the mother filed a counterclaim for past-due child support. Id. The chancellor awarded the father custody but held him in arrears, entering a judgment in favor of the mother for back child support. Id. The mother obtained a sixty-five percent garnishment on the father’s wages. Id. at 988. Aggrieved, the father filed a petition to modify the order (by offsetting his arrearage by the mother’s child-support obligation), and the chancellor denied his petition. Id. at 986-87.

¶28. On appeal, the father challenged the order, arguing that the garnishment should have been limited to twenty-five percent. Id. at 988. Although the father failed to attack the garnishment in his pleadings, the Court noted that the father made an oral objection at the hearing. Id. at 989. Reviewing the applicable statutes, the Court determined that:

The judgment awarded was for past due child-support, but [the mother] no longer had custody of the children. In our opinion, the legislature did not contemplate the exception language to be used in this situation, and [we] are of the opinion that the restriction listed in § 85-3-4(2)(a) should apply to the garnishment here.

Id. at 988. Accordingly, the court reversed and remanded the chancellor’s judgment. Id. at 988-89.

¶29. Applying the Court’s reasoning in Sorrell, the withholding restriction in Section 85-3-4(2)(a)(i) should apply to Reasor as well. Like Sorrell, Reasor complained about the amount of the garnishment during his hearing. Also, when the judgment was awarded for past-due child support, Jordan no longer had custody of the child. Thus, the chancellor erred by ordering a fifty-five-percent withholding. Instead, the garnishment should have been limited to twenty-five percent of Reasor’s disposable income. Accordingly, we vacate the order and remand for a proper determination of withholding.

The main thing to take from this case is to be aware of the generous garnishment provisions as they relate to unpaid support. As I read the statute, they would apply not only to child support, but also to alimony.

When you read this case, look also at the MRCP 81 issues raised by the way that the original chancellor handled the case. I agree with Justice Pierce’s concurrance/dissent on this issue. R81 requires notice. I don’t agree that Mr. Reasor got proper notice in this case. Chalk this up as another case added to the confusion over how R81 works.

HOW WOULD YOU OVERHAUL MRCP 81?

January 22, 2013 § 6 Comments

Everyone who has had some experience with MRCP 81 has an opinion about it.

Most chancery lawyers and judges have come to grips with it over the years and have found ways to make it work. Some, however, have grown to hate it. Changing or eliminating the rule is a topic touched on and even seriously discussed at judges’ meetings.

If you could change Rule 81, would you? And, if so, how would you change it?

Every time I ask an opponent of the rule to catalog the objections and outline how it should be changed, I get fulmination, not recommendation. What I want to know is:

  • what do you perceive to be the problems with the rule?
  • what about it has caused you problems?
  • if it is not working in a particular district, why do you think that is?
  • if we were to eliminate the rule, how should we deal with short-notice matters like temporary hearings and the like?
  • does chancery court need its own, unique procedural rules?

There are other questions, I am sure, but those are a start.

I invite any lawyers or judges to comment on this, or, if you prefer, email me at primeauxl@yahoo.com.

This is not an idle exercise. I am on the Supreme Court Advisory Committee on Rules, and I am hearing rumblings that this is a matter that will come up for discussion soon. I would appreciate as much input as I can get. Many of you tell me you read but don’t comment. This is a time for you to have your say.

MRCP 81 NOTCHES A CURIOUS KILL

September 6, 2012 § 3 Comments

The latest case to fall prey to the predatory MRCP 81 is Pearson v. Browning, decided September 4, 2012, by the COA. We last looked at the vicissitudes of the rule in a post about Brown, et al v. Tate.

The case that brought Pearson v. Browning to the COA began when Dennis Pearson filed a pro se pleading against his ex-wife, Patricia Browning, seeking modification and contempt. Although the procedural history is not entirely clear, it appears that Patricia filed a counterclaim-like pleading charging Dennis with contempt. Both matters came up for hearing on February 2, 2009, when dennis failed to appear, and the chancellor dismissed his claims. The judge ordered that Patricia’s claims be reset for hearing for August 6, 2009. On or about June 10, 2012, however, the court administrator gave notice that the date was again reset, for November 3, 2010. There is no court order setting the November date.

Patricia’s attorney sent Dennis a letter, dated October 15, 2010, notifying him of the November 3, 2010, trial date. Dennis testified that he did not receive it until November 1, 2010, and he filed a letter complaining of the short notice.

On November 3, 2010, Dennis appeared personally pro se and protested the lack of time to prepare his defense and lack of notice of what he was being charged with. He moved for a continuance. The judge denied his motion and pressed on to hearing. On November 18, 2010, the chancellor entered a judgment against Dennis in favor of Patricia in the sum of $53,528.22.

The COA reversed. Judge Griffis’s opinion spells out the basic law of MRCP 81:

¶7. In this case, jurisdiction is governed by Mississippi Rule of Civil Procedure 81(d)(2), because it includes the “modification or enforcement of custody, support, and alimony judgments” and “contempt.”

¶8. A Rule 81 summons is necessary to begin dormant domestic actions listed in Rule 81(d). A Rule 81 summons is not a Rule 4 summons. See M.R.C.P. 4. A Rule 81 summons gives notice to the defendant of the date, time, and place to appear. It does not require a response. A Rule 4 summons requires a written response in thirty days. A Rule 4 summons and a Rule 5 notice have no effect with Rule 81 matters. Sanghi [v. Sanghi], 759 So. 2d at 1253 (¶¶11, 14) (citing Leaf River Forest Prods., Inc., 661 So. 2d 188, 194 (Miss. 1995); Powell v. Powell, 644 So. 2d 269, 273-74 (Miss. 1994)); see M.R.C.P. 5.

¶9. In a matter that requires a Rule 81 summons and does not use a Rule 81 summons, the resulting judgment is void because it is made without jurisdiction over the parties. See Bryant, Inc. v. Walters, 493 So. 2d 933, 938 (Miss. 1986); Duvall v. Duvall, 224 Miss. 546, 555, 80 So. 2d 752, 755 (1955); Roberts v. Roberts, 866 So. 2d 474, 476-77 (¶¶7-8) (Miss. Ct. App. 2003). If an action under Rule 81(d)(1) or (2) “is not heard on the day set for hearing, it may by order signed on that day be continued to a later day for hearing without additional summons on the defendant or respondent.” M.R.C.P. 81(d)(5). For no additional Rule 81 summons to be required, the order that continues the trial date must be signed on or before the original trial date.

¶10. In this appeal, Pearson argues that Browning failed to comply with Rule 81(d)(5). Specifically, Pearson argues that jurisdiction lapsed because a court administrator’s notice changed the trial date of January 22, 2008 to January 23, 2008; an order dated October 24, 2008 changed the trial date of September 18, 2008 to February 2, 2009; a court administrator’s notice dated June 11, 2010 changed the trial date of August 6, 2009 to November 3, 2010; and Pearson received a letter on November 1, 2010 about the November 3, 2010 trial.

¶11. Our review is limited to events that occurred after February 2, 2009. Because Pearson was the plaintiff prior to February 2, 2009, he cannot properly raise a jurisdictional issue before that date. By the fact that a plaintiff brought his claim, he consents to personal jurisdiction in that court. Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 775, 779 (1984).

¶12. Rule 81(d)(5) governs the need for additional summons on the defendant. Before February 2, 2009, Pearson simply was not entitled to a Rule 81 summons because he was the plaintiff.

¶13. On February 2, 2009, the chancery court dismissed all of Pearson’s claims with prejudice. The only claims left before the court were Browning’s contempt claims against Pearson. Hence, after February 2, 2009, Pearson was no longer the plaintiff.

¶14. Whether an additional Rule 81 summons was required and, thus, whether the chancery court had jurisdiction over Pearson on November 3, 2010, depends on: (1) whether Browning’s “motion” was actually a petition for contempt; (2) whether the court administrator’s notice was sufficient to substitute for the lack of a Rule 81 summons; (3) whether Pearson’s case is similar to Bailey v. Fischer, 946 So. 2d 404 (Miss. Ct. App. 2006); and (4) whether Pearson made an appearance, thereby waiving the lack of a Rule 81 summons.

The COA concluded that Patricia’s “motion” was, in fact, a petition for contempt that required Rule 81 notice, that the court administrator’s notice was not adequate to suffice in lieu of a proper MRCP 81 summons, that Bailey is distinguishable, and that Dennis had not waived the jurisdictional issues by making a voluntary appearance. The court reversed the chancery court judgment for lack of jurisdiction.

The four bases listed above for determination of the Rule 81 issue deserve further attention in one or more future posts and will not be addressed further here.

A few observations based on the foregoing:

  • I call this case curious because, once Dennis had been properly served with the counterclaim, in most districts that I am aware of, he was only entitled from that point to Rule 5 notice. This case seems to say either that a counterclaim requires a Rule 81 process, or that one must be issued if the original plaintiff’s pleading is dismissed. I have never seen this practice in my 29 years’ experience under the MRCP. I admit that I have had trouble understanding the exact procedural chronology of this case, so the problem may be mine. But if my understanding is correct, this case is a major change in Rule 81 practice that you need to study very carefully.
  • Once again, if the matter that is the subject of your Rule 81 summons will not be heard on the day specified in the summons, you must have the court enter an order on or before (caveat … as to before, see below) the day noticed for hearing continuing the case to a specific date and time in the future.
  • Although the COA said that the case must be continued ” … on or before …” the date set in the summons, in my opinion only an agreed order of continuance dated before the summons date would be effective. If you unilaterally reset the case by order before the date set in the original summons, you are depriving the defendant of notice and the opportunity to defend.
  • As long as Dennis was in the status of a petitioner (plaintiff) who had invoked the court’s jurisdiction, he was entitled only to MRCP 5 notice; after he lost his petitioner status, he became entitled to the protection of Rule 81 notice.

As a practice matter, if you were Patricia’s lawyer, you could have avoided most of the above problems had you seen to it yourself that proper continuance orders and notices to the opposing side were presented to the judge and entered in a timely fashion. It’s your case, after all, and judges and court administrators have lots on their respective plates. As I’ve said before, judges and court personnel do their best, but the bottom line is that they are not responsible for the proper handling of your case; you are.

RULE 81 CLAIMS ANOTHER VICTIM

August 14, 2012 § 5 Comments

There are judges and lawyers who absolutely hate MRCP 81. I don’t know of anyone who really loves it. Most who don’t hate it just try to operate within its bounds, as they understand it, and go about their business.

There is a vast graveyard of legal shipwrecks on the shoals of Rule 81. The latest took a not unfamiliar, if long-delayed, route to disaster.

To make a long story short, the plaintiff filed a petition for partition in 2005, and issued MRCP 81 summons for the defendants. Some kind of proceeding took place in July after the defendants had been served, but no order was entered and no other action taken of record.

Five years later, with a different chancellor on the bench, the plaintiff awoke to the fact that the case was sitting idle. Realizing that one necessary defendant had never been served with process, the plaintiff issued process for her. She appeared in response, and the case was continued to a later date. When neither she nor any of the other defendants appeared on the later date the chancellor entered a judgment granting the plaintiff the relief he requested, a partition by sale.

The defendants filed an MRCP 59 motion arguing against the partition by sale, and complaining that they were not properly served with process. The chancellor overruled the motion, and the defendants appealed.

In Brown, et al. v. Tate, rendered August 7, 2012, the COA reversed and remanded the case because no order had been entered continuing the hearing on the the 2005 summons.

Here are a few learning points from the case you might want to consider:

  • If you continue your hearing, for whatever reason, from the date set in the MRCP 81 summons, be sure that you obtain an order of the court dated the day set for hearing in the summons, continuing it to another day certain. If you fail to do this, your process is dead, and you will have to start over.
  • If one or more defendants show up on the day set in the summons, make sure they sign off on your order of continuance, and make sure you give them a copy of the order.
  • Instead of just reciting that the case is continued to another day, include the following information in your order: (1) that all defendants were called in the courtroom and in the corridors of the court house; (2) name the defendants who did appear; (3) name the defendants who did not appear; (4) describe what actions were taken in court, if any; (5) the date, time, and place of the next hearing; (6) a statement that each defendant who appeared was provided with a copy of the order and that each understands that a judgment may be entered against them if thhey fail to appear at the next hearing; and (7) the signature of each defendant who appeared.
  • Ask the judge to add, in the continuation order, a requirement that each defendant file an answer before the date set for the continuation hearing. An answer to a Rule 81 matter is not required by the rules, but MRCP 81(d)(4) permits the court to require an answer ” … if it deems it necessary to properly develop the issues.” And “A party who fails to file an answer after being required to do so shall not be permitted to present evidence on his behalf.” By including the requirement for an answer in your continuance order, you are effectively setting up a default situation for those who do not answer.

This particular case is one that fell through the cracks and should have been scuttled by an MRCP 41(d) notice years before it resurrected itself. The doltish chancellor should have made that plaintiff’s lawyer start over when he came before the court with that old file. Oh, and lest you think I am being too harsh in referring to that judge as doltish, that judge was I.

PROCESS F*A*I*L

August 15, 2011 § Leave a comment

What difference does it make whether the other party has the right form of process if he had actual notice?

Consider the case of Clark v. Clark, 43 So.3d 496 (Miss. App. 2010). The facts are pretty straightforward:

Aileen filed for divorce from her husband Willie. She filed and had issued a Rule 81 summons for a temporary hearing and another Rule 81 summons on her complaint for divorce. Willie did not appear for the temporary hearing, and the chancellor entered a temporary order favorable to Aileen. On the date set in the summons on the complaint, Willie was again called and did not appear. The chancellor entered a judgment of divorce on July 25, 2008, awarding Aileen a divorce, custody, child support, alimony, a vehicle and a name change.

On September 23, 2008, Willie filed a motion under MRCP 60(b) to set aside the judgment, which the chancellor refused. Willie appealed.

On appeal, Willie’s sole assignment of error was that since he was not served with a Rule 4 summons on the divorce, the court lacked jurisdiction.

The COA reversed, and here are the important points:

  • MRCP 4 “provides for the means of service of the original complaint and the form of the accompanying summons.” Sanghi v. Sanghi, 759 So.2d 1250, 1253(¶ 11) (Miss. App. 2000); see also Carlisle v. Carlisle, 11 So.3d 142, 144(¶ 9) (Miss. App. 2009). “The rules on service of process are to be strictly construed. If they have not been complied with, the court is without jurisdiction unless the defendant appears of his own volition.” Kolikas v. Kolikas, 821 So.2d 874, 878(¶ 16) (Miss. App. 2002).
  • Because Rule 81(d) embodies “special rules of procedure” that only apply to the matters listed in Rules 81(d)(1)-(2), and divorce is not one of these enumerated matters, service of the complaint for divorce fall outside the scope of Rule 81. See M.R.C.P. 81(d). Thus, the general rules govern, see Sanghi, 759 So.2d at 1256(¶ 27), and Rule 4 contains the proper procedure for serving the complaint.
  • In Rule 81 matters, a Rule 81 summons must be issued; otherwise, service is defective. See, e.g., Powell v. Powell, 644 So.2d 269, 274 (Miss. 1994); Saddler v. Saddler, 556 So.2d 344, 346 (Miss. 1990); Serton v. Serton, 819 So.2d 15, 21(¶ 24) (Miss. App. 2002).
  • Actual notice does not cure defective process. See, e.g., Mosby v. Gandy, 375 So.2d 1024, 1027 (Miss. 1979). “Even if a defendant is aware of a suit, the failure to comply with rules for the service of process, coupled with the failure of the defendant voluntarily to appear, prevents a judgment from being entered against him.” Sanghi, 759.
  • Rule 4 lists the requirements for a valid summons issued under Rule 4, and provides in pertinent part: “The summons shall be dated and signed by the clerk, be under the seal of the court, contain the name of the court and the names of the parties, be directed to the defendant, state the name and address of the plaintiff’s attorney, if any, otherwise the plaintiff’s address, and the time within which these rules require the defendant to appear and defend, and shall notify him that in case of his failure to do so judgment by default will be rendered against him for the relief demanded in the complaint…. Summons served by process server shall substantially conform to Form 1A.” M.R.C.P. 4(b) (emphasis added). The summons in Form 1A informs the defendant that he or she is “required to mail or hand deliver a copy of a written response to the Complaint” to the plaintiff’s attorney within thirty days or a default judgment will be entered against the defendant. M.R.C.P.App. A. Form 1A. The form further provides that the defendant “must also file the original of [his/her] response with the [appropriate trial court clerk] within a reasonable time[.]” Id. As we have noted before, use of the sample forms is not required, but their use is good practice because it “removes any question of sufficiency [of process] under the Rules.” Sanghi, 759 So.2d at 1256(¶ 28) (citing M.R.C.P. 84).

In his opinion overruling Willie’s Rule 60(b) motion, the chancellor acknowledged that Rule 4 is the proper form of summons in a divorce case, but found that the Rule 81 summons used by Aileen for the complaint substantially conformed to Form 1A.  The summons did inform Willie that a judgment would be entered against him if he failed to appear and defend, as is required by Rule 4(b). However, the summons at issue contained substantial deviations from Rule 4. First, the Rule 81 summons stated: “You are not required to file an answer or other pleading but you may do so if you desire.” Second, the Rule 81 summons did not specify any deadline-specifically, that Willie was required to answer with a response to his wife’s attorney within thirty days. Third, the Rule 81 summons did not inform Willie that he was required to also file his answer with the chancery clerk within a reasonable time.

The COA, citing Sanghi, disagreed, finding substantial differences between Rule 4 and 81 summons, and held that failure to use the proper form of Rule 4 summons deprived the trial court of jurisdiction in the case, requiring reversal.

The COA also considered whether the resulting reversal of the trial judge’s denial of Rule 60(b) relief required setting aside the divorce, and found that it did. The court said: although “[t]he grant or denial of a 60(b) motion is generally within the discretion of the trial court, … [i]f the judgment is void, the trial court has no discretion. The court must set the void judgment aside.” Soriano v. Gillespie, 857 So.2d 64, 69-70(¶ 22) (Miss. App. 2003). A judgment is deemed void if the court rendering it lacked jurisdiction. Morrison v. DHS, 863 So.2d 948, 952(¶ 13) (Miss. 2004). A judgment is void “if the court that rendered it lacked jurisdiction of the subject matter, or of the parties, or if it acted in a manner inconsistent with due process of law.” Id. (citation omitted).

The court also cited Kolikas at 879 for the proposition that the defendant is under no duty to notice what is filed in court against him unless he is properly served according to the rules, and the rules are to be strictly construed and applied as to process. It does not matter that the defendant knew that there was a lawsuit pending against him if he was not effectively served with process and notice.

Oddly — at least I find it odd — the court left standing the judge’s temporary judgment on the basis that Aileen had properly gotten process under Rule 81, and that the trial court did have personal jurisdiction over Willie. I say this is an oddity because in this district we have followed the principle that temporary relief is proper only in the context of a fault-based divorce action. I have never heard of a temporary action proceeding on its own, unattached, so to speak, to an underlying divorce action in which the trial court has personal jurisdiction over the defendant. But that is what resulted here. The COA opinion stated:

Finally, Willie claims that Aileen’s motion for temporary support was “nothing more than a derivative action” of the divorce complaint, and, therefore, the court’s lack of jurisdiction over the divorce complaint extends to the motion for temporary relief.

Although Mississippi appellate courts are generally without jurisdiction to hear direct appeals from temporary orders, Michael v. Michael, 650 So.2d 469, 471 (Miss. 1995) (citing Miss.Code Ann. § 11-51-3 (Supp.1993)), the denial of a Rule 60(b) motion is a final judgment that is reviewable. Sanghi, 759 So.2d at 1255(¶ 22).

As Rule 81 makes clear, an action for temporary relief in divorce and an action for divorce are two separate matters. Each requires the issuance of a different form of summons-the former requiring a Rule 81 summons and the latter requiring a Rule 4 summons. We simply do not see how improper service in the divorce action affects the chancery court’s jurisdiction to hear temporary matters. We, therefore, reject the notion that failure to achieve proper service in the divorce action renders the action for temporary relief void. Furthermore, we note that a separate Rule 81 summons was properly issued in Aileen’s action for temporary support, thus giving the chancellor jurisdiction to award temporary relief. This issue is without merit.

Another interesting wrinkle in this case is Judge Griffis’s specially concurring opinion where he says that ” … Rule 81 is a treacherous and often misunderstood rule.” He points out that parties on appeal have ” … fallen prey to the hidden tentacles …” of the rule and urges the Supreme Court to revise it.

I have heard other chancellors at judges’ meetings complain about Rule 81, but we really have not had any problems in this district understanding and following it (knock on wood) to this point. I would not be against eliminating Rule 81 if we could modify Rule 4 to create a short-notice procedure in certain actions unique to chancery such as temporary matters, contempts and certain probate proceedings where notice is required.

The moral of the Clark story is to comply strictly with the rules governing process or be prepared to clean up the mess that will follow.

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