Roberts v. Lopez
148 So. 3d 393
Miss. Ct. App.2014Background
- David A. Roberts previously had sole physical custody of his son C.M.R.; the chancery court modified to joint physical custody with Liza Lopez; Roberts appeals asserting multiple errors and the court recast them into six issues; Liza Lopez pursued a Rule 81 action to set aside orders and, later, a custody-modification alternative; hearings in Aug–Sept 2012 led to a judgment setting aside prior orders, appointing a GAL, and awarding temporary joint custody; the final judgment in May 2013 awarded joint custody; the Mississippi Court of Appeals affirmed the chancery court’s decision.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Dismissal of amended complaint service under Rule 4(h) vs Rule 81 | Liza failed to timely serve under Rule 4(h) | Rule 81 governs custody matters; service timely under Rule 81 | Rule 81 governs; service defect waived by appearance; issue meritless |
| Fraud-based set-aside timing under Rule 60(b) | Fraud supported timely relief; six-month limit should not bar relief | Rule 60(b)(1) requires timely motion; fraud on the court justifies relief | Equity permits consideration under Rule 60(b)(6) even beyond six months; affirmed set-aside |
| Due process considerations in final custody | Chancery court erred by not providing full hearing | Temporary order framework allowed final disposition after in-chambers discussion | No due process violation; sufficient opportunity to address custody matters |
| Albright analysis and standard of review | Chancery court failed proper Albright analysis | Albright factors properly considered; no error | Albright analysis applied correctly; findings supported by substantial evidence |
| Final custody award and related issues (costs, daycare, holidays) | Final judgment omitted daycare-cost allocation; no holiday schedule | Waived or not error; joint custody appropriate; Fields not analogous | Final order affirmed; daycare issue waived; no abuse of discretion on holiday schedule |
Key Cases Cited
- Barber v. Barber, 608 So.2d 1338 (Miss.1992) (special review when appellee does not file brief)
- Andrews v. Williams, 723 So.2d 1175 (Miss.Ct.App.1998) (standard of review for chancery custody findings)
- Briney v. United States Fidelity & Guaranty Co., 714 So.2d 962 (Miss.1998) (fraud on the court; time limits may not apply to relief from judgment)
- Pulliam v. Smith, 872 So.2d 790 (Miss.Ct.App.2004) (Rule 60(b) motion standards; burden of proof)
- Fields v. Fields, 830 So.2d 1266 (Miss.Ct.App.2002) (analogy to holiday scheduling in custody cases)