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Hilton v. Harvey

Court of Appeals of Mississippi

November 5, 2019

NATASHA LEIGH HILTON APPELLANT
v.
CHRISTOPHER JAMES HARVEY APPELLEE

          DATE OF JUDGMENT: 08/25/2017

          RANKIN COUNTY CHANCERY COURT HON. JOHN S. GRANT III JUDGE

          ATTORNEY FOR APPELLANT: MICHAEL CHAD MOORE

          ATTORNEY FOR APPELLEE: JANICE T. JACKSON

          BEFORE J. WILSON, P.J., TINDELL AND LAWRENCE, JJ.

          TINDELL, J.

         ¶1. On December 31, 2012, the Rankin County Chancery Court granted Natasha Hilton and Chris Harvey an irreconcilable-differences divorce. On May 20, 2016, Natasha filed a petition to require Chris to sign a passport application for their minor children to be able to leave the United States with her on vacation. Chris filed his answer to Natasha's petition on September 20, 2016, as well as a counter-petition for contempt, modification of custody, and attorney's fees. The chancellor ultimately modified the couple's custody arrangement in favor of Chris, held Natasha in contempt of court, and awarded attorney's fees to Chris. Natasha now appeals to this Court, arguing that Chris failed to properly serve her with a copy of the Mississippi Rule of Civil Procedure 81 summons for his counter-petition until after the 120-day deadline, in violation of Mississippi Rule of Civil Procedure 4.

         ¶2. We find that this case, as a domestic-relations matter, is governed by Rule 81 rather than Rule 4. Because Rule 81 has no 120-day deadline, we also find that service was not defective upon Natasha. We therefore affirm the chancellor's judgment.

         FACTS AND PROCEDURAL HISTORY

         ¶3. Natasha and Chris were married on June 11, 1984, and had two children from the marriage. On December 31, 2012, the chancellor granted Natasha and Chris an irreconcilable-differences divorce. In his final judgment of divorce, the chancellor referenced the couple's marital-dissolution agreement, wherein the couple agreed upon and were awarded joint legal custody of the two children. A special custody provision was included in the agreement, allowing Natasha to have mid-week visits with one or more of the children while they were in Chris's custody.

         ¶4. On May 20, 2016, Natasha filed a petition to require Chris to sign a passport application for their two children, which would allow her to take the children on vacation out of the country. On May 24, 2016, Natasha issued a summons for the petition to be heard on June 27, 2016. Chris claims that he was never served for this hearing, and no proof of service exists in the record. Chris's counsel, however, entered an appearance on June 10, 2016. At some point, the hearing was continued from June 27, 2016, to September 29, 2016. Natasha claims that this continuance was agreed upon by the parties, but nothing in the record confirms this assertion.

         ¶5. Natasha issued a new summons for the September 29 hearing on August 26, 2016, and Chris was served with the summons on August 27, 2016. On September 20, 2016, Chris filed an answer to Natasha's petition, as well as a counter-petition for contempt, modification of custody, and attorney's fees. That same day Chris filed a motion to continue the September 29 hearing. The parties ultimately agreed upon a hearing date of January 30, 2017. Natasha issued another summons upon Chris for the new hearing date on November 17, 2016, and Chris was properly served with the summons on the same day.

         ¶6. On December 5, 2016, Chris issued a summons for his counter-petition, but the summons was not served upon Natasha until January 24, 2017. The parties heavily dispute the reason for this delay. Natasha claims that Chris "didn't bother to have [her] served with the Rule 81 summons until January 24, 2017," which was 126 days after he filed his counter-petition. Chris, however, claims that "Natasha purposely avoided service of process until January 24, 2017," making the January 30 hearing untimely. In support of his claim, Chris submitted to the chancellor an affidavit signed by his process server, Tyler Miller, wherein Miller described his efforts to serve Natasha and Natasha's attempts to avoid service of process.

         ¶7. The parties agreed upon one final continuance of the case to July 18, 2017. Chris issued a second summons for the July 18 hearing, which was served upon Natasha on February 28, 2017. Chris claims that he issued this second summons to satisfy persistent complaints from ...


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