Gillen v. Gillen

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GREGORY GILLEN APPELLANT v. TAMMY GILLEN APPELLEE

No. 2021-CA-00837-COA

Court of Appeals of Mississippi

August 8, 2023

DATE OF JUDGMENT: 07/01/2021

LAUDERDALE COUNTY CHANCERY COURT, HON. LAWRENCE PRIMEAUX TRIAL JUDGE:

ATTORNEY FOR APPELLANT: MATTHEW ALLEN BALDRIDGE.

ATTORNEYS FOR APPELLEE: JOHN S. GRANT IV, JOHN S. GRANT III BROOKE TRUSTY GRANT

BEFORE BARNES, C.J., WESTBROOKS AND McDONALD, JJ.

BARNES, C.J.

¶1. Tammy and Gregory Gillen (Greg) were married for fifteen years. Greg was an employee of his wife's business, J & J Tire & Muffler Inc. (J&J), and had check-signing authority. In August 2018, Greg wrote two checks to himself from the J&J checking account, totaling $350,000, and he deposited those checks into the couple's joint savings account. Greg then wired $1,075,000 to his father Kieth Gillen, moved to Missouri the next day without Tammy's knowledge, and never returned to the marital residence.

¶2. Tammy filed a complaint for divorce in which she requested a temporary restraining order that the wired funds be returned. She also filed a motion for other temporary relief, requesting that Greg be enjoined from dissipating marital assets. A hearing was held in April 2019. After Greg revealed to the chancellor that he had approximately $800,000 in cash stashed in an undisclosed location, the chancellor peremptorily issued a temporary order requiring Greg to deposit $1,000,000 into the court's registry or face financial penalties.

¶3. After Greg failed to deposit any funds, Tammy filed a contempt motion. The chancellor subsequently found Greg in civil and criminal contempt for failing to comply with the court's order. Greg filed a motion for reconsideration or, alternatively, to amend the judgment, as well as an emergency motion to set aside the temporary order and contempt order, which the chancellor denied. Greg appeals, alleging various claims of error related to the chancellor's temporary order and contempt order.

¶4. In his brief, Greg raises issues of subject matter jurisdiction and personal jurisdiction (related to a Rule 81 summons).^[1] He also claims that the contempt order violated his constitutional right against illegal incarceration and excessive fines and that the court erred in denying his emergency motion to set aside the orders.

¶5. Because Greg has absented himself from the chancery court's jurisdiction to avoid incarceration for contempt, we dismiss Greg's appeal under the "fugitive dismissal rule." Alternatively, we would find Greg's claims are waived or without merit.

FACTS AND PROCEDURAL HISTORY

¶6. Tammy has owned J&J for approximately thirty years. She married Greg in 2003. Greg was a J&J employee and signatory on the company's checking account. In late August 2018, Greg transferred $500,000 from J&J's savings account to its checking account. He then wrote two checks to himself from the J&J checking account-one for $100,000 and one for $250,000-and he deposited those checks into the couple's joint personal savings account. On August 31, 2018, Greg wired $1,075,000 from his and Tammy's joint savings account to his father, Kieth, in Missouri. Greg abandoned the couple's marital residence on the following day and moved to Missouri.

¶7. On December 12, 2018, Tammy filed for a divorce from Greg based on habitual cruel and inhuman treatment, adultery, and irreconcilable differences. She named Kieth as a party to the suit. In the complaint, Tammy requested a temporary restraining order and a preliminary and permanent injunction against Greg and Kieth to prevent them from spending the wired funds. In addition, Tammy filed a separate motion for temporary relief requesting, in part, that the chancellor enjoin Greg from dissipating any marital property "and that any transfers or conveyances of marital assets by the Defendants within the last twelve months be declared null and void with the assets returned into the marital asset estate."

¶8. On March 31, 2019, Greg and Kieth were served with a Rule 4 summons^[2] and a Rule 81 summons. The Rule 81 summons notified the defendants that the "Motion for Temporary Restraining Order and Preliminary and Permanent Injunction" would be heard on April 18, 2019. The hearing was held, however, on Tammy's motion for temporary relief. Both Greg and Kieth were present at this hearing. Attorney Stephen Wilson, representing Greg and Kieth, requested a continuance because he had been only recently hired. Wilson said that Greg "would have no issue as to an injunction against dissipating, gifting, disposing of any assets that is in his possession other than any reasonable living expenses." The attorney explained that he did not "want to tie [Greg's] assets up so he can't live" because Greg was unemployed. The chancellor found this argument "suspicious." Although Greg indicated that he was willing to post $500,000 in the chancery court's registry, Tammy's attorney was "not agreeable" to that offer, noting "[T]hat's an incredible amount of money for someone to live on over the next year or so." The chancellor overruled the motion for a continuance, and the hearing proceeded.

¶9. When asked if Greg had wired him $1,075,000 in August 2018, Kieth replied, "I don't remember the exact amount, but it sounds right." Kieth admitted that he immediately transferred that money to Greg at Greg's behest. He noted that Greg currently lived in a home Kieth owned.

¶10. Greg testified that he left Mississippi on the morning of September 1, 2018, without notifying Tammy. He admitted that he had transferred approximately $500,000 from the J&J savings account to the company's checking account. Greg also confessed to transferring $1,075,000 to his father from the joint personal account with Tammy, leaving only about $8,000 in that account. Greg then informed the chancellor that he had "somewhere in the neighborhood of" $700,000 to $800,000 in cash in an "undisclosed location." He said, "I'm afraid if I tell the exact location, people rob you, mug you, steal and take it." Concerned that these funds-"which may be marital funds subject to equitable distribution"-were not secure, the chancellor immediately ordered Greg to deposit $1,000,000 into the court's registry by Monday, April 22, 2019. "[F]or every day" the money was not deposited, there would be a $1,000 fine payable to the chancery court. Greg's attorney, Wilson, argued that Greg did not have a million dollars, but the chancellor did not "believe it." Greg filed a motion for a new trial or amendment on the same day.

¶11. Greg filed a petition for permission to appeal from an interlocutory order with the Mississippi Supreme Court on April 23, 2019; it was denied. Order, Gillen v. Gillen, 2019-M-00712-SCT (Miss. Aug. 13, 2019). Although Wilson filed the petition, J. Stewart Parrish entered a notice of appearance as an attorney for both Greg and Kieth the following day.^[3]On behalf of Kieth, Parrish filed a motion to dismiss on April 25, 2019, asserting that he is not a party to the marriage and that the court had "no personal jurisdiction over him."

¶12. Greg never deposited any funds into the court's registry; so Tammy filed a motion for contempt on May 29, 2019. A contempt hearing was scheduled for June 5, 2019, but the court entered an order on that date resetting the matter for July 24 due to Greg's pending petition for an interlocutory appeal. Parrish signed the order "for Kieth Gillen," but the order noted that neither Greg "nor [his] attorney [were] present."

¶13. On July 10, 2019, Greg filed an answer to the complaint for divorce.^[4] The July 24 hearing was reset for August 21, 2019, again due to the pending petition for an interlocutory appeal. The chancery court's status order noted that Parrish was then representing Greg as his attorney. On August 21, 2019, the chancery court denied the defendants' April 22, 2019 motion for a new trial or amendment of judgment, a stay of judgment, and permission to appeal the judgment. On August 21, 2019, the court again reset the hearing on Tammy's motion for temporary relief and motion for contempt, as well as Kieth's motion to dismiss for October 22, 2019. Parrish signed the status order, which also noted that "co-counsel Stephen Wilson failed to appear."

¶14. Parrish filed a motion to withdraw as counsel on September 24, 2019. On October 22, the chancellor reset the motions hearing-this time for October 29. The order noted that the "defendants did not appear, called three times, the remaining counsel [Wilson] has filed a renewed motion to withdraw."^[5]

¶15. Neither Greg nor Kieth appeared at the contempt hearing. There is also no indication that any counsel for the defendants made an appearance on their behalf. Because "the defendants ha[d] failed and neglected to deposit the ordered sum into the registry of the court," the chancellor entered an order finding Greg and Kieth in civil and criminal contempt. For the civil contempt, Greg and Kieth were ordered to be held in custody "until they purge themselves of contempt." For the criminal contempt, they were ordered to serve a thirty-day sentence concurrently with the civil contempt incarceration. The chancellor further granted Tammy a judgment for her attorney's fees. "[A]s a further sanction for contempt," the chancellor also dismissed "all pleadings and motions filed by the defendants."

¶16. On November 8, 2019, Leigh Ann Key entered an appearance as an attorney for Greg and Kieth.^[6] Key filed a motion for a new trial under Mississippi Rule of Civil Procedure 59 or alternatively, to set aside the judgment under Rule 60(b)(6). The motion claimed Greg and Kieth were entitled to a new trial because their previous attorneys (Wilson and Parrish) had not advised them of the contempt hearing. Key later filed ...