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NATHANIEL ROCIMAN MAYOZA v. LAURA BETH (HARVEY) MAYOZA

JUNE 03, 1988

NATHANIEL ROCIMAN MAYOZA
v.
LAURA BETH (HARVEY) MAYOZA



BEFORE ROY NOBLE LEE, P.J.; ROBERTSON AND ANDERSON, JJ.

ROBERTSON, JUSTICE, FOR THE COURT:

I.

This appeal presents a claim for relief from the Chancery Court's refusal to vacate a final judgment of divorce entered following an uncontested hearing. Appellant Nathaniel Mayoza says he made no contest because he was too broke to hire a lawyer and did not know he could appear and

 defend without one. The Chancery Court denied his motion to vacate. Finding this ruling within that Court's discretionary authority, we affirm.

 II.

 On June 9, 1986, Laura Beth Harvey Mayoza filed in the Chancery Court of DeSoto County, Mississippi, her complaint for divorce naming as Defendant her husband, Nathaniel Rociman Mayoza. The Sheriff's return reflects that Nathaniel was personally served with process on June 10, 1986. In language quite plain and unequivocal, the summons advised Nathaniel that his answer was due in thirty days. *fn1

 According to the record Nathaniel made no response or appearance. On July 23, 1986, some 43 days after service of process, Laura Beth appeared before the Chancery Court in accordance with the custom and usage for handling uncontested divorces. The Chancery Court thereupon found that Nathaniel was guilty of habitual and inhuman treatment and adjudged that the parties be divorced. The judgment further provided that Nathaniel pay to Laura Beth the sum of $400.00 per month as permanent alimony and that she be awarded exclusive use and possession of the parties' residence in Hernando, Mississippi, together with all household goods and appliances and personal effects.

 On July 24, 1986, Nathaniel appeared pro se and filed a motion to set aside or rehear. The Chancery Court heard the matter on July 29, 1986, at which time Nathaniel appeared without counsel. The hearing was marked by Nathaniel's lay effort to excuse his default and obtain relief from the judgment of divorce on grounds that he did not know he could appear and defend pro se. Nathaniel described his efforts to get a lawyer but testified that no one would represent him because he could not pay a fee. Nathaniel made no showing of any colorable defense to the merits of the complaint for divorce, that is, the charge of habitual cruel and inhuman treatment. He argued, however, that his precarious financial position would make it impossible for him to meet the alimony payments ordered and that some of the personal effects in the residence were not his.

 In the end, the Chancery Court held that Nathaniel's showing was insufficient to justify vacation of the judgment of divorce, and on July 30, 1986, the Court entered an order overruling his motion to set aside and rehear. It is from this latter order that Nathaniel now appeals.

 III.

 A.

 We need to clarify the focus of our procedural context. The handling of the matters in issue, both here and below, is regulated and governed by the Mississippi Rules of Civil Procedure. Our starting point is Rule 81(a)(9), Miss.R.Civ.P., which provides for limited applicability of the Civil Rules to all proceedings under Title 93 of the Mississippi Code of 1972. Actions for divorce arise under Title 93, more specifically, under Miss. Code Ann. 93-5-1 et seq. (1972 and Supp. 1987). Rule 81 provides that the Civil Rules are auxiliary to and suppletive of the statutory rules of procedure, that is, to the extent that the statutory procedural scheme be silent, or not inconsistent, the Mississippi Rules of Civil Procedure govern, but to that extent only. Clark v. Whiten, 508 So.2d 1105, 1107 (Miss. 1987); Vining v. Mississippi State Bar Association, 508 So.2d 1047, 1048 (Miss. 1987); Bias v. Bias, 493 So.2d 342, 343 n.1 (Miss. 1986); First Mississippi National Bank v. KLH Industries, Inc., 457 So.2d 1333, 1336 (Miss. 1984).

 Seen in this light, we are concerned with a special kind of default judgment. Miss. Code Ann. 93-5-17 (1972) provides that uncontested actions for divorce must nevertheless be heard in open court. By mandate of Rule 81(a)(9), the default procedure under Rule 55 is supplanted. The statutory procedure governs, as it existed pre-January 1, 1982, and as it exists today.

 Nothing in our divorce statutes, however, prescribes a procedure for reconsideration of or reopening of default/uncontested divorces. For this reason, Nathaniel's motion to set aside was and is governed by two procedural rules, neither of which has been supplanted in any way by Rule 81-empowered statutory procedures. See Rules 59 and 60(b), Miss.R.Civ.P. The motion may be treated as one for a new trial under Rule 59, inasmuch as it was filed and served within ten days after ...


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