Reasor v. Jordan

• Decision Date: 04 April 2013
• Docket Number: No. 2011–CA–01401–SCT.,2011–CA–01401–SCT.
• Court: Mississippi Supreme Court
• Parties: Frankie L. REASOR v. Rose M. Johnson JORDAN.

110 So.3d 307

Frankie L. REASOR

v.Rose M. Johnson JORDAN.

No. 2011–CA–01401–SCT.

Supreme Court of Mississippi.

April 4, 2013.

Carol Ann Estes Bustin, attorney for appellant.

Candance L. Rickman, attorney for appellee.

EN BANC.

KING, Justice, for the Court:

¶ 1. After a lengthy battle regarding child custody, visitation, and child support, a chancellor granted Frankie Reasor custody of his teenage daughter. But the chancellor found Reasor in arrears on child-support payments, held him in contempt, and entered a judgment in favor of Rose Jordan for back child support. This appeal concerns a subsequent hearing in which a second chancellor determined the amount of arrears, entered a fifty-five-percent withholding order to collect the judgment, and ordered Reasor to pay Jordan's attorney's fees.

¶ 2. Reasor raises five issues on appeal:

I. Whether the chancellor erred by proceeding with trial without Reasor's counsel present.

II. Whether the chancellor erred in finding Reasor in contempt without the requisite Rule 81(d) notice.

III. Whether the chancellor erred by conducting a hearing on Jordan's motion for status conference.

IV. Whether the chancellor erred by not considering other issues pending before the court.

V. Whether the chancellor erred by entering a fifty-five-percent withholding order.

On the first four issues, we affirm the chancellor's rulings. However, we find the chancellor erred by entering a fifty-five-percent withholding order.

FACTS AND PROCEDURAL HISTORY

¶ 3. According to Reasor, Jordan had denied him visitation. Thus, in 2000, he filed a complaint to establish visitation rights with his daughter. Reasor also had requested the court determine his child-support obligation. On June 14, 2001, the chancellor entered an order which granted Reasor visitation and ordered him to pay $283 per month in child support and $78.40 toward the child's medical insurance.

¶ 4. In 2005, Reasor filed a complaint to obtain custody of his daughter. In his complaint, Reasor stated that Jordan had denied him visitation because of his failure to pay child support. This complaint later was dismissed for want of prosecution.

¶ 5. In 2008, Jordan filed a petition for contempt against Reasor, claiming that he had failed to make child-support and medical-insurance payments. She submitted a support-collections ledger with her petition, which showed that Reasor's last payment had been made February 24, 2004. In response, Reasor filed an answer and counterclaim for custody of their teenage daughter, alleging a material change in circumstances.¹ The child filed a “Selection of Custodial Parent,” electing to live with Reasor. Based on the parties' agreement, the chancellor entered a judgment on December 23, 2008, which granted Reasor custody and ruled in favor of Jordan on the child-support-arrears issue. The judgment stated that:

It is further considered, ordered, and adjudged that a judgment will be entered in favor of the Petitioner for the arrearage as requested in her Petition for Contempt and at such time as the Court reviews the financial information, the undersigned Chancellor shall enter an order as to the issue of contempt as it relates to the arrearage.

¶ 6. Years went by without any formal action in the case.² Then, on September 15, 2010, Jordan filed a “Motion for Status Conference,” stating that the 2008 judgment was silent on the child-support arrearage assessed against Reasor and requesting the chancellor to determine the amount owed. On October 12, 2010, Reasor's attorney filed a motion to withdraw as counsel, raising health issues. The court never ruled on the motion to withdraw. Jordan's “Motion for Status Conference” was set for hearing twice and finally heard in August 2011.³

¶ 7. Reasor attended the hearing pro se, and a different chancellor presided over the case. During the hearing, Reasor agreed that he was in arrears. Reasor explained, “... I haven't [paid] ... because I haven't been told what I was supposed to pay.” Reasor further explained:

I was told by Judge Thomas that I was supposed to provide a financial statement, and once we both did that, within two weeks we would decide how much I was supposed to pay ... I never got it, so I don't know what I'm supposed to pay. I'm here because I thought that was what I was here for, to find out what I was supposed to pay. It was already determined I was in arrears. This was not forced child-support. I put myself on child-support, and I cut it off. I did. Maybe I shouldn't have, but I thought the same thing about not being able to see my child, not being able to talk to her. I felt like that was wrong too, and I cut if off. I did. So I realize that I do owe some money....

Jordan testified that, since the 2008 hearing, Reasor had not paid toward the judgment.

¶ 8. The chancellor questioned Reasor about his finances, employment, and living expenses. On August 19, 2011, the chancellor entered judgment for Jordan and ordered Reasor to pay $24,428.37 in arrears and $2,000 in attorney's fees. The chancellor also entered an order to withhold fifty-five percent of Reasor's monthly income until the judgment was paid in full. The chancellor reserved his ruling on contempt and reset the matter to be reviewed during the next term of court Aggrieved, Reasor, now represented by counsel, timely filed his notice of appeal.

ANALYSIS

I. Due Process: Right to Counsel

¶ 9. Because the chancellor proceeded with the hearing absent Reasor's attorney, Reasor argues that he was denied due process.⁴ He also claims that the chancellor erred by not inquiring into his attorney's whereabouts. Alternatively, Reasor contends that he had a right to representation—even appointed counsel—because he could have been incarcerated if held in contempt of court. Jordan argues that Reasor was given due process.

¶ 10. A party is not entitled to a lawyer in a civil proceeding of this nature. Goodin v. Miss. Dep't of Human Servs., 772 So.2d 1051, 1055 (¶ 12) (Miss.2000) (finding chancellor did not err by requiring defendant to represent himself in back-child-support action). In fact, the Mississippi Constitution grants litigants the right to represent themselves. Miss. Const. art. 3, § 26. “[C]ounsel should be appointed only in cases in which, if the unrepresented party loses, he ‘may be deprived of his physical liberty.’ ” Goodin, 772 So.2d at 1055 (¶ 12) (quoting Lassiter v. Dep't of Soc. Servs. of Durham County, N.C., 452 U.S. 18, 26–27, 101 S.Ct. 2153, 2159, 68 L.Ed.2d 640, 649 (1981)).

¶ 11. In 2008, the chancery court had entered a judgment against Reasor, finding him in arrears, but the order did not state the amount owed. After Reasor's attorney had filed the motion to withdraw as counsel, Reasor had ten months to secure new counsel before the 2011 hearing. He neither secured new counsel nor requested a continuance.⁵

¶ 12. During the 2011 hearing, Reasor admitted he had not paid his arrears; he knew he owed something; but he was waiting for the court to provide that information. In the 2011 hearing, the chancellor did exactly this—performed a mechanical computation to determine the amount owed by Reasor to Jordan. The chancellor declined to address the contempt issue, setting the case for review at a later date.

¶ 13. We find that the chancellor did not err by allowing Reasor to proceed pro se. Also, because the chancellor did not address contempt in the 2011 hearing, we find Reasor was not denied due process. This issue is without merit.

II. Due Process: Notice

¶ 14. Reasor claims that he was not served properly with notice of the 2008 and 2011 hearings pursuant to Mississippi Rule of Civil Procedure 81(d).⁶ Thus, he claims any subsequent ruling was erroneous. Jordan argues that this was not a contempt proceeding; thus Rule 81(d) notice was unnecessary. Furthermore, because Reasor failed to raise this claim below, Jordan contends the issue is barred from review.

¶ 15. Following the 2008 hearing, the parties reached an agreement regarding custody and the child-support arrearage.⁷ Based on this agreement, the chancellor entered an order awarding custody to Reasor and finding Reasor in arrears. The chancellor reserved ruling on the amount Reasor owed to Jordan. Reasor, then represented by counsel, failed to object to service of process at this hearing. As noted in footnote six of this opinion and by the dissent, “the right to contest the court's jurisdiction based upon a claimed problem with service may be lost after making an appearance in the case if the issues related to jurisdiction are not raised at the first opportunity.” Pierce, J., Sep. Op. at ¶ 41.

¶ 16. Jordan filed her “Motion for Status Conference” and requested the court to determine the amount Reasor owed her. At no time did she request that Reasor be held in contempt. During the 2011 hearing, Reasor indicated “I'm here because I thought that was what I was here for, to find out what I was supposed to pay. It was already determined I was in arrears. This was not forced child-support. I put myself on child-support.” The chancellor determined the amount of arrears owed but did not rule on any contempt claims, resetting the issue to be reviewed at a later date. Again, Reasor failed to raise any service-of-process claim at the 2011 hearing.

¶ 17. This Court is not obliged to review issues unless they are properly preserved for appeal. Dennis v. Dennis, 824 So.2d 604, 611 (¶ 18) (Miss.2002). When a person elects to proceed pro se, he “is bound by the same rules of practice and procedure as an attorney.” Bullard v. Morris, 547 So.2d 789, 790 (Miss.1989). Because Reasor failed to claim insufficient service of process at both hearings, we find the issue has been waived and is barred procedurally from review. See Dennis, 824 So.2d at 611 (¶ 18) (the defendant voluntarily appeared before the court, allowed the chancellor to adjudicate his claims, and failed to raise the alleged insufficiency of process below). Furthermore,...