IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO. 2017-CA-01374-COA NATASHA LEIGH HILTON APPELLANT

v. CHRISTOPHER JAMES HARVEY APPELLEE DATE OF JUDGMENT: 08/25/2017 TRIAL JUDGE: HON. JOHN S. GRANT III COURT FROM W HICH APPEALED: RANKIN COUNTY CHANCERY COURT ATTORNEY FOR APPELLANT: MICHAEL CHAD MOORE ATTORNEY FOR APPELLEE: JANICE T. JACKSON NATURE OF THE CASE: CIVIL - DOMESTIC RELATIONS DISPOSITION: AFFIRMED - 11/05/2019 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE J. WILSON, P.J., TINDELL AND LAWRENCE, JJ. TINDELL, J., FOR THE COURT: ¶1. On Decem

ber 31, 2012, the Rankin County Chancery Court granted Natasha Hilton and Chris Harvey an irreconcilable-dif f erences divorce. On May 20, 2016, Natasha f iled a petition to require Chris t o sign a passport a pplication f

or their m inor c hildren to be able to leave the United States with her on vacation. Chris f i led his answer to N atasha’s petition on Septem ber 20, 2016, a s well as a counter-petition f or contem pt, m o dif ication o f custody , and attorney ’s f

ees. The c h a n c e l l or ultim ately m odif ied the couple’s custody arrangem ent in f avor o f Chri s , h e l d N a t a sha in contem pt of court, and awarded attorney ’s f ees to Chris. Natasha n ow appeals t o this Court, arguing that Chris f ailed t o p roperly serve her with a copy of the Mississippi Rule of Civi l P r o c e d u r e 81 sum m ons f or h is counter-petition until af terthe 120-day deadline, in violation of

Mississippi Rule of

Civil Procedure 4. ¶2. W e f

ind t hat this c ase, as a dom estic-relations m atter, is governed b y Rule 81 rather than R ule 4. Because Rule 8 1 h a s no 120-day deadline, we also f i nd t hat service was not def ective upon Natasha. W e theref ore af f irm the chancellor’s judgm ent. FACTS AND PROCEDURAL HISTORY ¶3. Natasha an d C h r i s were m arried on June 11, 1984, and had two children f rom the

m arriage. On Decem

ber 31, 2 0 1 2 , t h e chancellor granted Natasha a nd Chris an irreconcilable-dif

f erences divorce. In his f inal judgm ent of divorce, the chancellor ref erenced the couple’s m a rital-dissolution agreem ent, wherein t he couple agreed upon and

were a w a r d e d j o i nt legal custody of the two children. A s pecial c ustody provision was included in the agreem ent, a llowing Natasha to have m id-week visits with one or m ore of the children while they

were in Chris’s custody

. ¶4. O n M a y 2 0 , 2 0 16, Natasha f iled a petition to require Chris t o s i g n a p a s s p o r t application f

or their two children, which would allow her t o take t he c hildren on vacation out of the country

. On May 24, 2 0 16, Natasha issued a s um m ons f or the petition to b e heard on June 27, 2 016. Chri s claim s t hat he was never served f o r this hearing, and no proof of service exis t s i n t he record. Chris’s counsel, h owever, entered an appearance on June 10, 2016. At som e point, the hearing was continued f rom June 27, 2016, to Septem ber 29, 2016. Natas h a c laim s that this continuance was agreed upon by the p arties, b ut nothing in the record conf

i rm s this assertion. ¶5. Natasha issued a new sum m ons f or the Septem

ber 29 hearing on August 26, 2016, and Chris was served with the sum m ons o n August 2 7 , 2 0 1 6

. O n Septem ber 20, 2016, Chris
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iled a n answer to Natasha’s petition, as w ell as a counter-petition f or c ontem pt, m odif ication of custody , and attorney ’s f ees. That sam e day Chris f i l e d a mo t i o n to continue the S e p t e m b e r 2 9 hearing. The parties ultim ately agreed upon a hearing date of January 30, 2017. Natasha issued another sum m ons upon Chris f or the new hearing date on Novem ber 17, 2016, and Chris was properly served with the sum m ons on the sam e day

. ¶6. On Decem

ber 5 , 2016, Chris issued a sum m ons f o r h i s c o u n t e r - p e tition, but the

sum m ons was not served upon Natasha until January 24, 2017. The parties heavily dispute the reason f

or this delay

. Natasha claim s t hat Chris “didn’t bother to have [ her] served with the Rule 81 sum m ons until January 24, 2017,” which was 126 day s a f ter he f iled his counterpetition. Chris, however, claim s that “Natasha purposely avoided service o f process until January 24, 2017,” m aking the J anuary 30 hearing untim ely

. In support of his claim , Chris subm itted to t he chancellor an af f idavit signed by h is process s erver, Ty ler Miller, wherein Miller described his ef

f orts to s erve Natasha and Natasha’s attem pts to avoi d s e r v i c e of
process. ¶7. The parties agreed u p on one f inal continuance of the cas e t o J u ly 18, 2017. Chris issued a second s um m ons f or the July 18 hearin g , which was served upon Natasha on February 28, 2 017. C hris claim s that he issued this s econd sum m ons to sa t i s f y persistent

com plaints f r om Natasha’s attorney a n d to avoid consequences of any potential

m isunderstanding. ¶8. At the h earing on July 18, 2017, Natasha argued that b ecause C hris’s counter-petition

was f i led on Septem

ber 20, 2016, he was required by Rule 4(h) to serve Natasha with process within 120 day s of f

iling t he c ounter-petition. Natasha f u rther argued that, because Chris
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ailed to do so, the chancellor lacked jurisdiction to hear the m atter, a n d theref ore, the case should b e dism issed without prejudic e . The chancellor disagreed, f inding t hat (1) any def

ects in service of process on the p a r t o f N a t a s h a or Chris were waived b y the parties signing

m ultiple agreed o rders to continue t he case, a nd (2) “because o f t he c o n f l i c t a n d all [ the parties’] dif

f erent pleadings,” C hris was granted an e x t e n sion to serve N atasha nunc pro tunc 1 to cure any

rem a ining def

e cts in service of

process. ¶9. The chancellor proceeded to hear all m atters relating to Natasha’s petition to require Chris t o sign the c hildren’s passport applications, which i ncluded Chr is’s counter-petition f or contem

p t, m odif ication of custody , and att o r n ey ’s f e es. On August 25, 2 017, the chancellor e nt e red his f

inal “judgm ent on the pleadings and m otions f iled since May 20, 2016.” In his f

inal judgm e nt, the chancellor granted Chris’s counter- p etition, f inding that (1) Natasha was in contem pt of the m orals clause contained in the couple’s f inal judgm ent of divorce; (2) the couple’s c ustody arrangem ents should be m odif ied to the extent t ha t Natasha’s m id-week visitations were suspended; and ( 3) Natasha was required t o pay $2,000 in a t t o r n e y ’ s f

ees to Chris f

or f rivolous claim s she brought b ef ore the court. Aggrieved, Natasha now appeals. STANDARD OF REVIEW ¶10. This Court does not disturb a chancellor’s f indings of f

acts “unless the chancellor’s decision i s m anif

estly wrong or u nsupported by substantial e v idence.” Bougard v. Bougard ,

1 N u n c p ro tu n c m ean s “[ h ] a v in g retro activ e leg al e f f e c t t h r o u g h [ t h e ] co u rt’s i n h e r e n t p o w er.” B lack ’s L a w D ictio n ary , 1 2 3 7 (1 0 th ed

. 2 0 1 4 ). T h at is, th e co u rt m a y en ter a j u d g m en t n o w w h ich h as t h e sam e leg al e f f ect as if th e j u d g m en t h a d b een m ad e at th e ap p ro p riate tim e p rio r t o th e j u d g m en t. I d

. (citin g G eo rg e L

. P h illip s, A n E x p o sitio n o f th e P rin cip les o

f P lea d in g

U n d er th e C o d

es o f C ivil P ro ced

u r e § 5 2 9 , at 5 6 0 (1 8 9 6 )). 4991 S o. 2d 646, 648 (¶12) (Miss. Ct. App. 2008). “However, ‘[ w]hen reviewing questions

concerning j urisdiction, this court em ploy s a d e novo r eview.’” C lark v. Clark , 43 So. 3d 496, 499 (¶9) (Miss. Ct. App. 2 0 10) (quoting Sanghi v. Sanghi , 759 So. 2d 1250, 1252 (¶7) (Miss. 2000)). Jurisdictional questions m ay include service of

process. Id

. at (¶11). ANALYSIS ¶11. On appeal, Natasha f irst argues that Chris f

ailed to p roperly s erve her w ith a Rule 81

sum m ons related to his counter-petition f or contem p t, m odif ica t i o n , a nd a ttorney ’s f

ees in violation of Rule 4 (h). As such, Natasha contends that t he chancellor lacked jurisdiction to
enter his f inal judgm ent against her. Natasha f urther argues t hat the chancellor erroneously granted an e x t ension to serve process in this case even though C hris f ailed to show good

cause as to why he did n ot serve Natasha w ithin 120 d ay s. C hris argues, h owever, that Rule 81, r ather than R

ule 4(h), governs se r v i c e o f p r o cess in this m a tter and that the 120-day deadline is inapplicable here. Theref o re, we m ust f irst address whether Rule 4(h) or Rule 81 applies to the f

o regoing case. ¶12. Mississippi Rule of Civil Procedure 4(h) states: If a service of the sum m o n s a n d c o mplaint is not m ade upon a def endant within 120 days af

ter the f iling of the com

plaint and the party o n whose b ehalf such service was required cannot show good cause why such service was not m ade within that period, the action shall be dism i s s e d a s t o that def endant without prejudice upon the court’s o wn initiative with notice to s uch party or upon m otion. (Em phasis added). Rule 81(a)(9), however, states in pertinent part: Applicability i n General. T hese rules apply to all c ivil proce e d ings but are subject to limited appli c a b i l ity in the f ollowing actions which are generally governed by

statutory procedures, . .

. [ including] Title 93 of the Mississippi Code of 1972.
5(Em

phasis added). Title 93 of the Mississippi C ode covers a ll m atters r elated to dom estic relations, including m odif ications of custod y . R o b e rts v. L opez , 1 48 So. 3 d 3 93, 398 (¶9) (Miss. C t. App. 2014). Rule 81(d) states that “[ t]he special rules o f procedure set f orth in this paragraph

. . . s hall c ontrol to t he e xtent they m ay be i n conf l ict with any other provisions of

t h e s e r u l e s . ” U n d e r R

u l e 8 1 (d)(2), m odif

ication-of -custody -m atters are t riable within “7 d a y s af ter com pletion of service of process i n any m anner o ther t han by publication.” R ule 81(d), however, places no 120-day d eadline f or service of p rocess, as i n R u l e 4(h). R ather, Rule 81(d)(5) states only

that
upon the f

iling of a ny action or m a tter listed in subparagraphs (1) and (2) above, summons shall i

ssue comma n d i n g the defendant or respondent to appear and defend at a time and p lace, either in term o r vacation, at which the same shall be heard

. Said tim e a nd place shall be set by special o rder, general order or r ule o f the c ourt. If such action or m a tter is not heard on the day set f or hearing, it m ay by order signed on that day be continued t o a later day f or hearing witho u t a d ditional sum m ons o n the d ef e n dant o r respondent. The court m ay by order or r

u le authorize its clerk to s et such actions or m atters f or original hearing and to continue the sam e f or hearing on a later date. (Em phasis added). ¶13. T h i s C o u r t s p e c if i cally addressed the applicability of Rule 4(h) and Rul e 8 1 t o

m odif ication-of -custody m atters in Roberts

. In Roberts , a m other f iled a com plaint f or f raud against the f

a ther of her c hild af

ter the f ather allegedly f

orged her signature on a joint

com plaint f or m odif ication of custody , which gave him sole custody of the child. Roberts , 148 So. 3d at 397 (¶6). The m other later f iled an am ended com

plaint, which asked the chancellor to set aside all previous orders associated with th e j o i n t c o mplaint or, in the alternative, to m odif

y custody

. Id

. The m other served the f a ther with a Rule 81 sum m ons

on the am ended com

plaint, ordering his appearance f or a hearing on the m atter. Id

. Af ter 6a hearing, the chancellor m odif ied the couple’s custody arrangem ent, giving the m other and f ather joint custody of the child. Id

. at (¶7). The f ather appealed to this Court, arguing that the m other f

ailed to serve him

with t he am ended c om

plaint within 120 day s in violation of Rule 4(h). Id . at 398 (¶9). ¶14. In our analy sis, this Court cited the Rule 81 procedur e s me n t i o n e d a b o v e as they related to the m o ther’s custody -m o dif ication m atters. Id

. at (¶¶9-10). This Court f ound that

as a dom estic-relations m atter Rule 81 controlled service of process in the m other’s case, and
not Rule 4(h). Id . at (¶10). W e f o und specif

ically that because the f

ather had been served

w i th a Rule 81 s u m m o ns com m anding him to appear bef ore the chancellor on the courtordered hearing d a te, “it [ was] of no m om ent” t hat the m other served the f ather w ith her Rule 81 sum m ons m ore than 120-day s af ter f iling her com

plaint. I d

. W e ultim a tely af

f irm ed the chancellor’s m odif

ication of custody in this case. Id . at 402-03 (¶25). ¶15. Com

p aring t he f

acts in Roberts with the f

a cts bef ore t his Court t oday , we are obliged
to apply the sam e holding to the case at hand. Sim ilar to the m other in Roberts , Chris sought

m odif ication of his custody a rrangem ent with Natasha, and theref ore, the procedures in Rule 4(h) d o n ot app l y . C h r is f iled t he counter-petition on Septem b er 20, 2016 and served Natasha with a R u l e 8 1 s u mmo ns on January 24, 2 017, in com pliance with Rule 81(d)(5). Natasha p oints out that Chris’s R ule 81 sum m o ns noticed the h earing f or January 30, 2017, which was six day s af

ter she had been served as o pposed t o seven day s a s r equired by Rule 81(d)(2). However, in accordance with Rule 8 1(d)(5), t he chancellor properly ordered the hearing be continued to July 18, 2017, upon agreem ent of the parties. ¶16. W e theref

o re f ind t hat Chris ef

f ectively served process upon Natasha in c o m pliance

7w i t h R u l e 8 1. Because we f ind service to be p roper in t his case, we need not address Natasha’s rem aining argum ents regarding good cause a nd dism i ssal under Rule 4. W e f urther f ind that t he chancellor com m itted no error in hearing and r u l i n g u p o n Chris’s counter-petition. CONCLUSION ¶17. Because R

ule 4(h) does n ot apply in c ustody -m odif ication m atters, such as this case, Chris properly served Natasha in accordance with the procedures m a ndated by Rule 81. W e theref ore f ind that the c hancellor r i g h t f u l l y possessed j urisdiction over the m atter, and we af f irm his f inal judgm e nt. ¶18. AFFIRMED. BARNES, C.J., C ARLTON AND J. WILSON, P.JJ., GREENLEE, WESTBROOKS, McDONALD, LAWRENCE, McCARTY AND C . W I L SON, JJ., CONCUR.

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