Pace v. Pace

• Decision Date: 24 March 2009
• Docket Number: No. 2007-CP-01052-COA.,2007-CP-01052-COA.
• Citation: 16 So.3d 734
• Parties: David Maxwell PACE, Appellant, v. Sally PACE, Appellee.
• Court: Mississippi Court of Appeals

16 So.3d 734

David Maxwell PACE, Appellant, v. Sally PACE, Appellee.

No. 2007-CP-01052-COA.

Court of Appeals of Mississippi.

March 24, 2009.

Rehearing Denied September 1, 2009.

David Maxwell Pace, pro se.

Sally Pace, pro se.

EN BANC.

KING, C.J., for the court.

FACTS AND PROCEDURAL HISTORY

¶ 1. David Maxwell Pace and Sally Pace were married on April 30, 2002, and separated in June of that same year. Sally filed for divorce on February 26, 2003, in the Jackson County Chancery Court. On March 31, 2007, she was granted a divorce on the ground of habitual cruel and inhuman treatment. David and Sally were married for approximately five years, but the couple never lived together and had no joint property or bank accounts. Sally lived in Gautier, Mississippi, and David lived in Orange Beach, Alabama. Sally stayed with David on two or three weekends during the two months before they separated. The couple had one child together, David Cruise Pace (Cruise), who was born prior to the marriage on November 13, 1998. During the time that the couple was separated, Sally gave birth to another child, Stormy Langley, on July 7, 2005. Russell Langley is listed as Stormy's father on her birth certificate.

¶ 2. The Jackson County Chancery Court tried this matter on March 14, 2007. Both Sally and David were represented by counsel. Sally as well as Kathy Garrison, a friend of Sally's, testified regarding David and Sally's relationship. David was not present at the trial. David claimed that an emergency had occurred, which required him to take an adult son from a previous marriage to the hospital. The trial court denied a continuance requested by David's attorney because there was no proof that David was actually at the hospital. Sally informed the chancellor that during lunch, she had called and spoken with David at work. Based on the testimony of Sally and Garrison, the chancellor granted the divorce on the ground of habitual cruel and inhuman treatment and awarded physical custody of the couple's child to Sally. The chancellor established a visitation schedule and ordered David to pay $300 a month in child support.

¶ 3. David now appeals the order of the chancellor, asserting the following issues: (1) the chancellor did not have in personam jurisdiction over him; (2) the chancellor erred in granting a divorce based on habitual cruel and inhuman treatment; (3) the chancellor erred in failing to grant a continuance; and (4) the chancellor erred in not ordering a DNA test to prove the paternity of Stormy. Finding no prejudicial error, we affirm.

STANDARD OF REVIEW

¶ 4. Our standard of review on appeals from chancery court is limited. Reddell v. Reddell, 696 So.2d 287, 288 (Miss.1997). "The chancellor's findings of fact should not be interfered with unless they were `manifestly wrong, clearly erroneous or an erroneous legal standard was applied.'" Isom v. Jernigan, 840 So.2d 104, 106(¶ 6) (Miss.2003) (quoting Bell v. Parker, 563 So.2d 594, 596-97 (Miss.1990)). Questions of law, however, are reviewed de novo. Id.

DISCUSSION

I. WHETHER THE CHANCELLOR HAD IN PERSONAM JURISDICTION OVER THE PARTIES.

¶ 5. David argues that because he was never served with a summons, the chancery court lacked in personam jurisdiction over him and, therefore, could not lawfully grant a divorce. In his order granting the divorce, the chancellor held that jurisdiction was proper and denied all outstanding motions, including David's motion to dismiss for lack of jurisdiction.

¶ 6. In her complaint for divorce and motion for ex parte relief regarding child custody filed on February 26, 2003, Sally declared that David's current post office box, street address, and place of residence were unknown to her after diligent search and inquiry.¹ On that same day, the chancellor ruled on Sally's motion for ex parte relief, which requested that David return the couple's son to her. Sally had permitted their son to visit with David on February 18, with the agreement that the child would be returned on February 25. Sally filed her complaint for divorce and motion for ex parte relief after David failed to return the child as agreed. On February 26, 2003, the chancellor granted Sally temporary custody upon the grounds that the child normally resided with her and needed medication which David could not provide him. David was served with an attested copy of the order granting ex parte relief, which also set the temporary custody issue for a hearing on March 14, 2003, at 9:00 a.m.

¶ 7. In response to the February 26 order, David appeared before the chancellor on March 14, 2003. At that time, the parties and their attorneys signed an agreed order dissolving the temporary ex parte order, establishing custody and a visitation schedule, and setting the case for trial on March 26, 2003. The case was not tried on March 26, 2003. However, on March 26, 2003, David filed a motion to contest jurisdiction. In that motion David stated that: (1) he had not been served with a summons or complaint, and (2) he had appeared in this case on March 14, 2003, in response to the February 26, 2003, temporary order.

¶ 8. On May 9, 2003, David filed a document entitled "Answer and Motion for Temporary Relief," in which he responded to the divorce complaint and requested that the trial court grant him custody of the minor child, or reasonable visitation, and "such other relief to which he may be entitled." In response, on June 4, 2003, the chancellor signed another temporary order. This order (1) gave the parties joint legal custody with primary physical custody given to Sally, (2) established a formal visitation schedule, (3) established temporary child support, and (4) set an October 14, 2003, trial date.

¶ 9. On July 10, 2003, David filed a "Motion to Reconsider and to Modify Custody Order" asking for a reduction in child support or paramount custody of the child. On August 14, 2003, the chancellor ordered this motion and a contempt motion by Sally to be heard by the Family Master. On September 30, 2003, Sally served her answers to David's interrogatories. On October 6, 2003, David, acting pro se, filed a motion for additional time to respond to the contempt motion and to reschedule the hearing.

¶ 10. The final ruling in this action did not occur until four years later. During that time, no ruling had been on David's motion contesting jurisdiction. On March 14, 2007, just before the chancellor made his ruling granting the divorce based on habitual cruel and inhuman treatment, David's attorney reminded the chancellor that there was an outstanding motion objecting to jurisdiction. The chancellor stated that all outstanding motions were denied and entered a final judgment of divorce.

¶ 11. In order for a judgment of a court to be valid, the court must have personal jurisdiction over the parties to the action. James v. McMullen, 733 So.2d 358, 359(¶ 3) (Miss.Ct.App.1999) (quoting Rice v. McMullen, 207 Miss. 706, 727, 43 So.2d 195, 201 (1949)). "The existence of personal jurisdiction, in turn, depends upon the presence of reasonable notice to the defendant that an action has been brought." Noble v. Noble, 502 So.2d 317, 320 (Miss.1987) (quoting Kulko v. Superior Court of California, 436 U.S. 84, 91, 98 S.Ct. 1690, 56 L.Ed.2d 132 (1978)). However, "absent some proof of [the] defendant's receipt of summons, the reasonableness of notice is questionable." Id.

¶ 12. No mention is made of service of process in the record other than Sally's contention that she was unable to determine an address at which to serve process on David. Mississippi Rule of Civil Procedure 4(h) states: "If a service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint ... the action shall be dismissed as to that defendant without prejudice upon the court's own initiative with notice to such party or upon motion." "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." Kolikas v. Kolikas, 821 So.2d 874, 878(¶ 17) (Miss.Ct.App.2002). Therefore, absent some proof that process was served upon David, the chancellor lacked jurisdiction to hear this matter unless David is deemed to have consented to jurisdiction by making a general appearance. Id.

¶ 13. Mississippi Rule of Civil Procedure 12(h)(1) states:

A defense of ... insufficiency of process, or insufficiency of service of process is waived (A) if omitted from a motion in the circumstances described in subdivision (g), or (B) if it is neither made by a motion under this rule nor included in a responsive pleading or an amendment thereof permitted by Rule 15(a) to be made as a matter of course.

While David objected to jurisdiction by motion on March 26, 2003, and continued at various points to object to jurisdiction, we find that David's actions throughout the proceedings are inconsistent with his assertion of lack of jurisdiction.

¶ 14. While he later objected to jurisdiction, David appeared at the ex parte hearing on March 14, 2003. At that time, he both "approved and agreed" to that order which temporarily (1) provided for the parties to have joint legal custody, (2) placed physical custody with Sally, (3) established formal visitation, and (4) set the matter for trial on March 26, 2003. Even after he objected to the court's jurisdiction, David continued to make requests for relief from the chancery court and to file various motions, including: to hold Sally in contempt, to reconsider the order, to modify custody, and for leave to establish paternity.

¶ 15. "Mississippi does not recognize `special appearances' except where a party appears solely to object to the court's jurisdiction over her person on grounds that she is not amenable to process. One waives process and service, however, upon making a general appearance." Isom, 840 So.2d at 107(¶ 9) (internal citation omitted). This Court finds that by voluntarily appearing and...