King v. King, 07-CA-59002

Decision Date31 January 1990
Docket NumberNo. 07-CA-59002,07-CA-59002
Citation556 So.2d 716
PartiesDavid Curtis KING v. Martha Jane KING.
CourtMississippi Supreme Court

G. Wayne Hynum, Hattiesburg, for appellant.

Dan R. Wise, Hattiesburg, for appellee.

Before DAN M. LEE, P.J., and PRATHER and BLASS, JJ.

BLASS, Justice, for the Court.

I.

This is an appeal of the denial of defendant's Motion to Set Aside a Judgment of Divorce and award of lump sum alimony, child support and attorney's fees.

Plaintiff, Martha Jane King filed a complaint for divorce against David Curtis King on March 25, 1987. A Judgment of Divorce was granted to Martha King on October 6, 1987 on the grounds of Cruel and Inhuman Treatment. She was awarded custody of Collin King, minor child of the marriage, subject to reasonable visitation by David King within Marion County. The court found that Defendant had encumbered Martha King's property in the amount of $54,725.87 to obtain funds for the benefit of David Curtis King, Inc., in which Defendant owned all the stock; and which Martha King had run since his departure from the state. Based on this indebtedness, Martha King was awarded a money judgment of lump sum alimony to adjust the equities of the parties in the amount of $54,725.87. The Court also awarded $250 per month child support and found that David King had removed Plaintiff's property from the state and she was entitled to possession of same.

Defendant filed a Motion to Set Aside Judgment, on October 9, 1987. The grounds for the motion were that: (1) the cause was not triable on October 6, 1987 because there had been neither agreement, nor Order of the Court setting the trial for that date; (2) attorney for defendant did not receive adequate notice of the trial setting; (3) plaintiff's attorney was aware that defendant could not appear on October 6 and his actions in proceeding constitute a fraud upon the defendant and the court. Petitioner did not specify the Rule of Civil Procedure under which he was proceeding, but prayed for "an appropriate Order setting aside the Judgment of Divorce ... and reinstating this matter on the docket of this Court. If your Movant has prayed for the wrong, or improper relief, then he prays for general relief in the premises."

Plaintiff/Appellee's response to the Motion denied the allegations, and prayed for sanctions under Miss.R.Civ.P. 11 due to defense counsel's dilatory tactics including: failure to timely file discovery; failure to timely file an answer and cross-complaint; and failure to diligently pursue the conclusion of the case.

The Court denied Respondent/Defendant's Motion to Set Aside Judgment by order of December 4, 1987, finding that he had failed to prove that the judgment entered by the Court was based on fraud, and that respondent had not made a sufficient showing to set aside the former judgment pursuant to Miss.R.Civ.P. 60(b). No Rule 11 sanctions were imposed.

From this order David King appeals raising three issues, the first of which is dispositive. Finding that the trial was improperly set, we reverse, setting aside the Judgment of Divorce and award of lump sum alimony, child support and attorney's fees.

II.

After Martha King filed her Bill of Complaint for divorce, there were extensive negotiations with David King, through his attorney in Georgia. A tentative agreement was reached, and later revoked by David King. He subsequently hired a local attorney, and filed an answer and cross complaint on July 2, 1987.

The parties tentatively agreed to an October 6, 1987 trial setting. A partially executed "Agreed Order" was sent to defendant, but he never approved it and did not submit it to the Clerk of Court. Defendant requested a continuance for the purpose of additional discovery, on September 29, 1987. No discovery was filed. On that same day, defendant was advised in writing by plaintiff that the case was set for trial on October 6, 1987, and the plaintiff would not agree to a continuance.

On receipt of plaintiff's letter of September 29, defense counsel called the Chancery The Deputy Clerk in the Chancery Clerk's office, verified that the case was not set during the week prior to October 6, 1987 until after defendant's call. The case was set for October 6, at the request of plaintiff.

Clerk's office for Marion County and was told by a Deputy Court Clerk that the case had not been set for trial on October 6, or any other date. Defense counsel was contacted by plaintiff's counsel's office on Monday, October 5, 1987 and advised that the trial was set for the next day, Tuesday, October 6. Defendant was unable to contact plaintiff's counsel to discuss the matter. On the morning of October 6, defense counsel called the Chancery Clerk's office and asked the Deputy Court Clerk to announce to the Court that he had just learned of the setting, his client was out of state, and that he requested a continuance. On October 9, defense counsel learned that plaintiff had obtained a judgment on October 6, he then prepared the Motion at issue here.

III.

DID THE CHANCELLOR ERR IN DENYING THE MOTION TO SET ASIDE

THE JUDGMENT?

David King's motion asserts four reasons to set aside the judgment: (1) the cause was not triable on Oct. 6, 1987 due to lack of agreement; (2) Attorney for Defendant did not receive adequate notice of the trial setting; (3) Plaintiff was aware that Defendant could not try the matter and proceeding constitutes a fraud upon defendant and the Court; and (4) other good cause.

Defendant's assertion that the cause was not triable due to lack of agreement, clearly indicates that he is alleging a failure to follow Rule 40, which states:

ASSIGNMENT OF CASES FOR TRIAL

(a) Methods. Courts shall provide by local rule for placing of actions upon the trial calendar

(1) without request of the parties; or,

(2) upon request of a party and notice to the other parties; or

(3) in such other manner as the court deems expedient.

Prior to the calling of a case for trial, the parties shall be afforded ample opportunity, in the sound discretion of the court, for completion of discovery.

(b) Notice. The court shall provide by written direction to the clerk when a trial docket will be set. The clerk shall at least five (5) days prior to the date on which the trial docket will be set notify all attorneys and parties without attorneys having cases upon the trial calendar of the time, place, and date when said docket shall be set. All cases shall be set on the trial docket at least twenty (20) days before the date set for trial unless a shorter period is agreed upon by all parties or is available under Rule 55. (Writer's Note: Rule 55 deals with default based on a failure to plead or otherwise defend). The trial docket shall be prepared by the clerk at the time actions are set for trial and shall state the case to be tried, the date of trial, the attorneys of record in the case, and the place of trial. Additionally, said trial docket shall reflect such attorneys of record and parties representing themselves as were present personally or by designee when the trial docket was set. The clerk shall within three (3) days after a case has been placed on the trial docket notify all parties who were not present personally or by their attorney of record at the docket setting as to their trial setting. Notice shall be by personal delivery or by mailing of a notice within said three (3) day period. Matters in which a defendant is summoned to appear and defend at a time and place certain pursuant to Rule 81 or in which a date, time and place for trial have been previously set shall not be governed by this rule.

(c) Trial by Agreement. Parties, including those who are in a representative or fiduciary capacity, may waive any waiting period imposed by these rules or statute and agree to a time and place for trial. (Emphasis added)

It is apparent that Rule 40 was not followed in setting this case for trial. The comment to Rule 40 states that the trial docket is governed by Rule 40(b), which in turn requires that the trial date be at least twenty (20) days after the time the case is set for trial, unless the parties agree to a shorter period. In this case the parties did not agree, evidenced by the failure of defendant to sign and return the agreed order. Rule 40(b) requires the clerk to mail or personally deliver notice of the date and time of trial within three (3) days to all parties not present at the setting. Defendant was not provided with the mandatory written notice.

Although the court considered Defendant's motion on Miss.R.Civ.P. 60(b)(1), basing its denial of the motion on a finding that defendant failed to prove fraud by clear and convincing evidence, we will consider the motion under 60(b)(6). 1

This court has not favored final decrees which are the product of surprise, accident, mistake, or fraud. International Paper Co. v. Basila, 460 So.2d 1202, 1203 (Miss.1985); Corinth State Bank v. Nixon, 144 Miss. 674, 110 So. 430 (1926); and Robertson, State Revenue Agent v. Aetna Ins. Co., 134 Miss. 398, 98 So. 833 (1924). A stated purpose of the procedure outlined in Rule 40 is the establishment of a flexible method of scheduling cases for trial, while assuring that the parties receive appropriate notice at important stages of the process, accomplished through the mechanisms of the trial calendar and the trial docket. Miss.R.Civ.P. 40 (Comment).

In H & W Transfer and Cartage Service, Inc. v. Griffin, 511 So.2d 895 (Miss.1987), 2 the trial court was directed to use a balancing test in assessing the merits of a motion under Rule 60(b). The factors to be considered are:

(1) the nature and legitimacy of defendant's reasons for his default, i.e., whether the defendant has good cause for default,

(2) whether defendant in fact has a colorable defense to the merits of the claim, and

(3) the nature and extent of prejudice which may be suffered by the plaintiff if the default judgment is set aside.

511 So.2d at 898.

Applying this test we...

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