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THOMAS PEYTON EDWARDS, JR. v. LINDA F. W. JAMES

JULY 18, 1984

THOMAS PEYTON EDWARDS, JR.
v.
LINDA F. W. JAMES



BEFORE ROY NOBLE LEE, ROBERTSON and SULLIVAN

ROY NOBLE LEE, PRESIDING JUSTICE, FOR THE COURT:

The Family Court of Spartanburg, South Carolina,

entered a consent decree on December 13, 1972, divorcing Thomas Peyton Edwards and Linda F. W. James (Edwards) and fixing support for a minor child of the parties at $50.00 per month to be paid by Edwards. Subsequently, on March 16, 1982, Linda James filed a petition for modification of the decree in the Chancery Court of Lowndes County, averring that Thomas Edwards was able to pay $350.00 per month support for the child and that there had been a material change in circumstances surrounding the child and the parties. Edwards filed a handwritten pro se answer to the petition for modification, setting out his inability to pay additional support.

 The docket setting for the April 1982 Term of the Lowndes County Chancery Court occurred on Monday, April 12, 1982, at which setting James did not appear to request a trial setting. The record is not clear whether Edwards was present for the docket call.

 On April 19, 1982, the lower court issued a fiat setting 1:30 p.m., April 29, 1982, for hearing the modification petition and a petition to cite for contempt. *fn1 On that date, viz, April 29, 1982, the court proceeded with hearing the modification petition in the absence of Edwards, increased the child support payments to $175.00 per month, and awarded $200.00 for James' attorney's fees.

 On July 1, 1982, Edwards filed a petition to set aside the April 29, 1982, order modifying the original decree and increasing child support, and, on September 23, 1982, James filed a petition to cite Edwards for contempt because of his failure to make the $175.00 support payments. An agreed order was entered setting December 16, 1982, for hearing the contempt citation and the petition to set aside the decree. Edwards filed an answer on November 16, 1982, setting out as an affirmative defense that the order of April 29, 1982, *fn2 was entered without notice to him and that he was denied due process of law when the hearing proceeded in his absence. The petition to set aside the April 29, 1982, order was overruled and Edwards has appealed to this Court with supersedeas.

 Edwards assigns as error that he was not given notice of the April 29, 1982, modification hearing and, therefore, was not afforded an opportunity to appear and present his defense. James does not deny that Edwards failed to receive notice of the hearing. We address only that question.

 The Mississippi Rules of Civil Procedure pertinent to the question follow:

 Rule 40 (b)

 (b) Notice. The clerk shall, at least twenty days prior to the date cases will be set for trial, notify all attorneys of record of the time and date the trial calendar will be set. After setting, the clerk forthwith, and in no event more than three days after an action has been placed on the trial docket, shall notify all attorneys of record of trial settings by mailing a copy of the docket of the court.

 Rule 81 (d)

 (d) Domestic Relations. Complaints, petitions, or motions for temporary relief pending a divorce or separation action, for modification of custody, support, and alimony judgments, and for enforcement of such judgments by contempt proceedings or otherwise, shall be governed by the provisions of these rules as to motions.

 Rule 6 (d)

 (d) Time: Motions. A written motion, other than one which may be heard ex parte, and notice of the hearing thereof, shall be served not later than five days before the time fixed for the hearing, unless a different period is fixed by these rules or by order of the court. Such an order may for cause shown be made on ex parte application. When a motion is supported by affidavit, the affidavit shall be served with the motion; and, except as otherwise provided in Rule 59 (c), opposing ...


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