O'Neill v. O'Neill

• Decision Date: 25 November 1987
• Docket Number: No. 57150,57150
• Citation: 515 So.2d 1208
• Parties: Timothy Peter O'NEILL v. Mildred Wilhelmina Morse O'NEILL.
• Court: Mississippi Supreme Court

Page 1208

515 So.2d 1208

Timothy Peter O'NEILL v. Mildred Wilhelmina Morse O'NEILL.

No. 57150.

Supreme Court of Mississippi.

Nov. 25, 1987.

W. Eugene Henry, Biloxi, for appellant.

Lee N. Perry, White & Morse, Gulfport, for appellee.

Before ROY NOBLE LEE, P.J., and PRATHER and SULLIVAN, JJ.

PRATHER, Justice, for the Court:

The case at bar involves an appeal from the Chancery Court of the First Judicial District of Harrison County, Mississippi wherein the court granted Mildred Wilhelmina Morse O'Neill a divorce from Timothy Peter O'Neill and handled related marital issues.

On appeal, Timothy Peter O'Neill assigns as error, inter alia, the following:

(1) The trial court erred by failing to sustain the appellant's motion to dismiss for lack of jurisdiction over the person of the appellant and in finding in its final judgment that the court had full jurisdiction of both parties.

(2) The trial court erred in failing to sustain the appellant's motion to dismiss for lack of jurisdiction of the subject matter and by finding in its final judgment that the appellee had been an actual bona fide resident citizen of the First Judicial District of Harrison County, Mississippi for more than six months next preceding the filing of her complaint and amended complaint.

I.

Mildred Wilhelmina Morse O'Neill (hereafter Millie) and Timothy Peter O'Neill (hereafter Tim) were married in Gulfport, Mississippi, on October 29, 1983. Millie, a lifelong resident of Gulfport, met Tim while he was assigned to Keesler Air Force Base. In November, 1983, Tim and Millie were reassigned to Germany where their only child, Meghan Nichole O'Neill, was born.

Prior to and following the birth of Meghan, the marriage experienced many problems. By July, 1984, Tim suggested to Millie that she return to Mississippi. Leaving Germany, Millie returned to Gulfport with Meghan on August 18, 1984. With the couple discussing separation and divorce, Tim returned to Mississippi in October to see Millie. While Tim was in the United States, Millie, around November 16, 1984, returned to Germany in order to ship her clothes and belongings to Gulfport.

Upon returning to the United States, Millie proceeded with divorce proceedings against Tim. On December 28, 1984, she filed a complaint seeking a divorce on the grounds of irreconcilable differences. The parties initiated negotiations on a property settlement. However, on April 1, 1985, Tim filed a "request" for a stay of proceedings for six months under the Soldiers' & Sailors' Civil Relief Act. The request was under oath and averred that O'Neill's military duty station in Germany and his duties there materially interferred with his participation in this lawsuit in the United States without a civilian attorney. This instrument specifically stated that the request "is not to be construed as an appearance".

After two more months, Millie filed an amended complaint on May 3, 1985, alleging additional grounds of cruel and inhuman treatment and habitual drunkenness. Notice of the amended complaint was given to Tim by publication requiring an answer thirty (30) days "after the 13th day of May, 1994 ¹ which is the date of the first publication...."

On July 9, 1985, Millie filed a motion to dismiss the stay of proceedings filed by Tim under the Soldiers' & Sailors' Civil Relief Act. Respectively, a hearing on the motion to dismiss was held, but without any apparent notice to Tim, and on July 25 the court ruled that Tim had made an appearance through his request for the stay of the proceedings. The court found that Tim had sufficient notice of the complaint, but was in default for failure to file an answer and granted twenty (20) days to file responsive pleadings to the complaint or suffer default.

On August 12, 1985, Tim, by his now employed civilian attorney, filed a motion to dismiss the divorce bill, under a M.R.C.P. Rule 12(b) motion, for lack of jurisdiction over his person or the subject matter as the plaintiff had not been a resident of Mississippi for six months prior to filing the divorce bill. Both the original and amended sworn complaints for divorce allege that the date of separation of the parties was November 16, 1984.

In response to the subject matter jurisdictional question, Millie then filed an affidavit stating that she had always been a resident of the State of Mississippi and intended to maintain her Mississippi residency, even though she married Tim and subsequently moved with him to his duty assignment in Germany. She asserted that she returned from Germany in August, 1984 and resided there since that date.

Having before it these pleadings and argument of counsel, but apparently without any proof at that time, the chancellor entered an order on September 18, 1985 overruling Tim's motion to dismiss the suit for lack of jurisdiction of the subject matter and his person. On the same date the attorney for Tim filed an answer for him asserting again the jurisdictional defenses and a general denial of the divorce.

Thereafter, a trial date on the divorce was set by the court, and on November 12, 1985 Tim's counsel, by motion, requested a continuance until his tour of duty was over in Germany. On the appointed trial date of November 26, 1985, the court heard the proof on the divorce.

The trial transcript reflects that the court informed defendant's counsel at the conclusion of testimony that the preliminary opinion of the court was that the opportunity for the defendant to conduct his defense was not materially affected by reason of his military service. However, the court stated that it would "reserve a ruling in the case until such time as I have the affidavits which [counsel] mentioned have been sent to Captain O'Neill."

Notwithstanding that reservation, on the same date as the hearing, the record reflects that an absolute divorce was granted to Millie from Tim and ordering other related matters.

Tim, through counsel, moved the court on December 18, 1985, to reconsider its ruling, asserting again the jurisdictional deficiencies, together with other matters.

II.

DID THE TRIAL COURT ERR BY FAILING TO SUSTAIN THE

APPELLANT'S MOTION TO DISMISS FOR LACK OF

JURISDICTION OVER THE PERSON OF THE

APPELLANT?

Tim, as the record reveals, was never a resident of the State of Mississippi. His only connection with the State was his assigned military duty at Keesler Air Force Base. Both in the original complaint and in the amended complaint, Millie stated that Tim was a resident citizen of Minnesota, and that their date of separation was November 16, 1984.

Tim, without the benefit of a Mississippi attorney, sought relief under the Soldiers' & Sailors' Relief Act. That Act at 50 U.S.C.A. Appendix Sec. 521 provides in part:

At any stage thereof any action or proceeding in any court in which a person in military service is involved, either as a plaintiff or defendant, during the period of such service or within sixty days thereafter may, in the discretion of the court in which it is pending, on its own motion, and shall, on application to it by such person ..., be stayed as provided in this Act.... (emphasis added).

This federal statute appertains in both the federal and state courts where military personnel assert it.

Initially, this Court notes that process by publication was issued under M.R.C.P. 4(c)(4)(C), and personal service was not attempted under M.R.C.P. 4(c)(5), which facts are the same as in Noble v. Noble, 502 So.2d 317 (Miss.1987). However, as distinguished from Noble, supra, Tim O'Neill did receive notice by publication as evidenced by the filing of his request for a stay of proceedings. That fact distinguishes this case from Noble, supra. Assuming that the other jurisdictional requirements are met, the chancery court could have determined the divorce and custody issues and adjudged matters relating to property within the state. However, issues of alimony and child support could not be considered in the absence of personal service of process under Rule 4(c)(5), or the defendant's general appearance. Thus, the determination of whether the request for a stay of proceeding constituted an appearance submitting this defendant to in personam jurisdiction is critical.

The trial court held that Tim had entered an appearance by requesting relief under the Soldiers' & Sailors' Relief Act. The court at that time ruled as follows:

That the defendant, Timothy Peter O'Neill, having made an appearance by and through his motion for stay of proceedings filed on behalf of the defendant in this course under the Soldiers' & Sailors' Relief Act has made an appearance for all purposes and this Court has personal jurisdiction of the defendant.

In making the foregoing ruling, the trial court failed to note that Tim was not making a general appearance. Tim's request for relief stated, "This request is not to be construed as an appearance." 2A Moore, W. Taggart & J. Wicker, Moore's Federal Practice Sec. 12.12, (2d ed.1987), states, "Obtaining extensions of time and taking depositions before answering have been held not to constitute a waiver of the defenses of lack of jurisdiction of the person and improper venue."

To reinforce the rationale set out in Moore's Federal Practice, the case, Orange Theater Corp. v. Rayherstz Amusement Corp., 139 F.2d 871 (3 Cal., 1943) presents an issue similar to the case at bar. Prior to an answer being filed in Orange Theater Corp., two continuances were granted to the defendants. Judge Maris, writing for the Court, states:

It necessarily follows that Rule 12 has abolished for the federal court the age old distinction between general and special appearances. A defendant need no longer appear to attack the court's jurisdiction over him.... He may now enter openly in full confidence that he will not thereby be giving up any keys to the courthouse which he possessed before he came in. This, of course is not to say that such keys must not be used properly. If the defense of...