Caldwell v. Caldwell, 58968

• Decision Date: 05 October 1988
• Docket Number: No. 58968,58968
• Citation: 533 So.2d 413
• Parties: Betty Lu CALDWELL v. Melvin Douglas CALDWELL.
• Court: Mississippi Supreme Court

Page 413

533 So.2d 413

Betty Lu CALDWELL v. Melvin Douglas CALDWELL.

No. 58968.

Supreme Court of Mississippi.

Oct. 5, 1988.

Rehearing Denied Nov. 30, 1988.

Bobby Joe Randall, Gulfport, for appellant.

Gerard F. Smith, Dale Robinson, Gulfport, for appellee.

Before ROY NOBLE LEE, C.J., and PRATHER and ROBERTSON, JJ.

ON PETITION FOR REHEARING TO EXPEDITE APPEAL

PRATHER, Justice, for the Court:

This appeal addresses the sufficiency of a diligent search and inquiry under Mississippi's summons by publication rule, Miss. Rules of Civil Procedure 4(c)(4)(A). This Court determines that the publication notice was insufficient because of inadequate search and inquiry to support an unknown address affidavit.

Betty Lu Caldwell (Hall), appearing specially to contest the Mississippi court's jurisdiction, filed a motion in the Chancery Court of Harrison County seeking to set aside a modification decree changing custody of children from her to her ex-husband, Melvin Douglas Caldwell. The Harrison County Chancery Court held that there had been a diligent search and inquiry for Mrs. Hall without success and that the process by publication was sufficient. From this adverse ruling, Mrs. Hall appeals to this Court.

Although the appellant's brief addresses several assignments of error, this Court addresses only one issue necessary for resolution of this appeal, which is whether diligent search and inquiry had preceded the appellee's affidavit for summons process by publication.

I.

Betty Lu Caldwell (Hall) and Melvin Douglas Caldwell have two children, Dawn and Tanya, from their marriage. An interlocutory decree of divorce was granted in December, 1975 in California, which divorce became final six months later, and which decree granted Mrs. Hall custody of the children. Around February 18, 1986, while residing in Norwich, Connecticut, Mrs. Hall had financial difficulties, and testified that she was receiving no child support from her ex-husband. Nor would her ex-husband's family tell her of his whereabouts. She telephoned her ex-mother-in-law, Mrs. Imogene Caldwell Curry, in Shepard Texas and asked if the children could visit with her on the farm while Mrs. Hall made an adjustment, to which request Mrs. Curry readily agreed. Within the hour, Mrs. Curry telephoned the appellant and stated that the children's airplane tickets had been purchased for the next day.

The children arrived and were met by their father at the airport. Without telling Mrs. Hall, the grandmother asked the children if they wanted to go visit with their father in Mississippi; they responded affirmatively and did so. This move was without Mrs. Hall's knowledge or consent. Mrs. Hall then moved to Anchorage, Alaska. The two children were enrolled in school in Biloxi, Mississippi by their father, who was stationed at Keesler Air Force Base.

Around March 21, 1986, Mrs. Hall located the whereabouts of her children from a sister-in-law and telephoned them. The girls assured their mother that they were well and asked her permission to stay; Mrs. Hall consented to their staying until Christmas.

During the mid or late part of August, 1986, Mrs. Hall testified she received a telephone call from her ex-husband's attorney, Gerald Smith. Smith asked if she would sign temporary papers to enable Mr. Caldwell to get medical help for the children if such became necessary. Mr. Caldwell was "sponsor of the children in the military" and could already secure medical services for the children. Mrs. Hall asked if any legal proceedings were being instituted in Mississippi for change of child custody to the father. Smith advised Mrs. Hall that such proceedings were being sought by Mr. Caldwell. She gave to Gerald Smith her full address and telephone number at her mother's residence of 1280 East 17th, Apartment 307, Anchorage, Alaska. No legal papers were ever received by Mrs. Hall. Numerous phone calls were made by Mrs. Hall to her children as well as to the two attorneys in Gulfport, Mississippi, one representing her and one representing her ex-husband. Verification of the placing of these telephone calls was exhibited to the court.

A motion to modify custody was filed on May 19, 1986 in Harrison County Chancery Court alleging Mrs. "Caldwell's" address to be "7709 East 4th Street, Anchorage, Alaska 99504." A temporary custody decree was entered on May 23, 1986, before process by publication was completed. Attorney Smith verified having had a telephone conversation with Mrs. Hall, but the date of which was uncertain. He did state he wrote to "Mrs. Betty Lu Caldwell" at "7709 East 4th Street, Anchorage, Alaska 99504" in May, 1986. That letter, exhibited to the court, was not delivered, nor refused.

Having learned of a second address, Smith mailed another letter to Mrs. Betty Lu Caldwell at "1280 East 17th Street, Anchorage, Alaska 99501," on August 22, 1986. This certified letter also was returned to Smith undelivered, but not refused. It is noted that the address failed to state "Apartment 307" in the address. No further search for Mrs. Hall was made.

After return of the second letter, attorney Smith then filed an amended motion for child custody modification on October 15, 1986, alleging that Mrs. Betty Lu Caldwell (Hall) was a "non-resident citizen of the State of Mississippi, whose address [was] unknown after diligent search and inquiry...." Mr. Caldwell signed an affidavit to the motion upon his oath that the "things and facts alleged [t]herein [were] true and correct as stated [t]herein to the best of the plaintiff's knowledge." Upon this affidavit the summons by publication for Mrs. "Betty Lu Caldwell (Safford)" was issued by clerk of the county. After the publication for the required time, the court entered an order on December 23, 1986 modifying the child custody award entered by the California decree and granted the father custody.

Mrs. Hall exhibited to the Court her telephone statements verifying that telephone calls were made on a regular basis from her place of residence in Alaska to her ex-husband's residence and to her ex-husband's attorney. Although the quality of these exhibits in this appeal record is extremely poor, the exhibit does sufficiently show communication by Mrs. Hall to these parties on a regular basis between May to December, 1986. Mrs. Hall also exhibited a letter from her daughter received by her at the second stated above Alaska address on May 9, 1986.

Mrs. Hall additionally telephoned the trial judge who advised her to employ an attorney. Either the judge or court clerk mailed to Mrs. Hall the December 23, 1986 decree.

Employing her own attorney, Mrs. Hall filed the present contested motion to set aside the December decree, appearing specially to contest the court's jurisdiction under the Uniform Child Custody Jurisdiction Act and the Parental Kidnapping Prevention Act and other grounds and together with a motion for citation for contempt against Mr. Caldwell for arrearage of child support payments of $19,800.00. To this new pleading of Mrs. Hall, Mr. Caldwell filed a general denial and a counterclaim for modification of the California decree of December 16, 1975.

On December 28, 1987, the trial court heard the jurisdictional challenge to the entry of the December, 1986 decree, and found that the court had jurisdiction of the parties and subject matter at the time of entry of that December 1986 decree and continued the force and effect of the order of modification of custody. Mrs. Hall disputes this finding and seeks review by this Court.

II. DID THE RECORD UPHOLD THE CHANCELLOR'S FINDING THAT THE PLAINTIFF'S PROOF OF DILIGENT SEARCH AND INQUIRY WAS SUFFICIENT TO SUPPORT SUMMONS BY PUBLICATION?

Mississippi Rules of Civil Procedure 4(c)(4)(A) provides:

If the defendant in any proceeding in a chancery court, or in any proceeding in any other court where process by publication is authorized, by statute, be shown by sworn complaint or sworn petition, or by a filed affidavit, to be a nonresident of this state or not to be found therein on diligent inquiry and the post office address of such defendant be stated in the complaint, petition, or affidavit, or if it be stated in such sworn complaint or petition that the post office address of the defendant is not known to the plaintiff or petitioner after diligent inquiry, or if the affidavit be made by another for the plaintiff or petitioner, that such post office address is unknown to the affiant after diligent inquiry and he believes it is unknown to the plaintiff or petitioner after diligent inquiry by the plaintiff or petitioner, the clerk, upon filing the complaint or petition, account or other commencement of a proceeding, shall promptly prepare and publish a summons to the defendant to appear and defend the suit. The summons shall be substantially in the form set forth in Form 1-C.

The above rule of procedure is substantially the same as the formerly followed statute Miss.Code Ann. Sec. 13-3-19 (Supp.1972). Therefore, the former judicial decisions and treatises interpreting what constitutes diligent search and inquiry to ascertain addresses of non-residents of Mississippi may be relied upon to analyze the instant case.

Among this jurisdiction's oldest equity treatises is Griffith, Mississippi Chancery Practice, Bobbs-Merrill Company, Inc. (1925) analyzing Mississippi's requirements for summons by publication. Its applicability to this point of law is still apropos and is as follows:

Sec. 236 Requirements of publication statutes must be...