Turner v. Turner

• Decision Date: 01 November 2011
• Docket Number: No. 2010–CA–00375–COA.,2010–CA–00375–COA.
• Court: Mississippi Court of Appeals
• Parties: Michael TURNER, Appellant v. Jane TURNER, Appellee.

73 So.3d 576

Michael TURNER, Appellant

v.Jane TURNER, Appellee.

No. 2010–CA–00375–COA.

Court of Appeals of Mississippi.

Nov. 1, 2011.

Richard Shane McLaughlin, Nicole H. McLaughlin, attorneys for appellant.

Jonathan W. Martin, attorney for appellee.

EN BANC.

MAXWELL, J., for the Court:

¶ 1. The Lee County Chancery Court entered an order allowing Michael Turner's divorce attorney to withdraw as counsel. In this same order, the chancellor set the hearing date for Michael's divorce trial for December 8, 2009. Michael did not appear at the trial, yet the chancellor granted his wife, Jane Turner, a divorce, gave her custody of their son, awarded her attorney's fees, and distributed their marital property. Michael moved to set aside the divorce judgment and other awards, arguing he did not receive notice of the rescheduled trial, as required by Rule 5 of the Mississippi Rules of Civil Procedure. Although there was no evidence Michael's former attorney advised him of the new trial date nor any indication Michael had received actual notice of the rescheduled trial, the chancellor denied Michael's post-judgment motion, finding delivery of the order to Michael's withdrawing attorney satisfied the service of notice requirements of Rule 5(b).

¶ 2. We find at the moment the chancellor granted Michael's attorney's request to withdraw, Michael was no longer represented by an attorney of record. Thus, Rule 5(b) directed Michael be served, not his former attorney who no longer represented Michael in the divorce. Because Michael was not served with notice of the December 8, 2009 hearing, we find the resulting divorce judgment void. We reverse the chancery court's denial of Michael's motion to set aside the judgment and remand this case to the chancery court for further proceedings consistent with this opinion.

FACTS AND PROCEDURAL HISTORY

¶ 3. In 2005, Jane and Michael began protracted divorce proceedings, which included a dispute over the custody and visitation of their son.

¶ 4. The record from 2006 shows a series of set and reset trial dates and an agreed temporary custody order. In March 2007, Michael filed a motion for contempt, alleging Jane had not permitted him to exercise the visitation agreed to in the temporary order. Jane responded in November 2007. The record is silent for the year of 2008. But in early 2009, the chancery court issued a series of orders setting the divorce for trial. The last order, which was filed on September 8, 2009, set the hearing for November 12, 2009. Our review concerns the notice issues surrounding the withdrawal of Michael's attorney on November 12, 2009.

¶ 5. According to Michael, he appeared at the courthouse on the morning of November 12 but did not, at first, see his attorney, Jak Smith. Eventually, from the back of the courtroom, Michael saw Smith at the bench talking to the chancellor and Jane's counsel.

¶ 6. There is no transcript of this bench conference. But we know from the chancellor's resulting order that Smith made an oral motion to withdraw as counsel for Michael. Although Uniform Chancery Court Rule 1.08 requires a motion to withdraw be in writing, there is no written motion in the record. We are neither able to discern from the record Smith's offered reasons for his withdrawal nor determine whether he gave Michael and Jane's counsel the required reasonable notice, also an explicit prerequisite of Rule 1.08. Further, there is no indication that Michael received five days' notice, to which he was entitled, before a hearing on a motion to withdraw may be conducted. See M.R.C.P. 6(d); McDonald v. McDonald, 850 So.2d 1182, 1188 (¶ 19) (Miss.Ct.App.2002).

¶ 7. All we have is the resulting order, dated November 12 and entered on November 13, that simultaneously (1) allowed Smith to withdraw as Michael's counsel over Jane's attorney's objection and (2) continued the divorce trial to December 8, 2009. The order shows Smith “agreed as to form” of the order and signed it as “counsel for Defendant.”

¶ 8. According to Michael, Smith left the bench conference and found him in the back of the courtroom. Smith led Michael to a conference room, where they discussed Smith's withdrawal and offer of assistance in finding Michael new counsel. But they did not, Michael asserts, discuss the reset trial date. It is undisputed that no record support exists to show Michael had actual notice of the subsequent trial. According to a later stipulation offered during Michael's hearing on his request for a new trial, both parties agreed Smith could not recall whether he did or did not give Michael a copy of the order. The parties also stipulated that Smith's office had no record of mailing Michael a copy of the order. Jane's attorney testified he gave Smith a copy of the order but not Michael.

¶ 9. Though the record indicates Michael had not missed any prior court hearings, he did not appear for the December 8 trial. However, the chancellor proceeded with the hearing, granting Jane a divorce on the ground of habitual drunkenness and awarding her custody of their son. He also awarded her attorney's fees and divided the marital property. Nine days later, on December 17, 2009, Michael filed a motion to set aside the divorce and for a new trial. Michael argued the divorce judgment was void and should be set aside under Mississippi Rule of Civil Procedure 60(b), because Michael was not properly notified of the December 8 hearing and, thus, deprived of his due-process rights. In the alternative, Michael argued certain provisions of the divorce decree should be altered or amended under Mississippi Rule of Civil Procedure 59(e).

¶ 10. After conducting a hearing, the chancellor denied the motion, specifically finding: “Service of process of the November 12, 2009 Order was in compliance with M.R.C.P. 5” and “[no] good reason or just cause for [Michael's] failure to appear at the December 8, 2009 hearing.” The chancellor also declined to alter his previous decree.

¶ 11. Michael timely appealed.

DISCUSSION

¶ 12. On appeal, Michael argues the chancellor should have granted his post-judgment motion for both (1) the failure to provide sufficient notice under Rule 5 and (2) errors in awarding Jane a divorce, custody, equitable distribution, and attorney's fees. We solely address the notice issue. Because we find the divorce judgment is void for lack of notice, each accompanying award in the judgment is also without legal effect. Peterson v. Peterson, 797 So.2d 876, 879 (¶ 12) (Miss.2001).

¶ 13. “Although ‘the grant or denial of a 60(b) motion ¹ is generally within the discretion of the trial court, if the judgment is void, the trial court has no discretion. The court must set the void judgment aside.’ ” Clark v. Clark, 43 So.3d 496, 501 (¶ 21) (Miss.Ct.App.2010) (quoting Soriano v. Gillespie, 857 So.2d 64, 69–70 (¶ 22) (Miss.Ct.App.2003)). “Specifically, a judgment is void ‘... if [the court] acted in a manner inconsistent with due process of law.’ ” Id. (quoting Morrison v. Miss. Dep't of Human Servs., 863 So.2d 948, 952 (¶ 13) (Miss.2004)). While Clark involved a void judgment based on a failure to serve process under Mississippi Civil Procedure Rule 4, this court has also voided a judgment for failure to serve notice of trial under Rule 5(b). McClain v. White, 738 So.2d 306, 308 (¶ 12–14) (Miss.Ct.App.1999).² This is because “[n]otice, whether of the time and place of a hearing, the contents of a complaint, or of the specific nature of a criminal charge, is the essence of due process.” Johnson v. Weston Lumber & Bldg. Supply Co., 566 So.2d 466, 469 (Miss.1990).

¶ 14. Rule 5(a) of the Mississippi Rules of Civil Procedure requires that orders and written notices “shall be served upon each of the parties” in the method provided by Rule 5(b). M.R.C.P. 5. Rule 5(b) directs: “Whenever under these rules service is required or permitted to be made upon a party who is represented by an attorney of record in the proceedings, the service shall be made upon such attorney unless service upon the party himself is ordered by the court.” M.R.C.P. 5(b)(1). Under Rule 5(b), service is made upon the attorney with “two basic exceptions”—the party is not represented or the court orders otherwise. Duckworth v. Strite, 748 So.2d 794, 797(11) (Miss.Ct.App.1999) (quoting 4A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1145 (1987)). “Under the first [exception], service on a party is valid—indeed it is obligatory—if a party does not have an attorney or if the attorney has ceased to represent the party [.]” Id. (emphasis added).

¶ 15. Having been permitted to withdraw, Smith undoubtedly “ceased to represent” Michael. Thus, we find the first exception to service on an attorney applied. The dissent essentially casts the chancellor's simultaneous order—which both allowed Michael's attorney to withdraw and reset the divorce trial—as an unsolvable chicken-versus-egg predicament, concluding because we cannot know “which came first,” we should conclude that Smith signed the order “as counsel for the defendant” while he was still representing Michael. But we disagree with the dissent that an attorney can both be relieved as counsel of record and be relied upon to agree to other matters in the litigation. In answering “which came first,” we are guided by precedent that draws a clear line of demarcation when an attorney withdraws, irrespective of his continuing ethical duties.

¶ 16. While the dissent finds disfavor with our reliance on one of this court's leading Rule 5(b) cases, Duckworth, it offers up nothing by manner of either rule or case law to contradict our conclusion. Instead, the dissent declares, without citation to any authority, that because Smith's ethical duties to Michael continued after the order of withdrawal, service upon him as Michael's representative was sufficient—even though the court had ordered Smith's withdrawal from the case.

¶ 17. While we agree ethical duties remained, we...