Hamm v. Hall

• Decision Date: 08 May 1997
• Docket Number: No. 95-CA-00774-SCT,95-CA-00774-SCT
• Citation: 693 So.2d 906
• Parties: Donald Howard HAMM v. Diane Hamm HALL.
• Court: Mississippi Supreme Court

Page 906

693 So.2d 906

Donald Howard HAMM v. Diane Hamm HALL.

No. 95-CA-00774-SCT.

Supreme Court of Mississippi.

May 8, 1997.

Charles Matthew Holleb, Shannon, for Appellant.

Jacqueline Estes Mask, Tupelo, for Appellee.

Before PRATHER, P.J., JAMES L. ROBERTS, Jr. and MILLS, JJ.

PRATHER, Presiding Justice, for the Court:

I. INTRODUCTION

The present case involves a personal judgment for child support entered against a divorcing father residing outside of this State. A judgment was entered against the father in spite of the fact that notice by publication was provided and in spite of the fact that the father filed no answer and made no general appearance in response to the divorce, custody, and support petition. Under clear precedent set by this Court and by the United States Supreme Court, this Court must reverse and declare the original order of child support to be void. This Court remands, however, for a determination of the father's liability for child support payments from and after the point at which the trial court did gain personal jurisdiction over him through his filing of an answer to a subsequent motion filed by the mother.

II. STATEMENT OF THE FACTS AND CASE

On July 3, 1984, the Chancery Court of Lee County issued a final decree granting Diane Hamm a divorce from Donald Hamm. In said decree, the Court affirmatively found that it had obtained personal jurisdiction over Donald in spite of the fact that he was served with notice by publication. Publication of the notice was made in the Northeast Mississippi Daily Journal in Tupelo for three consecutive weeks on March 23, March 30, and April 6, 1984. A copy of the summons was mailed by first class mail to Donald's supposed home address in Des Moines, Iowa, but Donald asserts that the only notice which he received of the notice was through personal conversations with Diane.

Donald filed no answer to the divorce petition, nor did he make an appearance at the divorce proceeding. In addition to granting the divorce, the Chancellor ordered Donald to pay Diane sixty dollars a week in child support payments, which amount was to automatically increase to seventy-five dollars per month one year from the issuance of the decree. Donald almost immediately began paying fifty-five dollars per week in child support payments, but said payments were made somewhat sporadically and a deficiency in the ordered payments accumulated over the course of the next ten years.

On June 9, 1994, Diane filed a complaint for contempt of court and for modification of the earlier decree, and Donald was provided with personal notice of this complaint. In said complaint, Diane sought the payment of $18,495.00 in past due child support, and Donald responded with a cross-complaint filed on July 15, 1994, seeking modification of the earlier decree, including specific provisions granting him a right to visitation with the children. Donald's answer did not assert any affirmative defenses, and it was not until September 13, 1994, that Donald filed a motion to strike in which he argued for the first time that the chancery court lacked personal jurisdiction over him in the original action and that the child support order was thus void.

The Chancellor denied the motion to strike on October 10, 1994, but he reconsidered and vacated the denial of this ruling on December 12, 1994. Donald's original motion to strike was considered at a hearing on July 15, 1995, but the Chancellor once again denied this motion, ruling that Donald had waived any due process violations which he might have suffered through the lack of personal service granted to him. Donald filed an appeal from this ruling, although he did not file an interlocutory appeal, which, Diane contends, was his only available appellate remedy.

III. LAW

A. Do the facts relating to service of process upon defendant Donald Hamm justify the finding by the trial court on June 20, 1995 that "there is personal jurisdiction over the defendant" irrespective of the fact that on December 12, 1994 the trial court had ruled opposite thereto?

B. Do the actual facts of service of process upon defendant Donald Hamm, rather, justify the reversal of the trial court finding of personal jurisdiction and the consequent finding by this Mississippi Supreme Court that those facts constitute In Rem Jurisdiction?

C. Did the child support order requiring defendant Donald Hamm to pay to "Diane F. Hamm the sum of $60.00 per week for the care and maintenance of the minor children and shall automatically increase to $75.00 per week in one year" actually impose that economic payment requirement upon defendant Donald Hamm?

Donald argues that the original order for child support entered against him was an invalid and void judgment, given that the chancery court did not have in personam jurisdiction over him. Donald has substantial support for his argument in legal authority.

24 Am.Jur.2d "Divorce and Separation" § 552 provides that:

It is well settled, in accord with general rules applicable in other cases, that a decree for alimony and costs against a nonresident defendant cannot be based on constructive service except as against property found within the jurisdiction of the court, proceeded against in the divorce proceeding, and described in the complaint or petition. In other words, constructive service, whether made by publication or by actual service of process on the defendant outside the state, is insufficient to give jurisdiction on which to render a judgment for alimony against a nonresident which would be personally binding. The acceptance of the decree by a defendant over whom no jurisdiction was obtained has been held not to estop the defendant from disputing the validity of a subsequent ex parte proceeding in the divorce suit by which the judgment was opened and a decree for alimony entered.

This Court's decision in Noble v. Noble, 502 So.2d 317 (Miss.1987) is directly on point in the present case. In Noble, Dorothy Noble filed for divorce in this state, serving notice upon her husband by publication and by mailing notice of said publication to his residence in South Carolina via first class mail pursuant to M.R.C.P. 4(c)(4). Noble, 502 So.2d at 319. Notice of the original divorce petition in the present case was similarly provided to Donald in precisely the manner called for under M.R.C.P. 4(c)(4). Based on this notice, the Chancellor in Noble declined to impose a monetary judgment upon Mr. Noble, ruling that he lacked personal jurisdiction over him. This Court affirmed, holding that the notification under M.R.C.P. 4(c)(4)(C):

(Did) not confer personal jurisdiction over the defendant without answer or general appearance by the defendant. This publication method under M.R.C.P. 4(c)(4)(C) does not authorize rendition of a personal judgment against the defendant without his appearance. (citing Campbell v. Campbell, 357 So.2d 129 (Miss.1978)). Had the plaintiff followed the procedure of Rule 4(c)(5) and secured service of process by certified mail, return receipt requested, restricted delivery, personal jurisdiction over the defendant to render a personal judgment would have been accomplished under the facts of this case.

Noble, 502 So.2d at 320.

Thus, this Court has held that a method of service virtually identical to the service provided in the present case is insufficient to grant the courts of this State personal jurisdiction over a defendant absent an answer or general appearance on the part of the defendant. This Court based its holding in Noble in large part upon the United States Supreme Court case of Kulko v. California Superior Court, 436 U.S. 84, 98 S.Ct. 1690, 56 L.Ed.2d 132 (1978), wherein the Supreme Court held that:

It has long been the rule that a valid judgment imposing a personal obligation or duty in favor of the plaintiff may be entered only by a court having jurisdiction over the person of the defendant.... The existence of personal jurisdiction, in turn, depends upon the presence of reasonable notice to the defendant that an action has been brought, ... and a sufficient connection between the defendant and the forum State as to make it fair to require defense of the action in the forum. (citations omitted).

Kulko, 436 U.S. at 91, 98 S.Ct. at 1696.

Based on the standards set forth by the United States Supreme Court in Kulko, this Court held in Noble that notice by publication pursuant to M.R.C.P. 4(c)(4) was not sufficient to meet the "adequacy of notice test" in for the purposes of the "rendition of a money judgment." Id. at 320. In the present case, Diane similarly served notice by publication upon her husband through the very same method set forth in M.R.C.P. 4(c)(4). Under these facts, the chancery court had no jurisdiction to enter a money judgment against Mr. Hamm, where the record indicates that he made neither an answer nor a general appearance.

The record indicates that the Chancellor based his ruling that Hamm had waived any due process violation on a misreading of this Court's decision in Miller v. Miller, 512 So.2d 1286 (Miss.1987). Miller is clearly distinguishable from the present case based on the fact that this Court in Miller held that the defendant had filed an answer to the summons. This Court in Miller so held based on the fact that the defendant had mailed a letter to the court which was expressly designated as an "answer" to the summons and which set forth the defendant's defenses to the charges in said summons. This Court expressly stated in Miller that "(w)e hold that handwritten letter to be an entry of appearance for purposes of in personam jurisdiction." Miller, 512 So.2d at 1288. As such, the facts in Miller did not involve a violation of the husband's due process rights to personal service of process in an action in which an in personam judgment is sought, given that this Court expressly held that an answer was filed in said case.

This Court in Miller also held that the defendant had waived any...