Reichert v. Reichert, 2001-CA-00491-COA.

• Decision Date: 19 February 2002
• Docket Number: No. 2001-CA-00491-COA.,2001-CA-00491-COA.
• Citation: 807 So.2d 1282
• Parties: Wallace Lee REICHERT, Appellant v. Cynthia Kazery REICHERT, Appellee.
• Court: Mississippi Court of Appeals

807 So.2d 1282

Wallace Lee REICHERT, Appellant v. Cynthia Kazery REICHERT, Appellee.

No. 2001-CA-00491-COA.

Court of Appeals of Mississippi.

February 19, 2002.

B. Ruth Johnson, Jackson, for Appellant.

V. Douglas Gunter, Jackson, for Appellee.

Before KING, P.J., IRVING, and BRANTLEY, JJ.

BRANTLEY, J., for the Court.

¶ 1. Wallace Reichert filed a motion for relief from a final judgment of the Hinds County Chancery Court finding him in willful contempt for failure to comply with various provisions of his divorce decree concerning support and maintenance of his children. The chancellor denied this motion finding that Wallace's appeal was too remote in time and that proper notice had been given of the proceedings. Wallace appeals this decision and asserts that the contempt judgment is void and must be set aside because he did not receive a summons as required by Mississippi Rule of Civil Procedure 81(d)(5). In finding that Wallace's appeal has merit, we reverse the chancellor's judgment on the motion for relief and render the contempt judgment of December 5, 1994, void.

FACTS AND PROCEDURAL HISTORY

¶ 2. Wallace Reichert and Cynthia Reichert were married and had two sons, Taylor and Hunter. Cynthia filed for divorce and on June 28, 1993, the chancery court entered a temporary order setting custody, support, visitation, distribution of property and other orders.

¶ 3. On February 10, 1994, the chancery court entered a judgment of divorce on the grounds of habitual, cruel, and inhuman treatment by Wallace. Cynthia was awarded custody of the sons and child support in the amount of $425 per month until their majority or emancipation. In addition, Wallace was ordered to maintain full medical, dental, and hospital insurance coverage for the children, and pay half of all medical expenses not covered by insurance. Cynthia was to pay the claims and submit all medical bills incurred by the children to Wallace for reimbursement from him within thirty days. Furthermore, Wallace was responsible for the home's monthly mortgage note, hazard insurance, property taxes, and all attorney's fees and costs of the divorce.

¶ 4. On October 26, 1994, Cynthia filed a petition for contempt, claiming that Wallace was $11,467.61 in arrears for failure to pay his obligations set forth in the temporary order and final divorce judgment. A notice of hearing and certificate of service were filed along with the petition for contempt. The notice of hearing stated that Cynthia would present her petition for contempt in the Hinds County Chancery Court before Chancellor Wise on November 28, 1994, at 1:30 P.M. The certificate of service stated that the notice and petition was personally served on Wallace by the Sheriff of Thomas County, Georgia. The court record does not reflect that a summons was issued and filed in the chancery court. Wallace argues that he never received the notice of hearing.

¶ 5. On November 8, 1994, a proof of service was executed using a prepared form which stated in the first line, "I, the undersigned process server, served the summons and complaint upon the person named above in the manner set forth below...." Wallace was named above this. The proof of service indicated that the sheriff personally served "copies" on Wallace in Georgia on November 8, 1994. This account was made by the officer under oath.

¶ 6. On December 5, 1994, the chancellor found that the court had jurisdiction of the parties and the subject matters. The chancellor's decision recognized the temporary support and maintenance order and final divorce order and declared that Wallace was in contempt of court due to his continued wilful and obstinate refusal to pay sums ordered. Wallace was further ordered to be placed in confinement until he purged himself of contempt by payment of the total sum. The amount was determined by accrued obligations and related expenses.

¶ 7. After a motion for arrest and confinement was filed on January 9, 1995, the chancellor ordered the Sheriff of Hinds County to confine Wallace and to hold him in jail until such time that he had purged himself of contempt. On July 24, 1995, Wallace was arrested in Hinds County. In an order dated July 26, 1995, the chancellor released Wallace for a partial payment of the total debt. Wallace was also instructed to appear before the court in six months for review of payment of the balance and for any additional subsequent amounts that may be in arrears.

¶ 8. On February 9, 1996, after notice of hearing was issued to Wallace, the court found Wallace in contempt for all delinquent sums of child support and maintenance because of his failure to pay his balance. Wallace was again ordered to be confined until he paid the total amount due, reasonable attorney's fees and collection expenses. Neither Wallace nor his counsel appeared at the hearing.

¶ 9. On June 29, 2000, Wallace filed a petition for confirmation of defacto modification for temporary relief and other relief for modification of child support and child custody arguing a material change in circumstance. Cynthia filed an answer and a counter-petition. She asserted that Wallace was in contempt of the two judgments dated December 5, 1994 and February 9, 1996. Wallace later amended his response to Cynthia's counter-petition, arguing that he should be relieved from the 1994 contempt judgment because it was void pursuant to Mississippi Rules of Civil Procedure 5 and 81.

¶ 10. On Nov. 17, 2000, Wallace filed a motion for relief from the judgment of contempt dated December 5, 1994. He argued that pursuant to Rule 60, the judgment was void because a summons was not issued or served as required by Rules 5 and 81. A hearing on this motion was held on February 13, 2001. At the hearing (not attended by Wallace), Wallace's attorney claimed that in June 2000 he re-opened this case to have the court confirm a defacto modification. Cynthia countered, arguing her rights to delinquent sums according to the December 5, 1994 contempt judgment. At the hearing, Wallace's attorney requested that the court relieve Wallace of the December 5, 1994 contempt judgment because he was not served a summons concerning the petition of contempt as required by Mississippi Rules of Civil Procedure 81 and 4. Therefore, Wallace claimed that the judgment was void according to Rule 60.

¶ 11. Cynthia argued that although there was not a "magical summons" listed on the court file, the proof of service stated that he was served a summons. She claimed that the notice of hearing and the petition for contempt satisfied the requirements of Rule 81 and Wallace knew he should have been there. In addition, Cynthia argues that according to Rule 60, such a motion must be made in a reasonable time and that six years was not reasonable. Wallace countered that a reasonable time is within the court's discretion.

¶ 12. The chancellor, citing Mississippi Rule of Civil Procedure 4, ruled that the judgment was not void and held that "Rule 4, although or in addition says, Summons, Mr. Reichert was noticed to appear." In addition, the chancellor held that "as it relates to Rule 60, ... this as an equity court finds ... that it would be inequitable at this point to void the judgment, ... six years is too remote in time." Wallace appealed the judgment to this Court.

ANALYSIS OF THE ISSUE PRESENTED

DID THE CHANCELLOR ABUSE HER DISCRETION IN DENYING THE MOTION FOR RELIEF FROM THE CONTEMPT JUDGMENT OF DECEMBER 5, 1994?

¶ 13. Appellate review of Rule 60(b) motions is limited. Stringfellow v. Stringfellow, 451 So.2d 219, 220 (Miss. 1984). We will not reverse a trial court's decision to deny relief under Rule 60(b) unless the trial court abused its sound discretion. Jenkins v. Jenkins, 757 So.2d 339, 342(¶ 5) (Miss.Ct.App.2000). The grant or denial of a Rule 60(b) motion is generally within the discretion of the trial court. However, if the judgment is said to be void, the only proper decision is to set the judgment aside. Sartain v. White, 588 So.2d 204, 211 (Miss.1991). For the purpose of our analysis, the issues raised on appeal will be consolidated.

¶ 14. On appeal, Wallace argues that the chancellor erred in denying his motion for relief because the absence of a summons required by Mississippi Rule of Civil Procedure 81(d)(5) rendered the December 5, 1994 contempt judgment void pursuant to Rule 60 and, therefore, must be set aside. There is no record of a summons being issued. Cynthia asserts that the chancellor's ruling is correct because there is no proof in the record that a summons was not issued for Wallace to appear at the contempt hearing on December 5, 1994. Alternatively, even if it is determined that a summons did not exist, Cynthia asserts that the purpose of Rule 81(d)(5) was met via the personal service of process of copies of the petition for contempt and more importantly, a notice of hearing which stated the date, time, and place.

a. Requirements of a Valid Judgment

¶ 15. We must first address what is required for a judgment to be valid. The federal courts interpreting Mississippi Rule of Civil Procedure 60(b)(4) have held that a valid judgment requires (1) jurisdiction of subject matter, or of parties and (2) due process of the law. Bryant v. Walters, 493 So.2d 933, 938 (Miss.1986). If a court lacks jurisdiction or the requirements of due process are not met, the judgment is void and must be vacated. Id. at 937-38.

¶ 16. Here, the chancery court was correct in finding jurisdiction over Wallace in the contempt matter because a domestic relations case remains subject to recurring motions even after all prior contested matters are resolved. Sanghi v. Sanghi, 759 So.2d 1250, 1253(¶ 13) (Miss. Ct.App.2000). Once a court has personal jurisdiction over the defendant at the time of divorce, the court is presumed to have continuing jurisdiction. Powell v. Powell, 644 So.2d 269, 274 n. 4 (Miss.1994). A court is also required to act in a manner consistent with due process of...