Johnny Lee STINSON, Appellant,
v.
Ramona Gay (Shelby) STINSON, Appellee.
Court of Appeals of Mississippi.
*1260 John Thomas Lamar, Jr., Senatobia, Attorney for Appellant.
Steven Glen Roberts, Attorney for Appellee.
BEFORE THOMAS, P.J., LEE, AND SOUTHWICK, JJ.
SOUTHWICK, J., for the Court:
¶ 1. Rаmona Stinson filed for divorce. Her husband Johnny Lee Stinson was served with process but failed to answer the complaint or appear at the hearing. Mrs. Stinson was granted a divorce based on adultery. Mr. Stinson's motion for reconsideration, alleging that Mrs. Stinson intentionally kept the hearing date secret from him, was denied. In addition to allegations of procedural defects, Mr. Stinson also alleges error in the child support and property division. We find no error in the chancellor's procedure when the defendant has not filed an answer. However, we do find error that the chancellor did not follow *1261 the mandate to express his findings on issues of equitable distribution and child support. We reverse for further proceedings.
FACTS
¶ 2. Ramona and Johnny Lee Stinson were married on August 20, 1988. Two children were born, Jon Alex Stinson and Cassidy LeeAnn Stinson. At some stage prior to May 1997, Mrs. Stinson filed for divorce on the grounds of adultery and habitual cruel and inhuman treatment. An evidentiary hearing was held in May or June 1997, and the chancellor denied the divorce by order in June. No formal record of those proceedings or copies of pleadings appear, but Mrs. Stinson testified to this effect at a hearing in the present case.
¶ 3. On August 27, 1997, Mrs. Stinson again filed for divorce. Again she charged adultery and inhuman treatment and also sought a divorce bаsed on irreconcilable differences. Process was issued and a return indicated that it was personally served on September 25, 1997. Mr. Stinson never answered the complaint. He later testified that he talked several times with his wife by telephone, attempting to negotiate a resolution. Allegedly unknown to him, she was procеeding with the complaint in court without him.
¶ 4. On December 8, 1997, the date scheduled for uncontested matters in that court, the chancellor heard testimony from Mrs. Stinson and one corroborating witness. Mr. Stinson was not present. The chancellor granted Mrs. Stinson a divorce on the ground of adultery. The chancellor awarded custody of the children to Mrs. Stinson and required Mr. Stinson to pay $1,100 per month in child support, to maintain health insurance coverage on behalf of the children, to procure a life insurance policy on his life naming the children as beneficiaries, to pay the children's private school tuition, and to pay the second mortgage on the marital home. Mrs. Stinson would be responsible for paying the first mortgage; however, she was granted sole possession of the home. She also received one-half of Mr. Stinson's pension/profit sharing plan. Mr. Stinson was ordered to pay Mrs. Stinson's attorney's fees and all court costs.
¶ 5. Mr. Stinson filed a motion to reconsider, arguing thаt he had not been informed of the December 8 hearing date. He also challenged several of the awards, arguing that Mrs. Stinson received benefits that she had not requested in her complaint. A hearing on the motion was held on March 19, 1998, after which the chancellor denied the motion.
DISCUSSION
I. Absence of notice prior to the divorce decree
¶ 6. Mr. Stinson argues that he was entitled to notiсe of the December 8, 1997 hearing. He alleges that due to ongoing negotiations with Mrs. Stinson, he was unaware that she was going forward with the divorce proceedings. Moreover, he claims that she intentionally concealed the hearing date from him and caused him to refrain from seeking legal counsel.
¶ 7. Two separate points are important. First, notice of hearings must be sent to those who have answered complaints. There is no obligation to mail notice of hearings to those who have failed to answer and thus have not made an appearance in the case. Second, failure to answer a complaint, even оne for divorce, allows the trial court to proceed without the defendant. We discuss both.
¶ 8. Mr. Stinson argues that a rule requiring notice of hearings to be sent to parties required that he be mailed that notice. M.R.C.P. 40(b). The rule applies to divorce actions. King v. King,
¶ 9. The threshold issue is whether someone who has been served but who has not appeared either by filing an answer or taking some alternative step, is to receive notice under Rule 40. The second question is whether Rule 40 even applies to this kind of hearing, which was the normal ex parte or uncontested matter day for this judge in this county. Taking the second part first, we find no reason in the language of Rule 40 itself to interpret the regular holding of аn ex parte day to be something that has to be sent as notice to the parties. Rule 40 is talking about the trial docket, which would not in our view include the uncontested motion schedule. The comment to the rule states that the purpose is to assure "that the parties receive appropriate notice at important stages of the process." M.R.C.P. 40 cmt. A regular time for uncontested matters to be heard by a particular judge would not fall under that description. What makes a stage important is that it advances the resolution of a dispute. When there is no dispute, either because one party is not participating in the case or the matter is otherwise agreed, there seems no purpose for mailing notice of such hearings.
¶ 10. Regardless of the applicability of Rule 40 to notice of matters to be taken up at the day for uncontested motions, there is a clearer reason that Mr. Stinson need not have been sent notice. Since he never answered the complaint, he is not in a manner recognized by the rules participating in the action. Someone who has declared by silence that he does not wish to respond to the court need not be sent notice. The rules of procedure give a specific length of time to answer. If the defendant refuses the сase may proceed without him and without asking at each new step whether he has changed his mind about participating.
¶ 11. That this applies even to a hearing such as occurred here is shown by the rule on taking default judgments. We discuss below why the default judgment rules are not directly applicable, but for now we address the normal default. If a party against whom judgment by default is sought has appeared in the suit, three days' notice must be given before the hearing on that judgment. M.R.C.P. 55(b). The comment shows that the negative implication of the rule is correct. "On the other hand, when a defaulting party has failed to appear, thereby manifesting no intention to defend, hе is not entitled to notice of the application for a default judgment under this rule." M.R.C.P. 55 cmt. The hearing will proceed and judgment be entered for a precise amount of damages without notice to the party who has manifested no intent to participate.
¶ 12. We next discuss why the default rules are not directly applicable. One precedent is similar in almost all respects except that the defendant did not argue the notice issue. Mayoza v. Mayoza,
¶ 13. On appeal the suprеme court first noted that a statute prohibits the taking of a default in a divorce. Miss.Code Ann. § 93-5-17 (Rev.1994). It interpreted that statute this way:
By mandate of Rule 81(a)(9), the judgment by default procedure under Rule 55 is supplanted. In practical effect, however, the Rules carry forward preexisting practice. Rule 55(e) provides that judgment by default in аctions for divorce or annulment of marriage may only be granted where `the claimant establishes *1263 his claim or rights to relief by evidence....'
Mayoza,
¶ 14. The defaulting husband in Mayoza "made no showing of newly discovered evidence. He offered no reason why hе could not have appeared at the July 23, 1986 trial and offered these evidentiary defenses." Mayoza,
¶ 15. A defendant's failure to answer does not drag a divorce case to a halt. Instead, the plaintiff must, at a hearing, prove the allegations that support the receipt of a divorce. If that is done, then the chancеllor has authority to grant the divorce despite the absence of the defendant. Rawson v. Buta,
¶ 16. We therefore hold that the chancellor's conducting the hearing without Mr. Stinson is appropriate under the rules. At the hearing, Mrs. Stinson and a corroborating witness testified, a divorce was granted, and various monetary awards were made. Aftеr learning the cost of default, Mr. Stinson took advantage of his right to seek reconsideration. The chancellor did not change his view.
¶ 17. On appeal Mr. Stinson argues that the absence of notice requires the judgment be set aside. He does not argue that he had a defense to the judgment. He did not offer proof undermining the grounds of adultery, nor otherwise indicate that the divorce itself was improvidently granted. He does not allege that insufficient proof was submitted to justify the divorce. We have reviewed the procedural complaint and find no merit to that issue.
II. Relief not specifically requested
¶ 18. Mr. Stinson challenges the chancellor's order requiring that he provide medical insuranсe for his children, that he procure and maintain a life insurance policy on his own life naming his children as beneficiaries, that he be responsible for his children's private school tuition, that he pay the second mortgage on the home, and that Mrs. Stinson receive one-half of his pension/profit sharing plan. Mr. Stinson argues thаt Mrs. Stinson did not specifically request any of this relief in her complaint and is therefore not entitled to it.
¶ 19. In her complaint, Mrs. Stinson requested (1) a divorce; (2) alimony; (3) an increase of child support previously awarded by the court; (4) temporary and permanent use, possession, control and title of the joint residence of the parties; (5) equitable division of the household furnishings, appliances, and all other personal property; (6) attorney's fees and court costs; (7) equitable division of the debts acquired during the marriage; and (8) "such other further and more general relief as the Court deems appropriate."
¶ 20. Submission of the issue of child supрort to a chancellor necessarily entails submission of all matters touching on that subject. Brennan v. Brennan,
*1264 ¶ 21. The awards relating to the childrеn were properly made based on her request for "an increase in child support from the previous order." As for the remaining itemsrequiring Mr. Stinson to assume the second mortgage on the home and awarding Mrs. Stinson one-half his pension/profit sharing planthe court has recognized that under a general prayer, any relief may be granted that is justified by the complaint and which is supported by the evidence, absent surprise or prejudice to the defendant. Smith v. Smith,
¶ 22. Mr. Stinson relies on a procedural rule that a "final judgment shall not be entered for a monetary amount greater than that demanded in the pleadings...." M.R.C.P. 54(c). The meaning of that provision arose in аnother appeal after a chancellor awarded alimony though it was not requested in the complaint. Queen v. Queen,
Because the amount and form of alimony to be awarded incident to a divorce are so much a matter within the discretion of the chancery court, parties and attorneys have long placed the issue before the court by demands expressed as "аn award of alimony in such amount and in such form, payable at such intervals, as the court may deem fair and equitable under the circumstances to be developed at trial," or some such equivalent language. We are not about to hold that Rule 54(c) abrogates this practice absent a far more express statement in the rule.
Id. at 202.
¶ 23. Mrs. Stinson requested alimony in the complaint and that is sufficient.
III. Specific findings of fact
¶ 24. Finally, Mr. Stinson contends that the chancellor failed to make the necessary specific findings of fact in regard to equitable division of the marital property. Ferguson v. Ferguson,
¶ 25. All that is in the chanсellor's final decree relevant to this point are the awards themselves$1100 per month in child support, that Mrs. Stinson is a fit person for custody (which apparently was more thoroughly determined in an earlier action), that Mr. Stinson is to provide health insurance on the children, that the residence is awarded to Mrs. Stinson and the obligations on the two mortgages are divided, that a business is awarded entirely to Mr. Stinson and ½ of a profit sharing and pension plan is awarded to Mrs. Stinson.
¶ 26. Mr. Stinson defaulted and the court was entitled to proceed. However, the court had to make certain that the obligation to explain the rulings was as rigorously followed in a default situаtion as in a normal evidentiary contest between two parties. The statutory guidelines for child support required that we have some basis to determine whether a deviation was occurring.
¶ 27. To distribute marital property equitably, certain guidelines must be followed. After making distribution, chancellors must support their "decisions with findings of fact and conclusions of law for purposes of appellate review." Ferguson,
¶ 28. It is true that when a decree has been entеred, a presumption arises *1265 that sufficient evidence was heard to sustain the decree. Wade v. Wade,
¶ 29. THE JUDGMENT OF THE DESOTO COUNTY CHANCERY COURT GRANTING A DIVORCE IS AFFIRMED. THE JUDGMENT IS IN ALL OTHER RESPECTS REVERSED AND REMANDED FOR FURTHER PROCEEDINGS. COSTS OF THIS APPEAL ARE TAXED EQUALLY TO THE PARTIES.
McMILLIN, C.J., KING, P.J., BRIDGES, COLEMAN, DIAZ, IRVING, LEE, PAYNE, AND THOMAS, JJ., CONCUR.