Divorce Defendant in Default
December 4, 2014 § Leave a comment
Larry Bolivar filed for divorce from his wife, Teresa, on February 19, 2013. She was served with process on March 21, 2013. The R4 process was in the usual form that included the admonishment to file an answer within 30 days, or the relief requested could be granted.
On May 8, 2013, Teresa had filed no response to the divorce complaint, and Larry appeared in court and presented his case. The chancellor granted him a divorce from her.
In June, 2013, Teresa filed a motion to set aside the divorce, an answer denying the allegations of the complaint, and a counterclaim for divorce. In her motion to set aside the divorce, she complained that she had not been properly served with a summons or notice of hearing for the May 8, 2013, proceeding.
At the hearing on her motion to set aside the divorce judgment, Teresa acknowledged that she had been served with process on the complaint, and the judge found on that point that she had been served with process. As to her argument that she should have been given notice of the May hearing, the chancellor denied the motion on the basis that her failure to file an answer precluded her from asserting that claim. Teresa appealed.
On appeal, Teresa raised for the first time the issue whether Larry should have had her declared to be in default per MRCP 55 before proceeding against her.
In the case of Bolivar v. Bolivar, decided November 25, 2014, the COA affirmed the chancellor’s rulings. Judge Ishee wrote the opinion for the court.
On the issue of whether Teresa was entitled to notice, pursuant to MRCP 5, of the May hearing, the court said this:
¶11. Rule 5(a), in pertinent part, provides that “every written notice . . . shall be served upon each of the parties.” Nonetheless, Rule 5(a) also states that “[n]o service need be made on parties in default for failure to appear[.]” At the hearing regarding Teresa’s motion to set aside the divorce judgment, Teresa testified that she was served properly with process. Although she contends that she had obtained an attorney whom she believed was handling her case, the record does not reflect that any action was taken on her behalf in the thirty days following her receipt of the summons. As such, she was in default for failing to answer or appear. Nonetheless, Teresa argues that she was not properly declared in default pursuant to Rule 55.
As to whether she was properly declared in default per MRCP 55:
¶12. Rule 55 governs default judgments, and provides that when a party “has failed to plead or otherwise defend as provided by these rules and that fact is made to appear by affidavit or otherwise, the clerk shall enter his default.” M.R.C.P. 55(a). However, “[i]f the party against whom judgment by default is sought has appeared in the action, he [or his representative] shall be served with written notice of the application for judgment at least three days prior to the hearing of such application[.]” M.R.C.P. 55(b). Teresa contends that Larry should have applied for an entry of default with the chancery clerk or applied for a default judgment in the chancery court. She maintains that his failure to declare her in default meant that she was not in default and his duty to serve her notice remained intact. As such, she argues that the judgment in his favor is void. We disagree.
¶13. This rule is “not directly applicable” to divorce proceedings. Stinson v. Stinson, 738 So. 2d 1259, 1262 (¶12) (Miss. 1999). Specifically, the Mississippi Supreme Court has held that a judgment entered in an action for divorce following a defendant’s failure to answer is “a special kind of default judgment.” Id. at 1263 (¶13) (quoting Mayoza v. Mayoza, 526 So. 2d 547, 548 (Miss. 1988)). A defendant’s failure to answer does not drag a divorce case to a halt. Instead, the plaintiff must, at a hearing, prove the allegations that support the receipt of a divorce. If that is done, then the chancellor has authority to grant the divorce despite the absence of the defendant. Id. at (¶15). This reasoning is supported by Rule 55(e), which provides that “unless the claimant establishes his claim or rights to relief by evidence,” a default judgment will not be entered in a suit for divorce. “Furthermore, a divorce will not be granted on the uncorroborated testimony of the claimant.” Lindsey v. Lindsey, 818 So. 2d 1191, 1194 (¶13) (Miss. 2002).
¶14. Since Teresa failed to answer or appear, we find that she was in default and not owed notice of the divorce hearing. Further, after a review of the record, we find that Larry established his claim to a judgment of divorce despite Teresa’s absence. Larry’s testimony, in addition to the corroborating testimony of Parker, clearly established a divorce on the grounds of desertion. As such, we find this issue is without merit.
Note that if the defendant does enter a timely appearance, and then stops participating, you must give the defendant notice of further proceedings per R5.
How Not to Propound Discovery Requests via Email
March 18, 2014 § 5 Comments
If you’re like me, this entry among the MSSC hand-downs last Thursday had you scratching your head:
EN BANC
2013-IA-01784-SCT
Amber Olsen Johnson v. Walter Thomas Johnson; Madison Chancery Court; LC Case #: 2012-0921; Ruling Date: 10/14/2013; Ruling Judge: Janace Goree; Disposition: The Petition for Interlocutory Appeal filed by Petitioner is granted. This matter is remanded to the Madison County Chancery Court for entry of an order denying Respondent’s Motion to Compel in cause no. 2012-0921. The notice of appeal having been deemed filed, the filing fee is due and payable to the Clerk of this Court. The Respondent is taxed with all costs of this appeal. To Grant and Render: Waller, C.J., Dickinson and Randolph, P.JJ., Lamar, Kitchens, Chandler, Pierce and King, JJ. To Grant: Coleman, J.; Randolph, P.J., for the Court. Order entered.
An interlocutory appeal is granted and the chancellor is ordered to enter a discovery order. What exactly is going on here?
After I read Jane’s and Anderson’s blog posts on the ruling, it was much clearer.
It seems that the trial court had granted a motion to compel based on a R34 request for production of documents (bank records) that was directed via email to an employee of opposing counsel, and not to opposing counsel herself. Petition was filed for an interlocutory appeal from the order. The MSSC accepted the appeal, dispensed with briefing, and ruled that an email request made by counsel for one party to an employee of counsel for the other party does not meet the notice requirements of MRCP 5 and 34.
Jane includes the transcript of the trial-court proceedings, in which counsel for the party seeking discovery argues that an email request, no matter how informal, complies with the requirements of R34, which only requires a writing. The MSSC did not directly address this particular point.
The two points to take away from this are:
- Sometimes we get accustomed to dealing with a particular paralegal or other staff in opposing counsel’s office. Notice to that staff member will not suffice as notice to the attorney under R5 or R34. Here, the missing component was either an automatic electronic acknowledgment of receipt from the attorney, or the attorney’s separate acknowledgment, either of which is required in R5. The acknowledgment of a staff member does not satisfy the express requirement of R5 that it be made by the attorney.
- If you find yourself scratching your head over some hand-down of the appellate courts, it might pay you to take an extra three minutes to look up the order behind it. If you don’t, you might miss something that could impact a future case of yours.
Thanks to both Jane and Anderson for posting on this, and to Beverly Kraft for calling it to my attention.
Getting All the Heirs Aboard
February 13, 2014 § 4 Comments
Since 2010, it has been the common practice across the state for chancellors to require an heirship determination in intestate estates (some chancellors require it in testate estates also).
That’s because MCA 91-1-29 specifically requires it, as does MCA 91-7-293.
Most attorneys accomplish the requirement by filing a petition to determine heirs, publishing process for unknown heirs.
So, you have opened the estate and had your administratrix qualified. You joined the three siblings, and you have started publishing notice in the local newspaper for unknown heirs. Have you and your fiduciary done all that the law requires?
Not necessarily.
In the case of Estate of Thomas v. Thomas, 883 So.2d 1173, 1177 (Miss. 2004), the MSSC said this:
¶ 12. Under Mississippi case law, the administratrix of an estate is under a duty to use reasonable diligence to ascertain potential heirs. Smith ex rel. Young v. Estate of King, 579 So.2d 1250, 1252 (Miss.1991). See also In re Estate of Johnson, 705 So.2d 819, 822 (Miss.1996). Another duty of the administratrix is to provide notice to known or reasonably ascertainable illegitimate children who are potential heirs and whose claims would be barred if the 90-day statutory time period had run. King, 579 So.2d at 1253. Under Mississippi law, an administratrix acts as a fiduciary for all persons interested in the estate. Shepherd v. Townsend, 249 Miss. 383, 162 So.2d 878, 881 (1964). The administratrix has this duty of notice by statute. Miss.Code Ann. § 91-1-29 (Rev.2004). In King, as here, the administratrix failed to notify the court of a reasonably ascertainable heir and failed to notify the heirs that the paternity claims would be barred if not timely filed.
MCA 91-1-15(3)(c) is a statute of limitations for claims of illegitimates against an estate, and in most circumstances that limitation does not begin to run until the illegitimate receives actual notice( be sure to read this statute).
So, let’s say that your client, the administratrix, actually knows that the decedent had an illegitimate child. If she conceals that fact from you, and it later comes to light, the administration of the estate, including any final judgment, closing, and disbursement, is subject to a finding of fraud on the court and consequent setting aside. And … there is no time limit on an action to set aside a judgment for fraud on the court.
Likewise, if you and your fiduciary do not do due diligence to discover any illegitimates, your administration of the estate is in jeopardy from later claims of illegitimates who say that they were not properly noticed.
How do you protect yourself and the heirs? Some suggestions:
- Grill your client about who all the heirs might be, and ask whether there are any “outside children.” Ask if there has even been a suspicion that there might be illegitimates, and ascertain not only who they might be, but also who might be the father, the grandparents, aunts, uncles, or persons with knowledge. Investigate, make contact, ask questions.
- Get your client to sign an affidavit you can file with the court spelling out what knowledge the fiduciary has as to any illegitimates, and the diligent search and inquiry that has been done to identify and contact them.
- As a further measure of internal protection, you might want to compose a letter to your client recounting what he or she told you about illegitimates, and itemizing the efforts made to identify and contact them. Then have your client sign a file copy acknowledging receipt.
- Sometimes it happens that a person believed to be an illegitimate heir disclaims the heirship or any interest in the estate. If possible, get that person to sign a disclaimer of heirship and any interest in the estate, and file it with the court. If he or she refuses, have personal process served.
- If you unearth certain or purported illegitimate heirs, have them personally served with process and notice per MCA 91-1-15(3)(c) that his or claims will be barred unless filed within the statutory time.
- Be sure to include the names of any known or purported illegitimate heirs in your petition for determination of heirship and publication notice. Ask the court to adjudicate them not to be heirs unless they file a timely action per MCA 91-1-15(3)(c).
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