Kolikas v. Kolikas

• Decision Date: 16 April 2002
• Docket Number: No. 2000-CA-01615-COA.,2000-CA-01615-COA.
• Citation: 821 So.2d 874
• Parties: Dora Jean KOLIKAS, Appellant, v. James Richard KOLIKAS, Appellee.
• Court: Mississippi Court of Appeals

821 So.2d 874

Dora Jean KOLIKAS, Appellant, v. James Richard KOLIKAS, Appellee.

No. 2000-CA-01615-COA.

Court of Appeals of Mississippi.

April 16, 2002.

Rehearing Denied July 16, 2002.

Pat Donald, Madison, attorney for appellant.

Ronald Louis Taylor, Southaven, attorney for appellee.

Before KING, P.J., THOMAS, and MYERS, JJ.

KING, P.J., for the court.

¶ 1. On May 7, 1998, James Richard Kolikas obtained a decree of divorce from Dora Jean Kolikas in Marshall County, Mississippi. On January 8, 1999, Ms. Kolikas obtained a decree of divorce from Mr. Kolikas in North Carolina. Ms. Kolikas has appealed the order of the Marshall County Chancery Court which held that the divorce obtained by Mr. Kolikas in Mississippi was valid and the North Carolina decree was not entitled to full faith and credit, and asserts the following issues, which we quote verbatim from her brief: "(1) Did the trial court commit reversible error in holding that the judgment of divorce entered by the Chancery Court of Marshall County, Mississippi is valid and binding on Dora Jean Kolikas, even though the judgment was obtained without any process ever being served upon Dora Jean Kolikas, either personally or by publication? (2) Did the trial court commit reversible error in holding that the North Carolina divorce judgment was not entitled to full faith in the State of Mississippi, and by failing to decree the registration of such North Carolina divorce judgment?"

FACTS

¶ 2. Dora Jean Kolikas and James Richard Kolikas were married on March 26, 1971, in Fairfax, Virginia. The parties had one child, James Kolikas, born January 6, 1973, who is now an adult. In 1992, the parties resided in Wilmington, North Carolina. In July 1997, the parties separated. Mr. Kolikas left the marital home in North Carolina and moved to Byhalia, Mississippi.

¶ 3. On February 20, 1998, Mr. Kolikas filed a complaint for divorce in the Chancery Court of Marshall County, Mississippi on the grounds of habitual cruel and inhuman treatment, and alternatively, irreconcilable differences. In the complaint, Mr. Kolikas asserted that Ms. Kolikas was a non-resident of Mississippi who resided at 7308 Chase Lane, Wilmington, North Carolina 28405. Mr. Kolikas published a summons to Ms. Kolikas in a Marshall County newspaper, but provided no further notice to her.

¶ 4. In March 1998, Mr. Kolikas signed an authorization to disburse to Ms. Kolikas the proceeds from the sale of their North Carolina home.

¶ 5. On April 6, 1998, Ms. Kolikas filed a complaint for divorce in the General Court of Justice District Court Division of New Hanover County, North Carolina. Mr. Kolikas took no action to defend the case in North Carolina.

¶ 6. On May 7, 1998, Mr. Kolikas was granted a divorce in the Chancery Court of Marshall County, Mississippi. Mr. Kolikas testified that a copy of the divorce decree was faxed to Ms. Kolikas' attorney the following day. Mr. Kolikas stated that he mailed a copy of the divorce decree to Ms. Kolikas. Ms. Kolikas immediately responded by sending the document back saying "it wasn't worth the paper it was written on."

¶ 7. On May 11, 1998, the North Carolina court ordered Mr. Kolikas to pay $2,644 per month as post-separation support and attorney's fees in the amount of $360. A copy of this order is listed on the sheriff's return of service as having been served on Mr. Kolikas on May 18, 1998.

¶ 8. On July 18, 1998, Mr. Kolikas married Reba (his first wife). Ms. Kolikas sent a card to the couple acknowledging their re-marriage.

¶ 9. In August 1998, a contempt order and order for the arrest of Mr. Kolikas was entered for failure to pay the amounts ordered by the North Carolina court. The sheriffs return attached to this document listed it as having been served on Mr. Kolikas on June 30, 1998.

¶ 10. On January 8, 1999, Ms. Kolikas was granted a judgment of divorce in North Carolina. Under the North Carolina judgment, Mr. Kolikas was ordered to pay Ms. Kolikas $2,000 per month as permanent alimony to begin on February 1, 1999 and $500 in attorney's fees.

¶ 11. On December 7, 1999, Ms. Kolikas filed a petition with the Marshall County Chancery Court for registration of a foreign decree. On December 23, 1999, Mr. Kolikas filed his response to the petition and filed a motion for relief from judgment pursuant to Rule 60(b) of the Mississippi Rules of Civil Procedure. On January 10, 2000, Ms. Kolikas responded to this motion. The chancellor heard testimony on those matters in February of 2000. At the close of the hearing, the chancellor requested that both parties submit briefs to the court for further review of the matter.

¶ 12. After receipt of the additional briefs on June 16, 2000, the chancellor sustained Ms. Kolikas' petition for registration of a foreign order, after which Mr. Kolikas filed a motion to alter or amend findings of fact and a motion for stay on June 26, 2000. On July 5, 2000, Mr. Kolikas supplemented this petition with an affidavit by Tracy Russell (Ms. Kolikas' natural daughter) which stated that Ms. Kolikas was informed of the pending divorce proceeding in Mississippi. That as a result of that knowledge, she had requested that Mr. Kolikas insure that her maiden name was restored. On July 10, 2000, Ms. Kolikas moved to strike the affidavit as improper and for failure to file within ten days of judgment pursuant to M.R.C.P. 59(e).

¶ 13. The chancellor heard the various motions on August 11, 2000, and on August 22, 2000, entered an order which set aside the court's prior order dated June 16, 2000, sustaining the petition for registration of a foreign decree, and found that Ms. Kolikas was estoppel from questioning the validity of the Mississippi divorce. The chancellor denied Ms. Kolikas' motion for relief from judgment pursuant to M.R.C.P. 60(b), and the motion to strike the affidavit of Tracy Russell. The order declined to give full faith and credit to the North Carolina decree, and relieved Mr. Kolikas of the burden of complying with the North Carolina divorce decree.

ISSUES AND ANALYSIS

STANDARD OF REVIEW

¶ 14. In reviewing a domestic relations case, a chancellor's factual findings will not be disturbed unless the court's actions were manifestly wrong, the court abused its discretion, or applied an erroneous legal standard. Wright v. Wright, 737 So.2d 408(¶ 5) (Miss.Ct.App. 1998). For questions of law, our standard of review is de novo. McCubbin v. Seay, 749 So.2d 1127

(¶ 5) (Miss.Ct.App.1999).

I.

Did the trial court commit reversible error in holding that the judgment of divorce entered by the Chancery Court of Marshall County, Mississippi is valid and binding on Dora Jean Kolikas, even though the judgment was obtained without any process ever being served upon Dora Jean Kolikas, either personally or by publication?

¶ 15. Ms. Kolikas contends that the chancery court committed reversible error by holding that the divorce judgment in Mississippi was valid and binding on her even though it was obtained without proper service of process. Ms. Kolikas was a non-resident of Mississippi, upon whom service of process was attempted pursuant to Rule 4(c)(3)(A) & (C) of the Mississippi Rules of Civil Procedure. Rule 4(c)(3)(A) & (C) of the Mississippi Rules of Civil Procedure requires the following:

(A) 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.

(C) It shall be the duty of the clerk to hand the summons to the plaintiff or petitioner to be published, or, at his request, and at his expense, to hand it to the publisher of the proper newspaper for publication. Where the post office address of the absent defendant is stated, it shall be the duty of the clerk to send by mail (first class mail, postage prepaid) to the address of the defendant, at his post office, a copy of the summons and complaint and to note the fact of issuing the same and mailing the copy, on the general docket, and this shall be the evidence of the summons having been mailed to the defendant. (emphasis added)

¶ 16. The rules on service of process are to be strictly construed. Birindelli v. Egelston, 404 So.2d 322, 323-24 (Miss.1981). If they have not been complied with, the court is without jurisdiction unless the defendant appears of his own volition. American Cable Corp. v. Trilogy Communications, Inc., 754 So.2d 545(¶ 7) (Miss.Ct.App.2000).

¶ 17. If a defendant does not voluntarily appear to a cause against him, he cannot be gotten into court except in the manner laid down by law. He is under no obligation to notice what is going on in a cause in court against him, unless the court has gotten jurisdiction of him in some manner recognized by law. Burns v. Burns, 133 Miss. 485, 491, 97 So. 814, 815 (1923). Mr. Kolikas published a summons by publication in Mississippi, but neither he nor the chancery clerk attempted to provide Ms. Kolikas any further notice of the complaint for divorce. Mr. Kolikas listed Ms. Kolikas' physical address...