Pearson v. Browning
106 So. 3d 845
| Miss. Ct. App. | 2012Background
- Pearson appeals a Chancery Court contempt judgment and a Browning judgment for 53,528.22.
- The court dismissed Pearson's claims with prejudice on February 2, 2009, leaving Browning's contempt claims.
- A trial date was set for August 6, 2009; no order before that date changed the date to November 3, 2010.
- Court administrator’s notice in June 2010 set the trial date to November 3, 2010, without a Rule 81 summons.
- Pearson appeared pro se on November 3, 2010 and objected to the short notice and sought a continuance; the court denied continuance and entered judgment on November 18, 2010.
- Rule 81(d)(2) governs modification or enforcement of custody, support, and alimony judgments and contempt; Rule 81 summons are required for such actions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did the chancery court have jurisdiction under Rule 81? | Pearson contends no Rule 81 summons; jurisdiction lapsed. | Browning argues continued jurisdiction via notices and appearances. | Jurisdiction was lacking; judgment void. |
| Was Browning's filing a contempt petition or a mere motion? | Pearson treated filing as improper, not a petition for contempt. | Browning's filing was a petition for contempt and enforceable under Rule 81(d). | The filing was a petition for contempt. |
| Was the court administrator’s notice sufficient to substitute for a Rule 81 summons? | Notice alone could not substitute for a Rule 81 summons after February 2009. | Notice plus appearance sufficed under Bailey when appropriate. | Not sufficient; required proper Rule 81 summons. |
| Did Pearson waive lack of proper Rule 81 summons by appearing? | Appearance was not a waiver given lack of notice. | Appearance constitutes waiver if defendant shows willingness to defend. | Pearson did not waive; lack of notice defeated jurisdiction. |
Key Cases Cited
- Sanghi v. Sanghi, 759 So.2d 1250 (Miss. Ct. App. 2000) (Rule 81(d) actions require proper summons; notices alone insufficient)
- Bryant, Inc. v. Walters, 493 So.2d 933 (Miss. 1986) (jurisdiction void when service improper in contempt)
- Duvall v. Duvall, 224 Miss. 546, 80 So.2d 752 (Miss. 1955) (void judgments where process not properly served)
- Clark v. Clark, 43 So.3d 496 (Miss. Ct. App. 2010) (actual notice does not cure defective process)
- Bailey v. Fischer, 946 So.2d 404 (Miss. Ct. App. 2006) (waiver when party initiates, agrees to postponement, and benefits from it)
- Chasez v. Chasez, 957 So.2d 1031 (Miss. Ct. App. 2007) (appearance may waive lack of notice if defendant indicates willingness to proceed)
- Isom v. Jemigan, 840 So.2d 104 (Miss. 2003) (waiver via preparation to defend; lack of readiness differentiates Pearson)
- Dennis v. Dennis, 824 So.2d 604 (Miss. 2002) (waiver shown by ready defense and subpoenaing witnesses)
- Sorrells v. R. & R. Custom Coach Works, Inc., 636 So.2d 668 (Miss. 1994) (jurisdiction principles applicable to Rule 81 contexts)