Bolivar v. Bolivar

378 So.3d 433

Nathan BOLIVAR, Appellant

v.Carolyn BOLIVAR, Appellee

NO. 2022-CA-00640-COA

Court of Appeals of Mississippi.

01/09/2024

JONES COUNTY CHANCERY COURT, SECOND JUDICIAL DISTRICT, HON. FRANKLIN C. McKENZIE JR., JUDGE

ATTORNEY FOR APPELLANT: RISHER GRANTHAM CAVES, Laurel

ATTORNEY FOR APPELLEE: S. CHRISTOPHER FARRIS, Hattiesburg

BEFORE BARNES, C.J., GREENLEE AND EMFINGER, JJ.

BARNES, C.J., FOR THE COURT:

¶1. In the midst of highly contentious divorce proceedings between the parties, Carolyn Bolivar filed a fourth motion for a citation of contempt against Nathan Bolivar, citing his repeated refusal to pay court-ordered temporary support. Nathan challenged the jurisdiction of the Jones County Chancery Court to address the contempt motion because Carolyn failed to serve him with a summons under Rule 81 of the Mississippi Rules of Civil Procedure. The chancery court overruled Nathan's objection to lack of jurisdiction and granted Carolyn's motion for contempt.¹ The court, denied Nathan’s subsequent motion to amend the judgment, concluding that because the case was pending, and the contempt motion sought to enforce a temporary order, a Rule 81 summons was not required.

¶2. Arguing that the caselaw on this issue is "somewhat unclear," Nathan asks this Court "to definitively clarify the question of whether or not Rule 81 … requires a litigant to issue and serve a Rule 81 summons as a prerequisite for a contempt hearing in the midst of a pending divorce case." Upon review of the Mississippi Rules of Civil Procedure and caselaw, we hold that Rule 81(d)(5) requires the issuance of a summons for a contempt proceeding regardless of the status of the litigation. While this requirement may be waived, that is not the case before us.² We therefore conclude that Carolyn was required to have a new Rule 81 summons issued for her fourth contempt motion, and we vacate the chancery court’s judgment.

FACTS AND PROCEDURAL HISTORY

¶3. On April 15, 2021, Carolyn Bolivar filed a complaint for divorce against her husband Nathan Bolivar "on the ground[ ] of uncondoned adultery." In the complaint, Carolyn requested a temporary hearing to address issues of support and visitation, and she sought a domestic protection order prohibiting Nathan from contacting her. A Rule 81 summons (for a hearing on May 10) was issued to Nathan. On May 10, 2021, Nathan filed a response and answer, summarily denying the allegations in the complaint.

¶4. On May 20, 2021, the chancellor³ entered an agreed order continuing the temporary hearing until June 16, 2021, which noted that "all process [was] preserved on the Defendant, Nathan Bolivar, until the hearing of this matter." On June 18, 2021, the hearing was again reset by agreement of the parties for July 14. A second Rule 81 summons was issued to Nathan (for the July 14 hearing) on June 25, 2021.

¶5. Nathan filed a counterclaim for divorce and temporary relief on July 13, 2021, seeking a divorce "on the grounds of adultery and habitual cruel and inhuman[ ] treatment or[,] in the alternative[,] a divorce on Irreconcilable Differences." Nathan attended the scheduled hearing on July 14 with his attorney.⁴

¶6. The chancery court entered a temporary order on July 19, 2021, granting Carolyn "primary physical custody" of the children and possession of the marital home. The court ordered Nathan to pay $1,700 per month in child support and $800 per month in spousal support. The chancery court’s order also noted that Nathan "came to Court with no 8.05 financial statement and the only evidence as far as income was presented by [Carolyn] in the form of financial documents she had retrieved from some source."

First Contempt Motion

¶7. Two days later, on July 21, 2021, Carolyn filed an amended complaint for divorce, which included a request for a citation of contempt against Nathan for his failure to allow her and the children to use the marital home in accordance with the court’s temporary order. A Rule 81 summons was also issued to Nathan (as well as his parents) for a hearing on August 2, 2021. However, the sheriff’s return of service revealed that despite "numerous attempts," he was unable to serve. Nathan with the Rule 81 summons and the amended complaint.

Second Contempt Motion

¶8. Carolyn filed a second contempt motion on August 13, 2021, stating that Nathan had not paid the court-ordered child support, spousal support, and expenses for the marital home. The motion noted that Nathan had "stood before the Court at the first contempt hearing and said he had no money"; so Carolyn attached documentation showing Nathan had received income "through June of 2021."

¶9. Nathan filed a motion to modify the temporary order on September 27, 2021, claiming that he did "not have the financial means available to him" to pay the child support and spousal support the chancery court had ordered. After a hearing, the chancery court entered a judgment finding Nathan in "wilful obstinate contempt" of the court’s temporary order and ordered him to pay three months’ arrearage of support payments, totaling $7,500. The court further noted that Nathan had "appeared now for the third time without an 8.05 financial affidavit," see UCCR 8.05, and had "come to court [with] no documentation nor witnesses" to demonstrate his inability to pay. Nathan was ordered to be incarcerated until he purged himself of contempt.

Third Contempt Motion

¶10. Carolyn filed a third motion for contempt against Nathan on November 23, 2021, stating that Nathan was in arrears for two months of child and spousal support. The motion also requested the chancery court to order the marital home be sold "and the proceeds split." On January 7, 2022, Carolyn filed an emergency motion for a restraining/domestic protection order, alleging that Nathan had cut off the electricity to the marital home and blocked her access to the marital home. She also expressed concern for "her safety and that of her children" after a vehicle inspection showed her car's brake line had been cut, and an old cell phone had been attached under the bumper for tracking purposes.

¶11. Three days later, Nathan filed a motion for a continuance of the scheduled January 13, 2022 hearing.⁵ On January 14, the court entered an emergency domestic protection order, prohibiting either party from contacting or coming within 100 yards of each other (unless for visitation exchange purposes). Nathan was ordered to pay for Carolyn's car repair.

¶12. On January 28, 2022, Nathan filed a motion seeking to modify the court’s temporary order and a motion for temporary relief, requesting a downward modification of his child-and-spousal-support obligations based on a loss of income.⁶ Nathan also sought exclusive use and possession of the marital home.

¶13. A hearing was held on February 7, 2022, on Carolyn's third motion for contempt and Nathan's motion to modify the temporary order and for temporary relief. On February 17, the chancery court granted Carolyn's contempt motion and awarded her a judgment of $16,031.21.⁷ The court denied Nathan's motion. An agreed order setting trial for July 2022 was also entered on February 24, 2022.

Fourth Contempt Motion

¶14. Carolyn filed a "Fourth Motion for Citation of Contempt of the Temporary Order and Subsequent Contempt Orders" on March 24, 2022. The motion alleged that Nathan had quit working to prevent the garnishment of his wages to pay the court-ordered temporary support, as ordered in the chancellor's February 2022 contempt order. Nathan filed a "Response Objecting to Jurisdiction," asserting that Carolyn "ha[d] failed to follow the jurisdictional prerequisites for bringing a contempt action" because she "failed to issue a new Rule 81 summons and cause said summons to be served upon Nathan at least seven days prior to the hearing date." He asked the chancery court to deny Carolyn relief "until she issues and serves upon Nathan a Rule 81 summons apprising him of her contempt action."

¶15. A hearing was held on April 4, 2022. Nathan appeared at the hearing with his newly hired attorney. The chancellor overruled Nathan's motion objecting to jurisdiction, distinguishing the notice requirements between a contempt action "based on a final judgment versus an order in ongoing litigation." On May 4, 2022, the chancery court entered a final judgment, finding Nathan "in willful obstinate contempt of this Court’s Temporary Order by his refusal to pay the child support, spousal support and repairs to Plaintiff’s vehicle." The court ordered Nathan to be incarcerated "every weekend … until he pays in full the prior Judgment of $16,031.21, as well as any accrued" support payments and attorney’s fees.

¶16. Nathan filed a motion to alter or amend the judgment,⁸ again challenging the chancery court’s jurisdiction based on Carolyn’s failure to serve a Rule 81 summons. At the June 17, 2022 hearing, Nathan’s attorney argued that contempt actions are "held to be separate actions requiring new and special summons under Rule 81." The chancery court disagreed and denied the motion, finding "Carolyn’s [Mississippi] Rule [of Civil Procedure] 5 notice of her contempt motion was sufficient to apprise Nathan of her claim against him."

¶17. Nathan appeals from the chancery court’s final judgment and its order denying his Rule 59 motion. He contends that this Court should vacate the May 2022 judgment finding him in contempt because Carolyn failed to have a Rule 81 summons issued and serve Nathan with the new Rule 81 summons.⁹ Carolyn argues that she was not required to serve a Rule 81 summons "for a motion for citation of contempt of a temporary order." She also asserts that Nathan "received sufficient notice of the contempt hearing pursuant to Rule 5 [of the Mississippi Rules of Civil Procedure]."

STANDARD OF REVIEW

[1] ¶18. "This Court’s scope of review in domestic-relations matters, is strictly limited." Curry v. Frazier, 119 So. 3d 362, 365 (¶8) (Miss. Ct. App. 2013) (quoting Pritchard v. Pritchard,...