BEFORE ROY NOBLE LEE, C.J., PRATHER AND ROBERTSON, JJ.
PRATHER, JUSTICE, FOR THE COURT:
ON PETITION FOR REHEARING TO EXPEDITE APPEAL
This appeal addresses the sufficiency of a diligent search and inquiry under Mississippi's summons by publication rule, Miss. Rules of Civil Procedure 4 (c)(4)(A). This Court determines that the publication notice was insufficient because of inadequate search and inquiry to support an unknown address affidavit.
Betty Lu Caldwell (Hall), appearing specially to contest the Mississippi court's jurisdiction, filed a motion in the Chancery Court of Harrison County seeking to set aside a modification decree changing custody of children from her to her ex-husband, Melvin Douglas Caldwell. The Harrison County Chancery Court held that there had been a diligent search and inquiry for Mrs. Hall without success and that the process by publication was sufficient. From this adverse ruling, Mrs. Hall appeals to this Court.
Although the appellant's brief addresses several assignments of error, this Court addresses only one issue necessary for resolution of this appeal, which is whether diligent search and inquiry had preceded the appellee's affidavit for summons process by publication.
Betty Lu Caldwell (Hall) and Melvin Douglas Caldwell have two children, Dawn and Tanya, from their marriage. An interlocutory decree of divorce was granted in December, 1975 in California, which divorce became final six months later, and which decree granted Mrs. Hall custody of the children. Around February 18, 1986, while residing in Norwich, Connecticut, Mrs. Hall had financial difficulties, and testified that she was receiving no child support from her ex-husband. Nor would her ex-husband's family tell her of his whereabouts. She telephoned her ex-mother-in-law, Mrs. Imogene Caldwell Curry, in Shepard, Texas and asked if the children could visit with her on the farm while Mrs. Hall made an adjustment, to which request Mrs. Curry readily agreed. Within the hour, Mrs. Curry telephoned the appellant and stated that the children's airplane tickets had been purchased for the next day.
The children arrived and were met by their father at the airport. Without telling Mrs. Hall, the grandmother asked the children if they wanted to go visit with their father in Mississippi; they responded affirmatively and did so. This
move was without Mrs. Hall's knowledge or consent. Mrs. Hall then moved to Anchorage, Alaska. The two children were enrolled in school in Biloxi, Mississippi by their father, who was stationed at Keesler Air Force Base.
Around March 21, 1986, Mrs. Hall located the whereabouts of her children from a sister-in-law and telephoned them. The girls assured their mother that they were well and asked her permission to stay; Mrs. Hall consented to their staying until Christmas.
During the mid or late part of August, 1986, Mrs. Hall testified she received a telephone call from her ex-husband's attorney, Gerald Smith. Smith asked if she would sign temporary papers to enable Mr. Caldwell to get medical help for the children if such became necessary. Mr. Caldwell was "sponsor of the children in the military" and could already secure medical services for the children. Mrs. Hall asked if any legal proceedings were being instituted in Mississippi for change of child custody to the father. Smith advised Mrs. Hall that such proceedings were being sought by Mr. Caldwell. She gave to Gerald Smith her full address and telephone number at her mother's residence of 1280 East 17th, Apartment 307, Anchorage, Alaska. No legal papers were ever received by Mrs. Hall. Numerous phone calls were made by Mrs. Hall to her children as well as to the two attorneys in Gulfport, Mississippi, one representing her and one representing her ex-husband. Verification of the placing of these telephone calls was exhibited to the court.
A motion to modify custody was filed on May 19, 1986 in Harrison County Chancery Court alleging Mrs. "Caldwell's" address to be "7709 East 4th Street, Anchorage, Alaska 99504. A temporary custody decree was entered on May 23, 1986, before process by publication was completed. Attorney Smith verified having had a telephone conversation with Mrs. Hall, but the date of which was uncertain. He did state he wrote to" Mrs. Betty Lu Caldwell "at" 7709 East 4th Street, Anchorage, Alaska 99504 "in May, 1986. That letter, exhibited to the court, was not delivered, nor refused.
Having learned of a second address, Smith mailed another letter to Mrs. Betty Lu Caldwell at" 1280 East 17th Street, Anchorage, Alaska 99501, "on August 22, 1986. This certified letter also was returned to Smith undelivered, but not refused. It is noted that the address failed to ...