Noble v. Noble

• Decision Date: 04 February 1987
• Docket Number: No. 57295,57295
• Citation: 502 So.2d 317
• Parties: Dorothy J. NOBLE v. Eli W. NOBLE.
• Court: Mississippi Supreme Court

Page 317

502 So.2d 317

Dorothy J. NOBLE v. Eli W. NOBLE.

No. 57295.

Supreme Court of Mississippi.

Feb. 4, 1987.

C. Everette Boutwell, Laurel, for appellant.

Eli W. Noble, pro se.

En Banc.

PRATHER, Justice, for the Court:

The extent to which in personam judgment may be rendered after service of summons upon a non-resident pursuant to M.R.C.P. 4 is the subject of this appeal. The Chancery Court of Jones County declined to enter a money judgment against the defendant/appellee when summons was effected by publication and by mailing of a copy by non-certified first class mail.

Appellant appeals asserting that a summons upon a non-resident defendant and first class mailing by the court clerk provided in personam jurisdiction to render a money judgment. This Court affirms the trial court.

I.

Dorothy J. Noble and Eli W. Noble were married June 5, 1956, in Ellisville, Mississippi and from that union two children were born. The husband/appellee was permanent military personnel in the United States Armed Forces and claimed Mississippi as his residence at all times pertinent here until his retirement from the military on May 15, 1984. The parties separated in Frankfurt, Germany on January 10, 1982, when the appellant returned to Jones County, Mississippi. After retirement, appellee resided in Columbia, South Carolina, where he still resides.

Dorothy Noble filed for a divorce, attorneys' fees, alimony, and other relief on October 22, 1985, and summons upon the defendant was issued by non-resident publication in the newspaper. Copy of the publication notice was mailed, first class, to defendant at his post office address in Columbia, South Carolina. The defendant did not answer the complaint or make any other response. On January 31, 1986, the chancery court granted Dorothy Noble a divorce, but retained jurisdiction to award permanent alimony, attorney's fees and other relief, including a division of the defendant's military retirement pay pursuant to the Uniformed Services Former Spouses' Protection Act. 10 U.S.C. Sec. 1408, pending sufficient process upon the defendant.

Thereafter, on February 7, 1986 appellant filed a motion to alter the final decree regarding the monetary items on the ground that the court erred in ruling that it had no jurisdiction to render a personal judgment. From a denial of the motion this appeal was pursued.

II.

The issue presented here is whether summons issued under Mississippi Rule of Civil Procedure 4(c)(4)(C) is sufficient to confer personal jurisdiction over a non-resident defendant for purposes of rendering a monetary judgment against such defendant.

Mississippi Rules of Civil Procedure were first adopted effective January 1, 1982, which rules contained within them Rule 4 regarding process. Thereafter, by order of this Court, Rule 4 was amended by deletion and substitution of the following language: "[P]rocess shall be issued and served in the form and manner proscribed by statute" effective May 1, 1982. On December 28, 1984, this Court by order adopted present Rule 4 to be effective in all civil actions filed after March 1, 1985, which order stated that the rule controlled over any statute.

For purposes of this opinion, Rule 4(c)(4)(A) and Rule 4(c)(4)(C) were the sections followed for summons upon Eli Noble as a non-resident defendant as follows:

(4) By Publication

(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

....

(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.

This section of the rule follows closely the old statute Miss.Code Ann. Sec. 13-3-19 (Supp.1972) under which statute personam jurisdiction was not acquired.

There is an additional section in Rule 4(c)(5) providing for an alternative method of service on non-residents as follows:

(5) Alternate Service on Person Outside State. In addition to service by any other method provided by this rule, a summons may be served on a person outside this state by sending a copy of the summons and of the complaint to the person to be served by certified mail, return receipt requested. Where the defendant is a natural person, the envelope containing the summons and complaint shall be marked "restricted delivery." Service by this method shall be deemed complete as of the date of delivery as evidenced by the return receipt or by the returned envelope marked "Refused."

This rule is somewhat analogous to the old statutory procedure in child support cases for personal jurisdiction over non-resident defendants of Miss.Code Ann. Sec. 93-11-67.

In this case, the plaintiff followed Rule 4(c)(4)(A) by publication and a mailing of the publication, first class mail service, postage prepaid, to the defendant at his post office address. The question is whether the forum court in Mississippi has personal jurisdiction over the non-resident defendant in South Carolina under federal and state laws. The United States Supreme Court has set forth the federal constitutional requirements in Kulko v. California Superior Court, 436 U.S. 84, 91, 98 S.Ct. 1690, 1696, 56 L.Ed.2d 132, 140 (1978), in this language:

The Due Process Clause of the Fourteenth Amendment operates as a limitation on the jurisdiction of state courts to enter judgments affecting rights or interests of nonresident defendants. See Shaffer v. Heitner, 433 U.S. 186, 198-200, 53 L.Ed.2d 683, 97 S.Ct. 2569 [2577] (1977). 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. Pennoyer v. Neff, 95 U.S. [ (5 Otto) ] 714, 732-733, 24 L.Ed. 565 (1878); International Shoe Co. v. Washington, 326 U.S. at 316, 90 L.Ed. 95, 66 S.Ct. 154 , 161 ALR 1057. The existence of personal jurisdiction, in turn, depends upon the presence of reasonable notice to the defendant that an action has been brought. Mullane v. Central Hanover Trust Co., 339 U.S. 306, 313-314, 94 L.Ed. 865, 70 S.Ct. 652 [656-657] (1950), 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. Milliken v. Meyer, 311 U.S. 457, 463-464, 85 L.Ed. 278, 61 S.Ct. 339 [342-343], 132 ALR 1357 (1940). In this case appellant does not dispute the adequacy of the notice that he received, but contends that his connection with the State of California is too attenuated, under the standards implicit in the Due Process Clause of the Constitution, to justify imposing upon him the burden and inconvenience of defense in California.

Applying these federal standards, as well as our state standards for summons, this Court concludes that the defendant/appellee had more than sufficient nexus with the forum state of Mississippi to satisfy the latter requirement. As to the requirement of adequate notice to the defendant, this Court concludes that, absent some proof of defendant's receipt of summons, the reasonableness of notice is questionable. It is acknowledged that the mail was not returned to the clerk, but this Court holds that at the trial court level, the adequacy of notice test is not met for rendition of a monetary judgment. ¹ There can be no "valid judgment imposing a personal obligation or duty in favor of the plaintiff" against this defendant under this process.

This summons does 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. 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.

It is noteworthy to add, however, that notwithstanding this Court's holding that the Chancery Court of Jones County properly held that it could not render a personal monetary judgment against the non-resident defendant on this summons, it was not totally without jurisdiction. The Chancery Court did have jurisdiction over the subject matter of the divorce action and personal jurisdiction over one of the parties to the marriage who did meet residency requirements for a divorce action. Miss.Code Ann. Sec. 93-5-5 (Supp.1986). This statutory authority and...