Sanghi v. Sanghi, No. 1998-CA-01241-COA.

• Citation: 759 So.2d 1250
• Decision Date: 23 May 2000
• Docket Number: No. 1998-CA-01241-COA.
• Parties: Harishankar L. SANGHI and Alice S. Sanghi, Appellants, v. Vijay K. SANGHI, Appellee.
• Court: Court of Appeals of Mississippi

759 So.2d 1250

Harishankar L. SANGHI and Alice S. Sanghi, Appellants, v. Vijay K. SANGHI, Appellee.

No. 1998-CA-01241-COA.

Court of Appeals of Mississippi.

May 23, 2000.

Harishankar Sanghi and Alice Sanghi, Appellants, pro se.

Reilly Morse, Gulfport, Attorney for Appellee.

EN BANC.

SOUTHWICK, P.J., for the Court:

¶ 1. In a dispute with his former wife, Dr. Harishankar Sanghi was adjudged by the Harrison County Chancery Court to be in willful contempt. The chancellor entered an agreed order purging Dr. Sanghi of the contempt citation in exchange for the sale of certain real property to satisfy judgments against Dr. Sanghi for arrearage in both child support and alimony. Dr. Sanghi appeals this order asserting that the lower court did not have personal jurisdiction, that he was denied due process, that the judgment is not supported by the evidence and that the agreed order was not entered into freely. We find that the failure to provide proper service of a summons upon Dr. Sanghi, notifying him of the hearing that was to be held on the new pleadings filed against him, renders the judgment invalid. We reverse and remand for further proceedings.

FACTS

¶ 2. Harishankar Sanghi and Vijay Sanghi were married in 1961 and were divorced in 1988. They had four children during the course of their marriage, three of whom are still minors. Under the terms of the divorce, Mrs. Sanghi was awarded alimony in the amount of $1,500 per month and child support of $550 per month per child.

¶ 3. In November 1994, Dr. Sanghi was fired from his job and was unable to secure other employment for nearly two years. During this period Dr. Sanghi filed for Chapter 7 bankruptcy. Although Dr. Sanghi was unemployed, he was able to pay approximately $21,000 of his alimony and child support obligations between November 1994 and April 1995. Dr. Sanghi made no payments from May 1995 until September 1996 when he began receiving income from his new job. When Dr. Sanghi did resume payment of his obligations, he did not pay the full amount each month.

¶ 4. In December 1995, Mrs. Sanghi filed a motion for contempt against Dr. Sanghi. This resulted in a judgment of $55,381 against Dr. Sanghi for back child support, alimony and attorney's fees. The judgment also resulted in a lien being placed on Dr. Sanghi's townhouse in Biloxi.

¶ 5. Mrs. Sanghi filed a second motion for contempt in September 1997. At that time a withholding order was issued on the 1995 judgment, followed by additional withholding orders in October 1997 and January 1998. The withholdings began in February 1998. In February, Mrs. Sanghi filed three motions that present the issues that we now face: a motion to enforce the property settlement agreement, a motion for a writ of execution, and an amended motion for contempt.

¶ 6. In June 1998, the chancellor entered a judgment against Dr. Sanghi in the amount of $28,593.64, which was for delinquent alimony and child support, plus $850 in attorney's fees. Additionally, the chancellor found that Dr. Sanghi was in wilful and contumacious contempt of court. He was ordered arrested and incarcerated until such time as he purged himself of contempt. On July 1, 1998, Dr. Sanghi was arrested and incarcerated after unsuccessful settlement negotiations with Mrs. Sanghi's attorney. Two days later, Dr. Sanghi and his current wife Alice both signed the agreed order releasing their interests in the Biloxi townhouse. Dr. Sanghi was released from jail.

DISCUSSION

¶ 7. When reviewing questions concerning jurisdiction, this court employs a de novo review. This court is in the same position as the trial court, with all facts set out in the pleadings or exhibits. Sorrells v. R & R Custom Coach Works, Inc., 636 So.2d 668, 670 (Miss.1994).

¶ 8. The first important matter is that the record presented to us of the critical events is fragmentary. The appellant is responsible for designating the record in a manner sufficient to allow the appellate court to review his issues. M.R.A.P. 10(b); Cossitt v. Alfa Ins. Corp., 726 So.2d 132, 135 (Miss.1998). Even when as here an appellant appears without counsel, the same obligations apply to him. Dethlefs v. Beau Maison Development Corp., 511 So.2d 112, 118 (Miss.1987). Our task is to decide the case based on what is present, and in most situations to hold absences against the appellant. Documents appear in the record excerpts provided by the parties that are not in the record. The central document in question, which is a notice from a court administrator about the first scheduled hearing, is one of those non-record documents. Ultimately we find that even if the missing documents state just what the appellee contends, they would be insufficient for jurisdiction.

¶ 9. The original complaint in this action was filed in May 1988. A divorce was granted that year. Ever since petitions to modify, enforce, or seek contempt have been recurrent. For example, in June through November, 1997, the last date being just three months prior to the matters that concern us, there were motions and orders filed in the case. This particular chapter of the long-running story begins with three petitions by the former wife filed on February 6, 1998. They were for contempt due to failure to pay child support, for enforcement of the property settlement, and for a writ of execution. It is the proper service of the notice of these petitions that is at issue in this appeal.

¶ 10. We note here, and discuss more later, that these papers were denominated "motions" instead of "petitions." Using this wrong caption is a matter of form that does not invalidate the filing, but it may well mislead the court clerk. Much of what occurred in this suit as to notice would have sufficed for motions in current and active litigation. Our issue is whether it suffices for petitions that revive a domestic case for enforcement or modification of decrees previously entered.

¶ 11. Rule 4 provides for the means of service of the original complaint and the form of the accompanying summons. M.R.C.P. 4. These proceedings were ten years past the start of the litigation. Rule 5 applies to giving notice of almost every document filed after the original complaint, but as we will discuss that rule does not apply to these renewed divorce proceedings. M.R.C.P. 5(a); Leaf River Forest Products, Inc. v. Deakle, 661 So.2d 188, 194 (Miss.1995).

¶ 12. Much of the case law referenced by Dr. Sanghi discusses the constitutional notice requirements that must be met to commence litigation in which a personal obligation is to be imposed on a defendant. E.g., Hamm v. Hall, 693 So.2d 906, 909 (Miss.1997). A defendant must be given reasonable notice "that an action has been brought" and there must be a sufficient connection between the defendant and the forum. Id.(quoting Kulko v. Superior Court of California, 436 U.S. 84, 91, 98 S.Ct. 1690, 56 L.Ed.2d 132 (1978)). What we review is a somewhat different notice.

¶ 13. A domestic relations case remains subject to recurring motions even after all prior contested matters are resolved. A pleading to alert the other party that a new dispute has arisen is in the nature of awakening a dormant suit, distinguishable both from commencing new litigation and from just filing a motion in active litigation. The applicable procedural rule is one that applies to petitions to modify or enforce final custody, alimony or support judgments. M.R.C.P. 81(d)(2). A summons is to be filed:

Upon the filing of any action or matter listed in subparagraphs (1) and (2) above, summons shall issue commanding the defendant or respondent to appear and defend at a time and place, either in term time or vacation, at which the same shall be heard.

M.R.C.P. 81(d)(5).

¶ 14. Rule 4 does not fully apply to such proceedings. Issuance of a summons in the form required by Rule 4 to notify a party of a Rule 81(d)(2) petition has no effect. Powell v. Powell, 644 So.2d 269, 273-74 (Miss.1994). A Rule 81 summons notifies a party "of the time and place where he is to appear and defend," while a Rule 4 summons requires a written response within 30 days. Id. at 273. To utilize a summons form that provides only Rule 4 information necessarily means that Rule 81(d) information is not given. We will later discuss the available means of service.

¶ 15. The Rules contain sample forms for both kinds of summons. M.R.C.P.App. A, Forms 1B, 1D and 1DD. Sample form 1D states that the petition is attached to the summons, though the Rule itself is not explicit. Failure to attach would mean that the person served would not know the matter against which a defense is to be made. ¶ 16. Once the petitions ("motions") were filed on February 6, 1998, they were served on Dr. Sanghi by certified mail. Not included was a summons of any kind. Instead of a summons, on February 9, 1998, a notice was prepared by the chancery court's administrator, informing both the plaintiff and the defendant that a hearing on the matter was set for March 9, 1998. That was sent first class mail. Dr. Sanghi's receipt of the notice is revealed by his making a phone call to the administrator asking that the hearing be postponed due to medical problems. As a result the hearing was rescheduled and a new notice by the administrator mailed to the parties indicating that they should appear on April 13.

¶ 17. Prior to the latter date, Dr. Sanghi sought to remove some part of the proceedings to federal court. The notice of removal is not in the record, but according to a docket entry a "notice of removal" was filed on March 13, 1998. On June 24, the federal district judge dismissed the removal as seeking federal court review of a matter beyond the court's jurisdiction. Mrs. Sanghi's counsel at the April 13 hearing indicates that the removal concerned the efforts to sell property, which was the subject of only one of the three petitions filed by Mrs. Sanghi on February 6. Dr. Sanghi's brief appears to confirm that this was the...