Ladner v. Logan

857 So. 2d 764, 2003 WL 22411110
CourtMississippi Supreme Court
DecidedOctober 23, 2003
Docket2002-CA-00634-SCT
StatusPublished
Cited by11 cases

This text of 857 So. 2d 764 (Ladner v. Logan) 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
Ladner v. Logan, 857 So. 2d 764, 2003 WL 22411110 (Mich. 2003).

Opinion

857 So.2d 764 (2003)

Cheryl LADNER
v.
Woodrow LOGAN.

No. 2002-CA-00634-SCT.

Supreme Court of Mississippi.

October 23, 2003.

*765 Sheila Havard Smallwood, Glenn Louis White, Petal, Attorneys for Appellant.

David Alan Pumford, Erik M. Lowrey, Robert R. Marshall, Hattiesburg, Richard Anthony Filce, Attorneys for Appellee.

Before SMITH, P.J., WALLER and CARLSON, JJ.

WALLER, Justice, for the Court:

¶ 1. Cheryl Ladner appeals from a judgment of the Pearl River County Chancery Court which awarded her emancipated son $4,291 in unpaid child support against Ladner's ex-husband, Woodrow Logan. Logan cross-appeals from the chancellor's award of $2,000 in attorneys' fees to Cheryl. We affirm the chancellor in all respects except that we reverse and remand for entry of a new judgment for a recalculated award to the son based on the correct monthly amount and for an award of post-judgment interest thereon.

FACTS AND PROCEDURAL HISTORY

¶ 2. Cheryl Ladner and Woodrow Logan were divorced by decree of the Pearl River County Chancery Court on September 16, 1983. Woodrow was ordered to pay $475[1]*766 per month in child support for the couple's four children, namely, David Logan, born on April 17, 1970, Kevin Logan, born on September 20, 1972, Vincent Logan, born on April 10, 1974, and Darren Logan, born on October 25, 1976. On December 17, 1985, Woodrow was found in contempt of the divorce decree with the court finding a total arrearage of $3,686. On April 13, 1996, the Mississippi Department of Human Services filed a petition for citation of contempt on behalf of Cheryl seeking $31,596 in arrearages as of February 28, 1995. The affidavit of accounting submitted with DHS's petition indicated that Woodrow had paid a total of $28,818 and was in arrears $31,596.

¶ 3. On August 29, 1994, the chancellor signed a child support enforcement transmittal pursuant to the Uniform Reciprocal Enforcement of Support Act (URESA) for enforcement in Jefferson Parish, Louisiana. Thereafter, on September 11, 1996, Woodrow wrote a letter to the clerk of court of Pearl River County which was filed on September 16 stating that a judgment on his support obligation had been entered in the Jefferson Parish Juvenile Court in Louisiana. The Louisiana judgment was dated October 31, 1994, and stated in pertinent part:

BACK $28, 607.00 TO IV-D AS OF 10/31/1994,

TESTIMONY TAKEN OF MS VEDROS, DEFENDANT, & MS LOGAN,[2] MOTION TO STAY INCOME ASSIGNMENT DENIED.

AGREEMENT REACHED.

WAGE ASSIGNMENT ORDERED IN THE AMOUNT OF $100.00 PER MONTH ON ARREARS ONLY AS SET THIS DATE AT $13,075.00, EFF. 12/1/94.

THIS IS AN ARREARS ONLY CASE IN THE STATE OF LOUISIANA.

¶ 4. An income assignment order was also entered on November 29, 1994, ordering Woodrow's employer to withhold $100 per month to satisfy the $13,075 arrearage.

¶ 5. After numerous continuances, the significance of which is discussed later, the chancery court entered a judgment for citation of contempt signed December 19, 1996, and filed January 24, 1997, finding Woodrow in arrears $39,696 as of January 8, 1997. An order of withholding was entered the same day. In response, Woodrow filed a petition to correct judgment on July 17, 1997, requesting that the chancery court give full faith and credit to the October 31, 1994, Louisiana judgment of $13,075 arrearage. Woodrow also requested that the December 19, 1996, judgment be corrected to reflect an arrearage of $13,075.

¶ 6. An agreed judgment was signed on May 14, 1998, and filed on May 26, 1998, signed by counsel for Cheryl and former counsel for Woodrow, stating that Woodrow was $39,696 in arrears. With new counsel, Woodrow filed on December 28, 1998, a motion for relief from the May 14, 1998, agreed judgment on the bases that he was not aware of the agreed judgment nor did he authorize his former counsel to execute the judgment.

¶ 7. The chancery court stayed execution of the previous judgments on March 30, 1999, reserved ruling on Woodrow's M.R.C.P. 62(b) motion, and ordered briefing on the efficacy of the Louisiana judgment and validity of the January 24, 1997, judgment. After briefing, the court found the December 19, 1996, judgment (which had been entered in response to DHS's *767 April 3, 1996, complaint) and resulting agreed judgment void for improper notice and lack of opportunity to defend:

The underlying complaint by DHS leading to that judgment was filed April 3, 1996. Summons was issued for Woodrow on that date, directed to Woodrow at an address in Metairie, Louisiana, and apparently placed in the hand of the Sheriff of Jefferson Parish, Louisiana, and indicates on its Return portion "not found, no such address". An Alias Summons was issued August 22, 1996, returnable to September 19, 1996, for Woodrow at an address in Kenner, Louisiana, and again apparently placed in the hand of the Sheriff of Jefferson Parish, Louisiana, which reflects on its Return portion that personal service was had on Woodrow on September 7, 1996; however, the Return is deficient in that it wholly fails to conform to the required form and detail for service by a Process Server. Thereafter, a copy of that deficient Return was filed on November 22, 1996 purporting to reflect on a Proof Of Service—Summons form the aforesaid personal service had on September 7, 1996; however, this effort is fatally deficient in that it wholly fails to provide the critical information required for the form itself. Nevertheless, and despite the deficiencies noted and lack of legal efficacy of the purported service of process, it is apparent that Woodrow did receive notice of the pending action, for on September 16, 1996 he filed with the Clerk a letter in response to the pending complaint, thereby putting himself in court in the matter, a fact which brings into play the all-important consideration of due process as it pertains to the subsequent actions, next addressed.
Those subsequent actions of great significance are as follows: DHS prepared a continuance order which was dated September 16, 1996 but which was filed October 1, 1996, continuing the matter until October 17, 1996. Thereafter DHS prepared another continuance order dated October 17, 1996 but which was filed October 30, 1996 continuing the matter until December 19, 1996. Though Woodrow had made an appearance in the matter by his filing of a letter and attached documentary evidence, there is a total lack of any showing or contention that he was ever contacted or noticed as to any aspect or further proceedings in this matter, and was totally and effectively deprived of knowledge about, or opportunity to appear at, the December 19, 1996 hearing which produced the purported judgment against him fixing his arrearage at the sum of $39,696 incorporated therein. Woodrow was clearly denied his constitutional due process rights and opportunity to defend, and the judgment issued is therefore void.

(italics in original & boldface added). An order was entered July 28, 1999, setting aside and cancelling the December 19, 1996, judgment and May 14, 1998, agreed judgment. The court also afforded Cheryl 30 days to amend her complaint. and Woodrow 30 days to answer.

¶ 8. Cheryl filed her complaint for citation of contempt and alternatively an amended complaint for contempt of former decree on October 1, 1999, apparently over one month late. The complaint sought, inter alia, $34,820.50 in arrearages plus interest for a total of $73,060.53.

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Cite This Page — Counsel Stack

Bluebook (online)
857 So. 2d 764, 2003 WL 22411110, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ladner-v-logan-miss-2003.