Bailey v. Fischer

946 So. 2d 404, 2006 WL 1460714
CourtCourt of Appeals of Mississippi
DecidedMay 30, 2006
Docket2005-CA-00374-COA
StatusPublished
Cited by9 cases

This text of 946 So. 2d 404 (Bailey v. Fischer) is published on Counsel Stack Legal Research, covering Court of Appeals of Mississippi primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bailey v. Fischer, 946 So. 2d 404, 2006 WL 1460714 (Mich. Ct. App. 2006).

Opinion

946 So.2d 404 (2006)

Kenneth Campbell BAILEY, Appellant
v.
Melissa A. (Bailey) FISCHER, Appellee.

No. 2005-CA-00374-COA.

Court of Appeals of Mississippi.

May 30, 2006.
Rehearing Denied September 26, 2006.
Certiorari Denied January 4, 2007.

*405 Brent M. Bickham, Ocean Springs, attorney for appellant.

Timothy Lee Murr, Gulfport, attorney for appellee.

Before MYERS, P.J., SOUTHWICK and BARNES, JJ.

SOUTHWICK, J., for the Court.

¶ 1. The parties were divorced in 1989. In 2002, the ex-husband was found in contempt for non-payment of child support. He appeals, alleging that notice of the contempt hearing was not given and that his federal benefit payments could not be used for child support. We disagree and affirm.

FACTS

¶ 2. In a 1989 divorce decree by the Harrison County Chancery Court, Melissa Bailey (now known as Melissa Fischer) was given custody of the parties' one child, *406 a daughter born in 1986. Mr. Bailey was to pay child support. Several petitions for contempt have been filed by Ms. Fischer through the years. In 2002 she again sought to have him cited for contempt due to nonpayment of child support. It is agreed by the parties that a proper summons under Mississippi Rule of Civil Procedure 81 was given to Mr. Bailey, notifying him of a hearing to be held on June 5, 2002. The propriety of the legal process after that time is not agreed.

¶ 3. In a hearing held in December 2004, Timothy Murr, counsel for Ms. Fischer, stated that on June 4, 2002, Brent Bickham, counsel for Mr. Bailey, telephoned Murr requesting a continuance of the hearing that, according to the Rule 81 summons, was scheduled for the next day. Murr agreed to the schedule change. On June 21, 2002, the Harrison County Chancery Court Administrator issued a notice of the hearing for August 6, 2002. Both attorneys appeared for the August 6 hearing. Due to a full docket the chancellor postponed the matter. Both attorneys then went to the court administrator to set a new date. The administrator issued a notice for a hearing to be held on August 12. That hearing was held as scheduled. It resulted in Bailey being held in contempt. A capias was issued. On October 25, 2002, an agreed order for suspension of the capias and for Bailey's release from incarceration was entered. A review of Bailey's compliance with the court orders was set for every four months.

¶ 4. The matter was continued multiple times. Finally, a hearing was held on November 10, 2003. A review of the previous order and presentation of evidence on new matters occurred. Bailey was again found to be in contempt, with the contempt to be reviewed again on April 28, 2004.

¶ 5. Prior to the April hearing, Bailey received an award of U.S. Social Security benefits dating back to January 10, 2001. He immediately filed a motion to modify child support and to set aside all orders entered as of January 1, 2001. The review of contempt and the additional motions to set aside and modify support were all heard on April 28, 2004. The result was an order that reset the matter for June 25, 2004. This final review was concluded on June 28, 2004. The chancellor then ruled from the bench, with a written judgment later entered on August 13, 2004.

¶ 6. Bailey continued to dispute the decision and filed various motions, including one for a new trial. Delays in the hearings on the motions resulted in rescheduling orders by the court administrator. On February 4, 2005, the chancellor entered his final judgment, confirming jurisdiction for the earlier orders, including the contempt citation for nonpayment of support. That February order is the final trial court judgment from which appeal has been brought here.

DISCUSSION

ISSUE 1: Compliance with Civil Procedure Rule 81

¶ 7. Bailey argues that the chancellor did not have jurisdiction to hear the evidence that was used to prove his contempt. As we will discuss, Rule of Civil Procedure 81 mandates in certain actions, including proceedings for contempt, that special notice be served on a respondent for a hearing with a date, time and place specified. Bailey does not contest that there was proper service of process for the initial June 5, 2002 hearing. Instead, he argues that once the hearing was rescheduled for August 6, 2002, the court lost jurisdiction because no new Rule 81 summons was given.

*407 ¶ 8. The rule in question provides special procedures for special cases, such as for hearings on child support and contempt. M.R.C.P. 81(d)(2). When a contempt action is filed, notice of the initial decision and the procedures for continuances are as follows:

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 [action or matter] shall be heard. Said time and place shall be set by special order, general order, or rule of the court. If such action or matter is not heard on the day set for hearing, it may by order signed on that day be continued to a later day for hearing without additional summons on the defendant or respondent. The court may by order or rule authorize its clerk to set such actions or matters for original hearing and to continue the same for hearing on a later date.

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

¶ 9. The steps required under this rule are these: (1) initial summons with date, time and place for hearing; (2) if not heard at that time, a new date may be set by (a) order entered by the chancellor on the initial hearing date, or (b) court may by order or rule authorize the court clerk to set the rescheduled date and time. The initial hearing date was set in a Rule 81 summons, but the new dates and times were established by the Harrison County Chancery Court Administrator. Rule 81(d)(5) provides that the court's clerk, i.e., the Harrison County Chancery Clerk, may be authorized to set the new date. The chancellor explained in his opinion that the normal practice when a case cannot be heard on a particular day is for the attorneys to agree to another day at the office of the court administrator. The administrator then mails a notice for the new hearing to the attorneys. The chancery clerk is not involved in establishing these changes.

¶ 10. There is no evidence in the record that the chancellor by order authorized the court administrator to make the rescheduling decisions, nor is there any properly approved local rule for the relevant chancery court district permitting this procedure. It is on such discrepancies from the Rule 81 requirements that Bailey relies.

¶ 11. Mississippi caselaw has with some frequency discussed the special requirements of a Rule 81 summons. E.g., Powell v. Powell, 644 So.2d 269 (Miss.1994); Reichert v. Reichert, 807 So.2d 1282 (Miss.Ct. App.2002); Sanghi v. Sanghi, 759 So.2d 1250 (Miss.Ct.App.2000). The Supreme Court has held that the key consideration under Rule 81 is the adequacy of the notice of the date, time and place of the hearing. Vincent v. Griffin, 872 So.2d 676, 678 (Miss.2004). Sometimes there has been no Rule 81 summons at all to begin the new chapter in the pending domestic matter. Sanghi, 759 So.2d at 1254. However, if a proper summons is given that notifies the other party that a new controversy has arisen and of the date, time and place for a hearing, the rule itself provides that an order entered on the day of the initially-scheduled hearing obviates the need for any new summons for a hearing actually held on the later date. M.R.C.P. 81(d)(5).

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Cite This Page — Counsel Stack

Bluebook (online)
946 So. 2d 404, 2006 WL 1460714, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bailey-v-fischer-missctapp-2006.