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Garner Pritchard v. Pritchard

Court of Appeals of Mississippi

August 27, 2019

LISA D. GARNER PRITCHARD APPELLANT
v.
DONALD L. PRITCHARD APPELLEE

          DATE OF JUDGMENT: 05/03/2018

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

          ATTORNEY FOR APPELLANT: CHARLES MARTIN HAUG

          ATTORNEY FOR APPELLEE: TIMOTHY C. HUDSON

         EN BANC.

          C. WILSON, J.

         ¶1. Lisa Pritchard appeals the chancery court's order denying her motion to set aside judgment of divorce, entered on May 3, 2018; the order denying her motion to reconsider, entered on May 25, 2018; and, in whole, the final decree of divorce, entered on June 5, 2017. Lisa raises two issues on appeal: (1) whether the chancery court erred by finding it had jurisdiction over the parties and thereafter entering a judgment of divorce and property distribution order; and (2) whether the chancery court erred by denying her motion to set aside judgment of divorce. Because service of process failed to comply with the requirements of Rule 4 of the Mississippi Rules of Civil Procedure, we find that the chancery court lacked jurisdiction at the time it entered the final decree of divorce, rendering the chancery court's divorce decree void. Thus, the chancery court erred by denying Lisa's motion to set aside judgment of divorce. Accordingly, we reverse the chancery court's order denying the motion to set aside, vacate the final decree of divorce and the accompanying distribution of marital assets, and remand for further proceedings.

         FACTS AND PROCEDURAL HISTORY

         ¶2. Donald and Lisa Pritchard were married on March 15, 1997, in Montgomery County, Alabama. They lived together as husband and wife in Lowndes County, Mississippi, until Lisa relocated to Alabama in either 2011 or 2012. Donald remained in Mississippi.

         ¶3. On March 1, 2017, Donald filed a complaint for divorce with the Chancery Court of Lowndes County, Mississippi. In the complaint for divorce, Donald alleged he was entitled to a divorce on the grounds of adultery, habitual drug use, and desertion or, in the alternative, irreconcilable differences. He sent a copy of the complaint for divorce along with a Summons via certified mail to two different addresses he knew Lisa to use in the State of Alabama-her primary residence and her mother's residence. Neither copy of the complaint for divorce and summons was marked "restricted delivery," and the copy delivered to Lisa's primary residence was neither delivered nor refused. Instead, after three attempted deliveries on March 8, 2017; March 17, 2017; and March 27, 2017, the post office marked the copy addressed to Lisa's primary residence "Unclaimed" and returned it to the sender.

         ¶4. On April 14, 2017, Lisa's sister, Pamela Berthiaume, retrieved the copy delivered to Lisa at their mother's address. Berthiaume signed the return receipt, indicating that she was Lisa's agent.[1] Three days later, Donald filed the return receipt Berthiaume signed with the chancery court as proof of service that Lisa was served by certified mail on April 14, 2017. See M.R.C.P. 4(f). The court clerk docketed Lisa's answer due date as May 14, 2017. The April 17, 2017, proof of service by certified mail Donald filed is the only proof of service in the trial court record.

         ¶5. Berthiaume delivered the mail to Lisa at her residence sometime between two days and two weeks after Berthiaume signed for it. Due to a "series of debilitating illnesses" that rendered Lisa unable to read the contents of the mailing herself, Berthiaume opened the mail, read the contents to Lisa, and explained to Lisa that the papers were a proposal for an irreconcilable differences divorce which required her signature if she agreed.[2] Lisa later testified that she was unaware of any summons being enclosed and denied that she was advised that she had to respond to the complaint within any specific time period to protect her rights.

         ¶6. Lisa did not sign the papers or otherwise timely respond, and only Donald appeared in court for a hearing regarding his complaint for divorce. After hearing the testimony and considering the evidence presented, the chancery court granted a divorce on the ground of desertion and entered its final decree on June 5, 2017.

         ¶7. Lisa filed a motion to set aside judgment of divorce on June 13, 2017. In her motion, she alleged the chancery court lacked jurisdiction because she was never properly served with the complaint for divorce. She also requested the opportunity to answer and seek an equitable distribution of marital assets via a counterclaim for divorce.[3] Lisa filed an answer to Donald's complaint for divorce on June 16, 2017.

         ¶8. On April 24, 2018, the chancery court held a hearing on Lisa's motion to set aside judgment of divorce, and on May 3, 2018, the chancery court entered an order denying Lisa's motion. The chancery court determined that Lisa was properly served by certified mail; Lisa had actual notice of the complaint for divorce and failed to answer or defend as required by law; and as a result, the court had jurisdiction to enter the final decree of divorce.

         ¶9. Lisa filed a motion to reconsider on May 7, 2018, pursuant to Rule 59 of the Mississippi Rules of Civil Procedure. In this motion, Lisa contended that regardless of whether service of process was defective, equity demanded the chancery court consider the circumstances that precluded her from "comply[ing] with the technical requirements to protect her rights" and allow her to be heard on the equitable distribution of marital assets. Donald filed a response on May 10, 2018, and the chancery court entered an order denying Lisa's motion to reconsider on May 25, 2018.

         ¶10. Lisa timely filed her notice of appeal on June 19, 2018.

         STANDARD OF REVIEW

         ¶11. We will not disturb a chancellor's findings of fact "unless the chancellor's decision is manifestly wrong or unsupported by substantial evidence." Bougard v. Bougard, 991 So.2d 646, 648 (¶12) (Miss. Ct. App. 2008). But "[w]hen reviewing questions concerning jurisdiction, this Court employs a de novo review." Sanghi v. Sanghi, 759 So.2d 1250, 1252 (¶7) (Miss. Ct. App. 2000). Sufficiency of process is a jurisdictional issue. Clark v. Clark, 43 So.3d 496, 499 (¶9) (Miss. Ct. App. 2010).

         DISCUSSION

         ¶12. The controlling issue on appeal is whether Donald's attempted service by certified mail under Rule 4(c)(5) of the Mississippi Rules of Civil Procedure was sufficient to confer jurisdiction over Lisa in this divorce proceeding. If service of process was deficient, the chancery court lacked jurisdiction, and the final decree of divorce is void and must be set aside.

         ¶13. In its order denying Lisa's motion to set aside, the chancery court found that (1) Lisa was properly served by certified mail; (2) Lisa had actual notice of the complaint for divorce and failed to answer or defend as required by law; and (3) as a result, the court had jurisdiction to enter the final decree of divorce. Because the record demonstrates that Lisa was not properly served by certified mail and because "actual notice" of the complaint for divorce was insufficient to perfect service of process and vest the chancery court with jurisdiction, the chancery court erred by denying Lisa's motion to set aside. Therefore, we reverse the chancery court's order denying the motion to set aside, vacate the final decree of divorce, and remand for further proceedings.

         I.Service of Process by ...


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