McKinney v. McKinney, 51250

• Decision Date: 22 August 1979
• Docket Number: No. 51250,51250
• Citation: McKinney v. McKinney, 374 So.2d 230 (Miss. 1979)
• Parties: Norman Ray McKINNEY v. Betty Ester McKINNEY (Sullivan).
• Court: Mississippi Supreme Court

Page 230

374 So.2d 230

Norman Ray McKINNEY v. Betty Ester McKINNEY (Sullivan).

No. 51250.

Supreme Court of Mississippi.

Aug. 22, 1979.

Lewis, Booker & Lewis, Thomas L. Booker, Jr., Philadelphia, for appellant.

Edward A. Williamson, Philadelphia, for appellee.

Before SMITH, P. J., and LEE and BOWLING, JJ.

BOWLING, Justice, for the Court:

This appeal is from the Chancery Court of Neshoba County. By decree of June 2, 1978, the chancellor found appellant in contempt of court for allegedly refusing to abide by an order of the court regarding child support. The decree further required appellant to pay to appellee the sum of $120 per month as child support and attorney's fees in the sum of $200. Appellant appeals from all provisions of the decree.

This litigation extends over a long period of time and a brief resume would be helpful. On November 27, 1963, the chancellor issued his decree granting appellee a divorce from appellant. The decree also awarded custody of two of the four children of the parties to appellee and the custody of the other two to appellant. Nothing was mentioned in the decree about child support.

In April, 1972, appellee filed her petition to modify the 1963 decree, alleging that she then had the actual custody of all four children and that appellant should be required to make periodic child support payments. A number of summons were issued to the Sheriff of Neshoba County to be served on appellant. All were returned "not found" until the return of August 22 1972, from the Sheriff of Neshoba County, which recited:

I have this day executed the within writ on Norman Ray McKinney, the within named defendant, by leaving a true copy of the same at his usual place of abode in my county, with Mrs. Bertie McKinney, his mother, a member of his family above the age of 16 years, and willing to receive such copy.

After this return was made, at least several other summons were issued and returned with the defendant listed as being "not found." No appearance was made by appellant to the petition to modify. On November 27, 1972, the chancellor issued his decree granting permanent custody of all four children to appellee and requiring appellant to pay to appellee the sum of $100 per month as child support and the sum of $250 as attorney's fees.

The matter rocked on until December, 1974, when appellee filed a petition to cite appellant for contempt of court for failure to abide by the terms of the decree of November 27, 1972. Personal service was had on appellant on January 4, 1975, under this petition. Appellant filed an instrument styled "Motion in the Nature of a Plea in Abatement to Quash Process and Vacate Previous Decree Entered Thereon and to Dismiss Petition to Cite Defendant in Contempt of Court." The motion alleged that the decree of November 27, 1972, was void as he was never properly served with summons to answer the petition under which the decree was granted. By affidavit attached to his motion appellant stated that at the time of the alleged secondary service he was not a resident of Neshoba County, but was a resident of Jackson County.

By order dated June 4, 1975, the chancellor overruled the motion to quash process. In his order it was stated:

(T)he court being of the opinion that the secondary service of process upon the defendant on August 22, 1972, was ineffective as the court finds that the defendant was not a resident of Neshoba County, Mississippi, and the court further finding that the process is not fatally defective for failure to state that the defendant was not in Neshoba County and the court being of the further opinion that even though the secondary service of process was ineffective that the defendant has wholly and totally failed to show that he has a merit defense to the petition to modify the decree. . . .

No further action was taken in the proceedings except an order of continuance until January, 1978, when appellee filed a "Petition for Citation for Contempt and to Modify," in which she requested that appellant be cited for contempt of court for failure to abide by the decree of November 27, 1972. The petition further requested that child support payments be increased and a request for attorney's fees. Summons under this last petition was served personally on appellant on January 6, 1978. For some reason other summons were issued for appellant on the petition on January 31, February 3, and April 20, 1978. All of these were returned "not found."

On June 1, 1978, without appellant being present, a hearing was had and evidence presented by appellee. For some reason, not shown in the record, the original...