Morrison v. Mississippi Department of Human Services

852 So. 2d 578, 2002 Miss. App. LEXIS 616, 2002 WL 31501888
CourtCourt of Appeals of Mississippi
DecidedNovember 12, 2002
Docket2001-CA-01088-COA
StatusPublished
Cited by3 cases

This text of 852 So. 2d 578 (Morrison v. Mississippi Department of Human Services) 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
Morrison v. Mississippi Department of Human Services, 852 So. 2d 578, 2002 Miss. App. LEXIS 616, 2002 WL 31501888 (Mich. Ct. App. 2002).

Opinion

852 So.2d 578 (2002)

Gary W. MORRISON, Appellant,
v.
MISSISSIPPI DEPARTMENT OF HUMAN SERVICES, Appellee.

No. 2001-CA-01088-COA.

Court of Appeals of Mississippi.

November 12, 2002.
Rehearing Denied March 11, 2003.

*579 Terry Lynn Wood, Corinth, attorney for appellant.

Vickie R. Mitchell, Corinth, attorney for appellee.

EN BANC.

SOUTHWICK, P.J., for the court.

¶ 1. Gary W. Morrison was found in contempt of a child support modification order by the Alcorn County Chancery Court. He appeals, arguing that he had not received proper notice of the hearing at which the modification occurred. We disagree and affirm as to the general validity of the judgment. However, we reverse and render that part of the judgment that required Morrison to pay the expenses necessary for his son to obtain a master's degree.

FACTS

¶ 2. Annie R. Windom bore a son, Christopher, in 1974. An order of affiliation was entered in 1988. It stated that Gary Morrison admitted paternity and agreed to pay child support of twenty five dollars per week, increased to fifty dollars per week seven months later. Morrison also agreed *580 that Christopher would not be considered emancipated until he obtained a four-year college degree. The parents agreed to share the educational expenses of a mutually agreed-upon secondary institution.

¶ 3. In December 1993, Windom filed a petition for contempt and modification of the 1988 support level. Christopher had begun attending college; Morrison allegedly failed to make some child support payments. A proper summons addressed to Morrison in Georgia was issued by the chancery court clerk on January 5, 1994, but the record does not contain a return of service.

¶ 4. The petition for contempt and modification was heard on January 19, 1994. Morrison did not attend nor did his counsel. The chancellor found that Morrison had been properly served, judged him in contempt, and awarded Windom $11,683.04 in support and expense arrearage. Child support was increased to $125 per week until Christopher obtained a master's degree, provided that he remained enrolled full-time and maintained sufficient grades.

¶ 5. In February 1994, the Mississippi Department of Human Services filed a petition with its Georgia counterpart for entry of a Uniform Reciprocal Enforcement Support Act order. This order directed Morrison to send all future payments to DHS for distribution to Windom. In September 1995, an order to withhold support from Morrison's wages was issued by the chancellor and forwarded to Morrison's Georgia employer. The employer never complied with the order.

¶ 6. Christopher left college in April 1999. In November 1999, a second order of withholding was issued to Morrison's new employer. Morrison did not attend the hearing on the matter, nor was he represented by counsel. The order directed the new employer to withhold fifty dollars per week for payment of the arrearage and forward those funds to DHS. A second petition for contempt was filed by DHS in March 2000. Morrison answered this petition, filing a motion to dismiss that claimed that he never received service of process on the 1994 petition for contempt and modification and that the statute of limitation on the collection of child support had expired.

¶ 7. A hearing on Morrison's motion to dismiss was held in June 2000. Morris was represented by counsel. The chancellor denied the motion in July 2000, finding that Morrison had been properly served by mail in 1994. A hearing on the DHS contempt motion was held in May 2001. By order entered June 12, 2001, the chancellor found Morrison in willful contempt, awarded $46,693 in back support and expenses, and ordered Morrison jailed for ninety days. However, the sentence was to be held in abeyance upon Morrison's payment of $1500. Morrison was also to pay $500 per month toward reducing the arrearage. Another order of withholding was issued to his employer.

¶ 8. Morrison has appealed.

DISCUSSION

a. Motion to dismiss the 2000 contempt petition.

¶ 9. Morrison assigns three specific points of error to the decision to deny his motion to dismiss the March 2000 petition for contempt. First, he asserts that the motion should have been granted because it was based upon his noncompliance with the 1994 order. Morrison argues that he was never served with notice of the 1994 contempt hearing and that the judgment is invalid. If that is so, he could not be held in contempt for failing to comply with it.

¶ 10. In child support cases, personal jurisdiction over a party is had by *581 compliance with the provisions of Mississippi Rule of Civil Procedure 81(d)(5), which requires issuance of a summons commanding the defendant to appear at a particular time and date. The record indicates a Rule 81 summons was issued by the Alcorn County Chancery Court Clerk. No return of service nor notation on the docket of a return appears.

¶ 11. Morrison waited six years to attack the 1994 contempt and modification order. This constitutes a collateral attack on the former judgment.

In a direct attack on a decree it is, of course, competent to show that there was no service of summons, but in a collateral attack, as is here made, unless the record affirmatively shows to the contrary, all jurisdictional facts are conclusively presumed to have existed, including the proper service of process. It is not enough that the return of service is merely missing from the record— and that is all that is shown here.

Bray v. City of Meridian, 723 So.2d 1200, 1204 (Miss.Ct.App.1998), quoting Whitley v. Towle, 163 Miss. 418, 425-26, 141 So. 571, 572 (1932). In between its origin and our quoting, that same language was again employed by the Supreme Court. Case's Will v. Case, 246 Miss. 750, 761, 150 So.2d 148, 152 (1963).

¶ 12. To set aside the six-year old judgment in 2000, Morrison needed to make an affirmative showing of failure to serve. Among such affirmative showings would be a returned envelope with the summons showing that it was undeliverable, or a return of service from a process server that the defendant could not be found or that the address was incorrect. An "affirmative" showing of failure to serve as required for a collateral attack does not mean simple silence in the record. That is not an "affirmative"—defined as "that which declares positively, ... the opposite of negative." BLACK'S LAW DICTIONARY 60 (6th ed.1990). If declaring affirmatively is the opposite of declaring negatively, then silence is in the precise middle. Nothing is declared at all. The sounds of silence are not the equivalents of declarations.

¶ 13. Not only is there no return of service in this record, there is also no docket entry demonstrating service. However, had there been a docket entry, no presumption of service would be needed. The Supreme Court long ago stated that a "record by a justice of the peace on his docket of the issuance and return of process is as much entitled to be accepted as true, as would a copy of the summons and the return on it, certified by him." Hughston v. Cornish, 59 Miss. 372, 374 (1882). The point is not often contested, but that principle has been cited more recently. E.g., Walton v. Gregory Funeral Home, 170 Miss. 129, 154 So. 717, 719 (1934). The absence of the actual return, when the docket shows service was made, is no defect for which a presumption is required.

¶ 14.

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Related

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911 So. 2d 562 (Court of Appeals of Mississippi, 2005)
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852 So. 2d 578, 2002 Miss. App. LEXIS 616, 2002 WL 31501888, Counsel Stack Legal Research, https://law.counselstack.com/opinion/morrison-v-mississippi-department-of-human-services-missctapp-2002.