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TIMOTHY PETER O'NEILL v. MILDRED WILHELMINA MORSE O'NEILL

NOVEMBER 25, 1987

TIMOTHY PETER O'NEILL
v.
MILDRED WILHELMINA MORSE O'NEILL



BEFORE ROY NOBLE LEE, P.J., PRATHER AND SULLIVAN, JJ.

PRATHER, JUSTICE, FOR THE COURT:

The case at bar involves an appeal from the Chancery Court of the First Judicial District of Harrison County, Mississippi wherein the court granted Mildred Wilhelmina Morse O'Neill a divorce from Timothy Peter O'Neill and handled related marital issues.

On appeal, Timothy Peter O'Neill assigns as error, inter alia, the following:

 (1) The trial court erred by failing to sustain the appellant's motion to dismiss for lack of jurisdiction over the person of the appellant and in finding in its final judgment that the court had full jurisdiction of both parties.

 (2) The trial court erred in failing to sustain the appellant's motion to dismiss for lack of jurisdiction of the subject matter and by finding in its final judgment that the appellee had been an actual bona fide resident citizen of the First Judicial District of Harrison County, Mississippi for more than six months next preceding the filing of her complaint and amended complaint.

 I.

 Mildred Wilhelmina Morse O'Neill (hereafter Millie) and Timothy Peter O'Neill (hereafter Tim) were married in Gulfport, Mississippi, on October 29, 1983. Millie, a lifelong resident of Gulfport, met Tim while he was assigned to Keesler Air Force Base. In November, 1983, Tim and Millie were reassigned to Germany where their only child, Meghan Nichole O'Neill, was born.

 Prior to and following the birth of Meghan, the marriage experienced many problems. By July, 1984, Tim suggested to Millie that she return to Mississippi. Leaving Germany, Millie returned to Gulfport with Meghan on August 18, 1984. With the couple discussing separation and divorce, Tim returned to Mississippi in October to see Millie. While Tim was in the United States, Millie, around November 16, 1984,

 returned to Germany in order to ship her clothes and belongings to Gulfport.

 Upon returning to the United States, Millie proceeded with divorce proceedings against Tim. On December 28, 1984, she filed a complaint seeking a divorce on the grounds of irreconcilable differences. The parties initiated negotiations on a property settlement. However, on April 1, 1985, Tim filed a" request "for a stay of proceedings for six months under the Soldiers' & Sailors' Civil Relief Act. The request was under oath and averred that O'Neill's military duty station in Germany and his duties there materially interferred with his participation in this lawsuit in the United States without a civilian attorney. This instrument specifically stated that the request" is not to be construed as an appearance ".

 After two more months, Millie filed an amended complaint on May 3, 1985, alleging additional grounds of cruel and inhuman treatment and habitual drunkenness. Notice of the amended complaint was given to Tim by publication requiring an answer thirty (30) days" after the 13th day of May, 1994 *fn1 which is the date of the first publication . . . . "

 On July 9, 1985, Millie filed a motion to dismiss the stay of proceedings filed by Tim under the Soldiers' & Sailors' Civil Relief Act. Respectively, a hearing on the motion to dismiss was held, but without any apparent notice to Tim, and on July 25 the court ruled that Tim had made an appearance through his request for the stay of the proceedings. The court found that Tim had sufficient notice of the complaint, but was in default for failure to file an answer and granted twenty (20) days to file responsive pleadings to the complaint or suffer default.

 On August 12, 1985, Tim, by his now employed civilian attorney, filed a motion to dismiss the divorce bill, under a M.R.C.P. Rule 12 (b) motion, for lack of jurisdiction over his person or the subject matter as the plaintiff had not been a resident of Mississippi for six months prior to filing the divorce bill. Both the original and amended sworn complaints for divorce allege that the date of separation of the parties was November 16, 1984.

 In response to the subject matter jurisdictional question, Millie then filed an affidavit stating that she had always been a resident of the State of Mississippi and intended to maintain her Mississippi residency, even though she married Tim and subsequently moved with him to his duty assignment in Germany. She asserted that she returned from

 Germany in August, 1984 and resided there since that date.

 Having before it these pleadings and argument of counsel, but apparently without any proof at that time, the chancellor entered an order on September 18, 1985 overruling Tim's motion to dismiss the suit for lack of jurisdiction of the subject matter and his person. On the same date the attorney for Tim filed an answer for ...


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