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Edwards v. Pierce Edwards

Court of Appeals of Mississippi

February 12, 2019

JOHNNY JEROME EDWARDS APPELLANT
v.
NANCY JEWEL PIERCE EDWARDS APPELLEE

          DATE OF JUDGMENT: 08/24/2017

          LOWNDES COUNTY CHANCERY COURT HON. KENNETH M. BURNS, JUDGE

          ATTORNEY FOR APPELLANT: DAVID S. VAN EVERY SR.

          ATTORNEY FOR APPELLEE: NANCY JEWEL PIERCE EDWARDS (PRO SE)

         EN BANC.

          BARNES, C.J.

         ¶1. Johnny and Nancy Edwards were divorced on December 23, 2013. The Lowndes County Chancery Court awarded Johnny the marital home, and he was to refinance the mortgage within ninety days of the judgment to free Nancy from any mortgage-debt obligation. If unable to refinance within the ninety days, Johnny was to sell the marital home, and he was to receive the equity from the sale. Johnny appealed the decision, which was affirmed by this Court in Edwards v. Edwards, 189 So.3d 1284 (Miss. Ct. App. 2016). The only issue raised in that appeal, however, was the court's findings regarding the award of child custody.

         ¶2. While the appeal was pending, Nancy filed a petition for contempt and to modify the former opinion. She claimed Johnny had refused to sell the marital home per the court's order and had defaulted on mortgage payments, "adversely affecting her credit standing."[1]Johnny filed a motion for continuance on October 26, 2015. The chancery court granted the continuance, setting a hearing for January 7, 2016, in the Oktibbeha County Chancery Court. The hearing was later continued to March 15, 2016, in the Chickasaw County Chancery Court.

         ¶3. One day before the March 15 hearing, Johnny's attorney moved to withdraw as counsel. After the hearing, the chancery court entered its opinion and judgment on June 3, 2016, finding Johnny in civil contempt of the court's 2013 judgment and ordering the marital home be sold within sixty days. If the house was not sold, it was to be auctioned by the Lowndes County Chancery Clerk. Johnny was ordered to appear before the chancery court on September 20, 2016, for a compliance hearing. Johnny filed a Mississippi Rule of Civil Procedure 59 motion to alter or amend the court's contempt order, arguing that Nancy's own actions-not conveying the quitclaim deed until 2014-had prevented Johnny from complying with the court's order. The chancery court denied the motion.

         ¶4. A fiat was filed on March 22, 2017, setting a review hearing for April 11 in the "Oktibbeha County Courthouse/Chancery Building in Starkville, Mississippi." On April 11, 2017, another fiat was entered, re-setting the hearing for May 15, 2017, at 9:00 a.m. in the "Oktibbeha County Courthouse/Chancery Building in Starkville, Mississippi." The fiats did not reference Johnny or his attorney but simply stated: "Process in accordance with this [f]iat shall issue for the Respondent." A Mississippi Rule of Civil Procedure 81 summons was issued to Johnny Jerome Edward (not Edwards) on April 11, requesting that he "appear and defend against said complaint or petition at 9:00 O'clock A.M. on the 15th day of May, A.D., 2017, in the courtroom of the Oktibbeha County Courthouse at Columbus, Mississippi." The proof of service of summons indicated that the summons was delivered to Hazel Harris, Johnny's "daughter," on April 19, 2017, at his place of residence and later mailed to the residence on April 27.

         ¶5. On May 15, the hearing was continued by the chancery court until June 19, 2017, in the Lowndes County Courthouse in Columbus. Neither Johnny nor his attorney appeared. In its judgment dated August 24, 2017, the chancery court found Johnny in contempt of the court's prior order. The court ordered Johnny to vacate the marital residence within thirty days of the judgment, and the home was to be sold at a public auction to satisfy the existing debt. The chancery court noted that only Nancy and her attorney were present at the June 19 hearing, and Johnny, "after being appropriately served with service of process of this [c]ourt, failed to appear or provide representation."

         ¶6. Appealing the judgment, Johnny contends that the summons for the May 15, 2017 hearing was defective under Rule 81 and service of process was improper under Rule 4(d)(1)(B) of the Mississippi Rules of Civil Procedure. As a result of the failure to provide him proper notice of the hearing, Johnny argues that he was denied due process and that the court's judgment is void. Finding merit to Johnny's claim regarding the defective summons, we reverse and remand the judgment for further proceedings.

         STANDARD OF REVIEW

         ¶7. We will not disturb a chancery court's fact-finding "unless the [court's] decision is manifestly wrong or unsupported by substantial evidence." Clark v. Clark, 43 So.3d 496, 499 (¶9) (Miss. Ct. App. 2010) (quoting Bougard v. Bougard, 991 So.2d 646, 648 (ΒΆ12) (Miss. Ct. App. 2008)). Questions concerning jurisdiction, however, are reviewed de ...


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