Vincent v. Griffin

852 So. 2d 620, 2003 Miss. App. LEXIS 924, 2003 WL 175795
CourtCourt of Appeals of Mississippi
DecidedJanuary 28, 2003
DocketNo. 2001-CA-01439-COA
StatusPublished
Cited by3 cases

This text of 852 So. 2d 620 (Vincent v. Griffin) 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
Vincent v. Griffin, 852 So. 2d 620, 2003 Miss. App. LEXIS 924, 2003 WL 175795 (Mich. Ct. App. 2003).

Opinions

MYERS, J.,

for the Court.

FACTS

¶ 1. David and Joan Vincent were granted a divorce by the Chancery Court of DeSoto County on February 24, 1997. The decree awarded both parents joint legal and physical custody of their three minor children. In November 1997, David and Joan agreed to alternate terms for child visitation, as permitted in the decree. These alternate terms gave David custody of the children on alternate weekends and up to two additional nights each week. David asserts that the parties later modified this schedule to allow him to have physical custody of the children from Thursday at 5:00 p.m. to the following Monday when he would deliver the children to school or back to their mother’s home. David further asserts that he and Joan agreed to suspend child support payments since each of them had the children for relatively equal amounts of time. Both David and Joan agree that David was to provide medical insurance for the chil[622]*622dren.1

¶ 2. In August 2000, Joan filed a petition for contempt seeking to compel David to pay three years of back child support. On August 31, a Rule 81 summons was issued informing David of the date and time of the hearing on the contempt motion. David made an appearance at the scheduled time, and the case was continued until October 2, at which time an administrative order was entered scheduling the matter for trial on November 15. On November 15, Chancellor Dennis Baker transferred the case back to Chancellor Percy Lyneh-ard, Jr., who had been the original chancellor who granted the parties’ divorce. During all of these proceedings, David appeared pro se.

¶ 3. On January 31, 2001, Joan’s attorney mailed David a letter along with an agreed order proposing a trial date of February 28. David did not respond to this letter, nor did he return the agreed order, or in any way contact Joan’s counsel concerning this correspondence. On February 21, Joan filed a motion for trial date setting noticing David to appear before the Chancery Court of DeSoto County on February 26, 2001, at 9:00 a.m. David claims to have never received this notice.

¶ 4. On February 26, the chancellor ordered a trial date of March 29. David claims to have not received any notice of this date, and did not appear for the trial. At the trial, Joan obtained a judgment for contempt and modification awarding her $21,560 in past due child support, sole legal and physical custody of the parties’ three minor daughters, and attorney’s fees of $6,080. David, again acting pro se, filed a motion for a new trial or to reopen the hearing for additional testimony on April 16. After filing this motion, David was able to retain counsel who now represents him on this appeal. Chancellor Lynchard denied this motion on August 9. David now appeals, stating the issues as:

1. WHETHER THE CHANCELLOR DENIED DAVID’S DUE PROCESS RIGHTS BY HEARING THE CASE WHEN DAVID DID NOT RECEIVE NOTICE OF THE TRIAL DATE.

2. WHETHER THE CHANCELLOR ERRED WHEN HE AWARDED JOAN PAST DUE CHILD SUPPORT AFTER JOAN TESTIFIED THAT THE GIRLS SPENT THURSDAY THROUGH MONDAY WITH DAVID.

3. WHETHER THE CHANCELLOR ERRED WHEN HE AWARDED ATTORNEY’S FEES TO JOAN VINCENT WHEN SHE HAD ABILITY TO PAY. DID THE AWARD UNFAIRLY PUNISH DAVID FOR HIS FAILURE TO APPEAR AND DAVID COULD NOT QUESTION THE REASONABLENESS OF THE FEES AWARDED?

DISCUSSION

I. David’s Due Process Claim

¶ 5. David first claims that since he did not receive notice of the order assigning a trial date, he did not receive procedural due process. David cites Mississippi Rule of Civil Procedure 40 for support of this argument, claiming the clerk of the trial court should have given him at least three days’ notice of the trial date. However, Mississippi Rule of Civil Procedure 81(d) controls where matters in either Rule 81(d)(1) or 81(d)(2) conflict with other provisions of the rules. Rule 81(d)(2) states that actions for modification or enforcement of child support and child custody actions are triable seven days after [623]*623completion of service of process (or thirty days after publication where service is by publication). “Other means of initiating an action or initially setting a matter on a docket are inapplicable in these actions.” Caples v. Caples, 686 So.2d 1071, 1074 (Miss.1996).

¶ 6. Further, Rule 81(d)(5) states, “[i]f 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.” (emphasis added). This language would suggest that no further notice is required once a defendant has been served with a Rule 81 summons.

¶ 7. In the instant case, Joan served David with a Rule 81 summons and David appeared at the ordered date and time. On that day, Chancellor Baker, to whom the case was assigned, continued the matter until October 2, 2000. David appeared at the October 2 hearing. At that hearing, an initial trial date of November 15 was set.

¶ 8. On November 15, Chancellor Baker heard brief arguments. He then decided to reassign the ease to Chancellor Lynch-ard, the chancellor who had originally granted the divorce. The reassignment order did not set a trial date, but directed Joan’s attorney to contact Chancellor Lynchard’s court administrator to set a date. Thus, Chancellor Baker complied with the text of Rule 81(d)(5); an order signed on that day continued the matter until a later day (to be set by Chancellor Lynchard).

¶ 9. The dissent relies on Caples to suggest that David did not receive sufficient notice. However, there are two key distinctions between Capíes and the case before us. First, the Caples’s divorce was granted by a Texas court. Gwendolyn Ca-pies started the Mississippi action by filing a complaint for modification of child support in the Chancery Court of the First Judicial District of Hinds County. Caples, 686 So.2d at 1071-72. Edgar Capíes had never appeared before a Mississippi court, nor had he availed himself of the jurisdiction of the court until the modification hearing. Unlike Edgar, David’s divorce was issued by the same court that held the hearing on Joan’s motion. It is well-settled Mississippi law that once a chancery court has granted a divorce, it has continuing jurisdiction over the parties in matters concerning the divorce. Stowers v. Humphrey, 576 So.2d 138, 141 (Miss.1991); Bradshaw v. Bradshaw, 418 So.2d 64, 65 (Miss.1982); Reichert v. Reichert, 807 So.2d 1282, 1287(¶ 16) (Miss.Ct.App.2002) (citing Powell v. Powell, 644 So.2d 269, 274 n. 4 (Miss.1994)). David was subject to the chancery court’s continuing jurisdiction.

¶ 10. Second, the summons in Capíes appears to be a Rule 4 summons. The supreme court’s opinion reads, “While Edgar was served a summons, it did not comply with 81(d) M.R.C.P. because it did not indicate the time and place the complaint would be heard.... ” Caples, 686 So.2d at 1074; see M.R.C.P. 81(d). The document which gave David notice of the hearing was a Rule 81 summons. It listed the time and date for David to appear. David did appear—twice—and he even filed a counterclaim in the same court.

¶ 11. David admits that he received the February 21, 2001 motion for a trial date. Yet, from that time on, he seems to have stopped attending motion hearings. It is a maxim of equity that “[ejquity aids the vigilant and not those who slumber on their rights.”

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Related

Brown v. Tate
95 So. 3d 745 (Court of Appeals of Mississippi, 2012)
Vincent v. Griffin
872 So. 2d 676 (Mississippi Supreme Court, 2004)

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Bluebook (online)
852 So. 2d 620, 2003 Miss. App. LEXIS 924, 2003 WL 175795, Counsel Stack Legal Research, https://law.counselstack.com/opinion/vincent-v-griffin-missctapp-2003.