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)
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.
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."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
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.
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.
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."
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.
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
(¶12) (Miss. Ct. App. 2008)). Questions concerning
jurisdiction, however, are reviewed de ...