Peterson v. Peterson

• Decision Date: 17 November 1994
• Docket Number: No. 93-CA-00273,93-CA-00273
• Parties: Rebecca E. PETERSON v. John H. PETERSON.
• Court: Mississippi Supreme Court

Page 54

648 So.2d 54

Rebecca E. PETERSON v. John H. PETERSON.

No. 93-CA-00273.

Supreme Court of Mississippi.

Nov. 17, 1994.

As Modified on Denial of Rehearing

Jan. 19, 1995.

Alfred Lee Felder, McComb, for appellant.

W. Bruce Lewis, Gwin Lewis & Punches, Natchez, for appellee.

Before DAN M. LEE, P.J., and McRAE and SMITH, JJ.

McRAE, Justice, for the Court:

This appeal arose from a February 4, 1993 order of the Jefferson County Chancery Court which dismissed Rebecca Peterson's motion to set aside a property settlement agreement and other relief filed pursuant to M.R.C.P. 60(b)(6) and 60(b)(4). At issue is whether a waiver and entry of appearance form signed on the same day the divorce was filed, but dated the following day, is simply an irregularity or whether it fails to meet the requirements of M.R.C.P. 4(e) and serves to void the divorce and property settlement. We find such failure, coupled with other irregularities, to warrant a reversal. Also at issue is whether the trial judge erred in holding that Rebecca could not attack the validity of the judgment with facts beyond the record. We affirm on this issue.

I. FACTS

John and Rebecca Peterson were married on November 20, 1967 in Las Vegas, Nevada. They are the parents of four children, only one of whom was unemancipated at the time of these proceedings. On Friday, May 27, 1988, John Peterson filed for divorce on grounds of habitual cruel and inhuman treatment in the Jefferson County Chancery Court. As the Special Chancellor noted, the complaint was worded similarly to a complaint for divorce on grounds of irreconcilable differences, providing for settlement of child custody and property division matters. A document entitled "Property Settlement and Child Custody Agreement" was signed by both parties and dated and filed May 27, 1988. Also on May 27, 1988, Rebecca Peterson signed a waiver of process and entry of appearance form which was dated and marked as filed Saturday, May 28, 1988. Without further ado, a final decree of divorce was entered after the Memorial Day holiday, on May 31, 1988. An amended property settlement was entered on June 3, 1988, along with a quitclaim deed conveying all real property jointly owned by the parties to John Peterson. Under the terms of the agreement, Rebecca Peterson would receive $500.00 per month beginning June 1, 1988 and ending May 1, 1989; within three years, an interest in real estate not to exceed $10,000.00; and a 1986 Nissan pick-up truck.

On January 23, 1989, Rebecca Peterson filed a motion to set aside the property agreement, for injunctive relief, and for other relief. She alleged that through the parties' joint efforts, assets worth approximately $1 million had been acquired during the course of the marriage, including the marital dwelling, a McDonald's franchise which was sold in March, 1988, several parcels of land in Jefferson County, cattle and farm equipment. She further alleged that she had signed both the original and amended property settlements under duress, coercion, intimidation and threats, "for fear of being physically abused and injured." She sought an equitable distribution of the assets accumulated during the marriage and the issuance of an injunction to enjoin John Peterson and XYZ Defendants from disposing of the assets. The chancellor issued a temporary restraining order on January 23, 1989, enjoining the disposition of assets accumulated during the marriage until a hearing could be held on the matter. John Peterson's motion to dismiss was overruled by the chancellor on March 30, 1989.

John Peterson filed a motion for summary judgment on September 15, 1992, asserting that Rebecca's claims were barred by her failure to timely pursue the case as well as her conduct subsequent to the divorce. That motion was denied on October 30, 1992. Referring to his October 1, 1992 order bifurcating the issues, the chancellor ordered that an initial trial would be held in January, 1993 to consider whether the decree and property settlement were void pursuant to Rules 60(b)(4) and 60(b)(6).

On January 25, 1993, the special chancellor entered an order in favor of John Peterson and dismissed Rebecca Peterson's complaint. He found that Rebecca was not entitled to challenge the validity of the judgment using facts outside the record, and further, even if she were, "what transpired with regard to the waiver could only be denominated as irregular or improper."

II. DISCUSSION OF LAW

A. DID THE TRIAL COURT ERR IN HOLDING THAT IT WAS SIMPLY AN IRREGULARITY THAT A WAIVER AND ENTRY OF APPEARANCE WAS SIGNED THE SAME DAY AS THE COMPLAINT FOR DIVORCE WAS FILED?

Rule 4(e) of the Mississippi Rules of Civil Procedure provides as follows:

Waiver. Any party defendant who is not an unmarried minor, mentally incompetent, or convict of felony may, without filing any pleading therein, waive the service of process or enter his or her appearance, either or both, in any action, with the same effect as if he or she had been duly served with process, in the manner required by law on the day of the date thereof. Such waiver of service or entry of appearance shall be in writing dated and signed by the defendant and duly sworn to or acknowledged by him or her, or his or her signature thereto be proven by two (2) subscribing witnesses before some officer authorized to administer oaths. Any guardian or conservator may likewise waive process on himself and/or his ward, and any executor, administrator or trustee may likewise waive process on himself in his fiduciary capacity. However, such written waiver of service or entry of appearance must be executed after the day on which the action was commenced and be filed among the papers in the cause and noted on the general docket.

M.R.C.P. 4(e) (emphasis added). Miss.Code Ann. Sec. 13-3-71 (1972), which tracked the language of the rule, was repealed effective July 1, 1991. ¹ 1991 Miss.Laws ch. 573, Sec. 141.

John Peterson filed for divorce on grounds of cruel and inhuman treatment on May 27, 1988. That same day, contrary to the statute, Rebecca Peterson also signed a waiver of process and entry of appearance form which had been pre-dated May 28, 1988.

Rebecca contends that because she actually signed the waiver and entry of appearance form on May 27, 1988, the day on which John Peterson filed the complaint for divorce, and not on May 28, 1988, the date typed on the form, the ensuing divorce and property settlement are void or voidable. She testified that she signed the documents under duress, fearing physical abuse and John's threats to have her put in jail. John, however, asserts that she had notice of the divorce and that she waived any defect by waiting eight months to challenge the document and by her reliance on the divorce decree in her conduct with other men.

In divorce cases, the Mississippi Rules of Civil Procedure have only limited applicability; rather, proceedings are governed by Miss.Code Ann. Sec. 93-5-1 et seq. Holmes v. Holmes, 628 So.2d 1361, 1363 (Miss.1993); Rawson v. Buta, 609 So.2d 426, 430 (Miss.1992). However, where the statutes are silent, the Rules govern. Holmes, 628 So.2d at 1363; Rawson, 609 So.2d at 430. The divorce statutes do not cover the issue of waiver, therefore, the language of M.R.C.P. 4(e) controls whether pre-dating the waiver is a violation, making the divorce decree void or voidable, or whether it is merely an irregularity.

In Matter of Adoption of A Minor, 558 So.2d 854 (Miss.1990), this Court addressed waivers in the context of a birth mother's consent to adoption. Observing that the consent to adoption and waiver of process were executed on the same day that the petition for adoption was filed, the Court reiterated that Rule 4 and former Miss.Code Ann. Sec. 13-3-71 "clearly require that the waiver be executed on a day following." 558 So.2d at 857. Although this Court refused to find that the waiver was ineffective, it expressed concern over the entire adoption proceeding at bar and stated "[p]rudence and careful legal draftsmanship at least suggest, however, that any document headed 'waiver' be executed on a...