Fliter v. Fliter

383 So. 2d 1084
CourtMississippi Supreme Court
DecidedMay 14, 1980
Docket51813
StatusPublished
Cited by5 cases

This text of 383 So. 2d 1084 (Fliter v. Fliter) is published on Counsel Stack Legal Research, covering Mississippi Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Fliter v. Fliter, 383 So. 2d 1084 (Mich. 1980).

Opinion

383 So.2d 1084 (1980)

Robert Donald FLITER
v.
Doris Jean FLITER.

No. 51813.

Supreme Court of Mississippi.

May 14, 1980.

Joffe & LeSieur, Scherry J. LeSieur, Biloxi, for appellant.

Breland & Barnett, Norman L. Breland, Gulfport, for appellee.

Before SMITH, P.J., BROOM and COFER, JJ.

COFER, Justice, for the Court:

This case is here on appeal from the Chancery Court of the Second Judicial District of Harrison County. Robert Donald Fliter has taken the appeal, and Doris Jean Fliter, his former wife and the mother of their son, is the appellee. It results from an unsuccessful attack by appellant on the propriety of appellee's combining in one action her suit for divorce against appellant and a suit for child support under Chapter 453, Laws of Mississippi (1978), effective July 1, 1978, and now appearing as Mississippi Code Annotated, section 93-11-67 (Supp. 1979). The statute reads as follows:

(1) In an action for child support, a court may exercise personal jurisdiction over and enter a judgment in personam against a defendant if personal service of process is made as provided below and if the parties had resided in a marital relationship with each other in this state for thirty (30) days and if the complainant *1085 has continuously resided in this state after the defendant has become a nonresident.
(2) The defendant shall be personally served with a summons and a copy of the petition in the manner prescribed by the law of the state in which service is made or by any form of mail addressed to the defendant with a receipt showing personal delivery or by personal service outside this state in the manner prescribed for service within this state.
(3) Proof of service outside this state may be by affidavit of the individual who made service or in the manner prescribed by the law of this state or in the manner prescribed by the law of the state in which service is made. If service is by mail, proof may be a receipt signed by the defendant or other evidence of personal delivery to the defendant.

The parties were married at Biloxi on September 30, 1975, and were separated in March 1977 at Biloxi. Appellant is a non-resident of the state, having left the state in October 1977, and having at all times since remained absent from this state.

The parties undertook to stipulate facts which would bring the case into proper focus and perspective for this decision. This stipulation is as follows.

1. That complainant and defendant were married on September 30, 1975, in Biloxi, Mississippi, and separated in March of 1977.

2. That the defendant left Biloxi, Mississippi, and removed himself from the jurisdiction of the State of Mississippi in October of 1977, and that he remained absent from this jurisdiction willfully, continually, obstinately for a period of one year as of October 31, 1978, and continued to remain absent in the same manner since that time up and until this date, and continues to remain so absent from the jurisdiction.

3. That he has made a special appearance in this cause by and through his counsel as aforesaid to contest the jurisdiction of the Decree rendered by this Court on March 21, 1979, pursuant to Section 93-11-67, Mississippi Code of 1972, Annotated.

4. That the defendant has contributed the sum of $100 per month to the complainant since he has been absent from the jurisdiction of the Court, the same being paid from Denver, Colorado, from his retirement pay, and additional sums since October 1977, through April 10, 1979, for a total of $2,200.

5. That the defendant is 43 years of age and the complainant is 46 years of age; that they have one child born of their marital union, Donald Keith Fliter, who is 14 years of age and who resides with the complainant in Biloxi, Mississippi.

6. That the last day of the March Term of the Chancery Court of the Second Judicial District of Harrison County, Mississippi, was Friday, April 6, 1979, and that the complainant's attorney received a copy of the Motion to Set Aside Final Decree of Divorce on April 5, 1979, and that the Chancellor signed an order setting the case over to a vacation time hearing pursuant to motion filed by the Defendant's attorneys in the absence of the complainant's attorneys.

7. That Honorable Jason Floyd, Jr., the presiding Chancery Court Judge, who signed the Final Decree of Divorce at issue, was associated with the law firm of Breland and Barnett prior to taking the bench, and that because Judge Floyd was involved in representing the complainant prior to assuming his duties as chancellor, Judge Floyd recused himself from the case when it became apparent that the Court's jurisdiction in the instant divorce action was to be contested.

8. That the defendant, Robert Donald Fliter, received notice of publication which was instituted on December 1, 1978, but no return receipt was requested by the Clerk of the Court.

9. That a summons was issued returnable by certified mail, return receipt requested, the return being dated January 6, 1979.

10. That subsequent to that, complainant's attorneys requested that the complaint and the summons be mailed by certified mail, return receipt requested, to the *1086 defendant Robert Donald Fliter, and that the same was acknowledged and signed for on January 16, 1979, by Robert Donald Fliter, and that his signature as appears thereon, copies of said return receipt being made a part hereof, are authentic and genuine and are, in fact, the signature of the defendant who had not only notice of the complaint, but who had a copy of the complaint from January 16, 1979, until the decree was rendered, and that he had a copy of the summons for said time, and that he further had a copy of the summons from January 6, 1979.

11. That the defendant did nothing toward defending said summons and complaint and remained absent from the jurisdiction.

12. That the complainant and defendant resided in a marital relationship for at least 30 days next preceding their separation which took place in March of 1977, and that the defendant remained in Harrison County, Mississippi, until on or about October of 1977, at which time he left the State of Mississippi and took up residence in California.

13. That the defendant has been represented by opposing counsel, Carl Joffe and Scherry LeSieur since January 16, 1979, and that they have represented the said defendant since that time up, until, and during the present time.

14. That the testimony of Mrs. Fliter was to the effect that the defendant was able-bodied and gainfully employed with a United States Air Force retirement of at least $460 per month, and that such facts are hereby stipulated.

From the stipulation it is apparent that, after the suit was filed, process was served on appellant in one of the manners provided in Section 93-11-67, quoted above, and that, without appearing to make defense against the suit, appellant suffered a decree to be entered awarding to his wife a divorce and the custody of their child and a monthly award for the support of the child. The decree was entered March 21, 1979, and, on April 5, 1979, a date within the same term, he made a special appearance and filed his motion to set aside the portions of the decree which act upon him in a personal manner, which, he alleged, was undertaken pursuant to the statute here under attack.

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Bluebook (online)
383 So. 2d 1084, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fliter-v-fliter-miss-1980.