Pearson v. Browning

• Decision Date: 29 January 2013
• Docket Number: No. 2010–CA–02096–COA.,2010–CA–02096–COA.
• Citation: 106 So.3d 845
• Parties: Dennis L. PEARSON, Appellant v. Patricia S. Pearson BROWNING, Appellee.
• Court: Mississippi Court of Appeals

106 So.3d 845

Dennis L. PEARSON, Appellant

v.Patricia S. Pearson BROWNING, Appellee.

No. 2010–CA–02096–COA.

Court of Appeals of Mississippi.

Sept. 4, 2012.

Rehearing Denied Jan. 29, 2013.

Dustin Norman Thomas, Pascagoula, attorney for appellant.

E. Foley Ranson, Ocean Springs, attorney for appellee.

Before GRIFFIS, P.J., BARNES and ISHEE, JJ.

GRIFFIS, P.J., for the Court:

¶ 1. Dennis L. Pearson (“Pearson”) appeals from a judgment of the Chancery Court of Jackson County that held him in willful contempt. The chancellor also granted his ex-wife, Patricia S. Pearson Browning (“Browning”) a judgment in the amount of $53,528.22. On appeal, Pearson argues that the chancery court did not have jurisdiction, pursuant to Mississippi Rule of Civil Procedure 81, when it entered the judgment. We agree. Accordingly, we reverse and render the chancellor's judgment without prejudice.

FACTS

¶ 2. Pearson filed a petition for custody of one of the parties' children, ¹ a reduction in child support, and contempt. He based the contempt allegation on Browning's failure to list both of the children's savings bonds as required by the Final Judgment of Divorce. Browning's counterclaim and “motion,” the only claims tried on November 3, 2010, were for contempt. She argued that Pearson had not paid part of his retirement that the original divorce decree had ordered him to pay to her.

¶ 3. On February 2, 2009, the chancery court dismissed all of Pearson's claims with prejudice. Pearson was not present.

¶ 4. The court set a new date of August 6, 2009, to hear Browning's claims. There is no order on or before August 6, 2009, that set the trial date from August 6, 2009 to November 3, 2010. There is a court administrator's notice, dated June 11, 2010, that set the trial date for November 3, 2010.

¶ 5. On November 1, 2010, Pearson received a letter, dated October 15, 2010, from Browning with the date of trial listed as November 3, 2010. Pearson filed a letter with the court that complained of the short notice. On November 3rd, Pearson appeared before the chancery court pro se and inartfully contested his inability to prepare a defense and bring witnesses on such short notice. Pearson moved for a continuance. The chancery court denied the motion and proceeded with the trial. On November 18, 2010, the chancery court entered an order for Pearson to pay $53,528.22 to Browning.

ANALYSIS

¶ 6. This Court uses a de novo standard when reviewing questions concerning jurisdiction. Sanghi v. Sanghi, 759 So.2d 1250, 1252 (¶ 7) (Miss.Ct.App.2000). “This Court is in the same position as the trial court, with all the facts set out in the pleadings or exhibits.” Id. (citing Sorrells v. R. & R. Custom Coach Works, Inc., 636 So.2d 668, 670 (Miss.1994)).

¶ 7. In this case, jurisdiction is governed by Mississippi Rule of Civil Procedure 81(d)(2), because it includes the “modificationor enforcement of custody, support, and alimony judgments” and “contempt.”

¶ 8. A Rule 81 summons is necessary to begin dormant domestic actions listed in Rule 81(d). A Rule 81 summons is not a Rule 4 summons. SeeM.R.C.P. 4. A Rule 81 summons gives notice to the defendant of the date, time, and place to appear. It does not require a response. A Rule 4 summons requires a written response in thirty days. A Rule 4 summons and a Rule 5 notice have no effect with Rule 81 matters. Sanghi, 759 So.2d at 1253 (¶¶ 11, 14) (citing Leaf River Forest Prods., Inc. v. Deakle, 661 So.2d 188, 194 (Miss.1995); Powell v. Powell, 644 So.2d 269, 273–74 (Miss.1994)); seeM.R.C.P. 5.

¶ 9. In a matter that requires a Rule 81 summons and does not use a Rule 81 summons, the resulting judgment is void because it is made without jurisdiction over the parties. See Bryant, Inc. v. Walters, 493 So.2d 933, 938 (Miss.1986); Duvall v. Duvall, 224 Miss. 546, 555, 80 So.2d 752, 755 (1955); Roberts v. Roberts, 866 So.2d 474, 476–77 (¶¶ 7–8) (Miss.Ct.App.2003). If an action under Rule 81(d)(1) or (2) “is not heard on the day set for hearing, it may by order signed on that day be continued to a later day for hearing without additional summons on the defendant or respondent.” M.R.C.P. 81(d)(5). For no additional Rule 81 summons to be required, the order that continues the trial date must be signed on or before the original trial date.

¶ 10. In this appeal, Pearson argues that Browning failed to comply with Rule 81(d)(5). Specifically, Pearson argues that jurisdiction lapsed because a court administrator's notice changed the trial date of January 22, 2008 to January 23, 2008; an order dated October 24, 2008 changed the trial date of September 18, 2008 to February 2, 2009; a court administrator's notice dated June 11, 2010 changed the trial date of August 6, 2009 to November 3, 2010; and Pearson received a letter on November 1, 2010 about the November 3, 2010 trial.

¶ 11. Our review is limited to events that occurred after February 2, 2009. Because Pearson was the plaintiff prior to February 2, 2009, he cannot properly raise a jurisdictional issue before that date. By the fact that a plaintiff brought his claim, he consents to personal jurisdiction in that court. Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 775, 779, 104 S.Ct. 1473, 79 L.Ed.2d 790 (1984).

¶ 12. Rule 81(d)(5) governs the need for additional summons on the defendant. Before February 2, 2009, Pearson simply was not entitled to a Rule 81 summons because he was the plaintiff.

¶ 13. On February 2, 2009, the chancery court dismissed all of Pearson's claims with prejudice. The only claims left before the court were Browning's contempt claims against Pearson. Hence, after February 2, 2009, Pearson was no longer the plaintiff.

¶ 14. Whether an additional Rule 81 summons was required and, thus, whether the chancery court had jurisdiction over Pearson on November 3, 2010, depends on: (1) whether Browning's “motion” was actually a petition for contempt; (2) whether the court administrator's notice was sufficient to substitute for the lack of a Rule 81 summons; (3) whether Pearson's case is similar to Bailey v. Fischer, 946 So.2d 404 (Miss.Ct.App.2006); and (4) whether Pearson made an appearance, thereby waiving the lack of a Rule 81 summons. We conclude with whether the judgment entered in November 2010 was void.

1. Whether Browning's “motion” was actually a petition for contempt.

¶ 15. Browning filed a motion for a retirement-benefits order on July 30, 2008. Browning argues the document was a motion and service of it was governed by Rule 5 of the Mississippi Rules of Civil Procedure. As defined by Black's Law Dictionary 360 (9th ed.2009), civil contempt is the “failure to obey a court order that was issued for another party's benefit.” In the original divorce proceeding, Pearson had been ordered to pay Browning a portion of his retirement benefits. It is that original order which Browning sought to enforce through her “motion.” Browning's “motion” is actually a petition for contempt. Rule 81(d)(6) only authorizes Rule 5(b) notice for temporary hearings. The matters here are not temporary hearings.

¶ 16. The parties in Carter v. Carter, 735 So.2d 1109, 1112 (¶ 6) (Miss.Ct.App.1999), “persist[ed] in calling their pleadings ‘motions,’ [though] the comment [to Rule 81(d) ] specifically states that ‘[i]nitiating Rule 81(d) actions by ‘motion’ is not intended.' ” “[I]t is envisioned that these recurring disputes[,] including contempt and custody modification proceedings, will be brought to the court's attention ‘by complaint or petition only.’ ” Id. (citing M.R.C.P. 81 cmt.). Rule 81(d)(3) “provides instruction for initiating contempt actions.” Barfield v. State, 749 So.2d 331, 333 n. 1 (Miss.Ct.App.1999) (addressing a motion for contempt as a petition). “[F]iling a ‘motion’ is not proper procedure....” Glass v. Glass, 857 So.2d 786, 792 (¶ 22) (Miss.Ct.App.2003) (Bridges, J., concurring); see also Magee v. Magee, 754 So.2d 1275, 1281 (¶ 15) (Miss.Ct.App.1999). Parties should begin “proceeding[s] with a properly served complaint or petition.” Glass, 857 So.2d at 792 (¶ 22).

¶ 17. Calling a “petition for contempt” a “motion” and using motion procedures with contempt actions is incorrect according to Rule 81. Harris v. Harris, 879 So.2d 457, 458 n. 1 (Miss.Ct.App.2004). We recognized in Sanghi that the petitions there were denominated and noticed procedurally as “motions.” No summons was included with those “motions,” just as in the instant case. See Sanghi, 759 So.2d at 1253 (¶ 10). A petition, not a motion, is to be filed where a party is seeking contempt. Id. at 1255 (¶ 26).

¶ 18. Motions may be served by first-class mail. M.R.C.P. 5(b). The procedural mechanisms that apply to motions do not apply to contempt matters. Sanghi, 759 So.2d at 1256 (¶ 30). This has been the case since 1986 when Rule 81 was amended to that effect. Accordingly, service by mail of only Browning's “motion,” without a Rule 81 summons, was not appropriate.

2. Whether the court administrator's notice was sufficient to substitute for the lack of a Rule 81 summons.

¶ 19. Pearson was entitled to the rights of a defendant after February 2, 2009. In February 2009, the chancery court set a new trial date of August 6, 2009, to hear Browning's claims against Pearson. On August 6, 2009, there was no court order or clerk's setting, as required by Rule 81(d)(5) if no additional Rule 81 summons was issued on or before the original trial date, that changed the trial date from August 6, 2009 to November 3, 2010.

¶ 20. Also, on or before August 6, 2009, there was no court administrator's notice that changed the trial date. The court administrator did not send notice of the trial-date change from August 6, 2009 to November 3, 2010, until ten months after August 6, 2009.

¶ 21. The court administrator's notice of the change from August 6, 2009 to November 3, 2010, was not a Rule 81(d) summons. It did provide some of the relevant information. But, Rule 81 requires that a party be told the time and place...