Turner v. Turner
2011 Miss. App. LEXIS 674
Miss. Ct. App.2011Background
- Chancery Court allowed Michael's divorce attorney to withdraw and set trial for December 8, 2009; Michael did not appear at the December 8 hearing but Jane was awarded a divorce, custody, attorney's fees, and property; Michael moved to set aside the judgment arguing lack of notice under Rule 5; the chancellor held service of the November 12 order on Michael's withdrawing attorney satisfied Rule 5(b); on appeal, the court held Michael was no longer represented and could not be served via his former attorney; the divorce judgment was void for lack of notice and all accompanying awards were reversed and remanded.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the December 8, 2009 judgment was void for lack of notice under Rule 5(b). | Turner contends no proper notice was provided. | Turner argues notice was valid via counsel. | Yes, void for lack of notice. |
| Whether service on Michael's withdrawing attorney sufficed under Rule 5(b). | Service should have been to Turner personally or his new counsel. | Smith remained counsel until notice was given; service adequate. | No, service on withdrawing attorney was insufficient. |
| Whether the void judgment requires reversal of custody, property, and attorney's fees awards. | All awards depend on the void judgment. | Some awards may stand independent of void judgment. | All accompanying awards reversed and remanded. |
| Whether due-process concerns require different notice remedies in attorney withdrawal circumstances. | Notice must be given to client; risk of due-process failure. | Court may rely on withdrawal order and existing notices. | Remand for proper notice and proceedings. |
Key Cases Cited
- Peterson v. Peterson, 797 So.2d 876 (Miss. 2001) (voidity when due process is violated by lack of notice)
- McClain v. White, 738 So.2d 306 (Miss.Ct.App.1999) (service to attorney at withdrawal governs Rule 5(b) when attorney remains of record)
- Duckworth v. Strite, 748 So.2d 794 (Miss.Ct.App.1999) (service upon not represented party valid; later attorney not yet appeared)
- Johnson v. Weston Lumber & Bldg. Supply Co., 566 So.2d 466 (Miss.1990) (due-process right to notice in court proceedings)
- Fairchild v. General Motors Acceptance Corp., 254 Miss. 261, 179 So.2d 185 (Miss.1965) (withdrawal cannot deprive client of substantial rights when notice is lacking)
- Polk v. Jones, 20 So.3d 710 (Miss.Ct.App.2009) (notice theory when attorney ceased to represent)
- Morrison v. Miss. Dep't of Human Servs., 863 So.2d 948 (Miss.2004) (due-process concerns in notice)
- Clark v. Clark, 43 So.3d 496 (Miss.Ct.App.2010) (void judgment standard when due process violated)
- Lauro v. Lauro, 847 So.2d 843 (Miss.2003) (reversal of equitable distribution when Ferguson findings are missing)