STINSON v. STINSON
BEFORE THOMAS, P. J., LEE, AND SOUTHWICK, JJ.
SOUTHWICK, J., FOR THE COURT:
1. Ramona 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 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 based 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 proceeding 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 that 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 notice 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 one 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, 556 So. 2d 716,
719 (Miss. 1990). We agree the rule applies, but it requires notice to be sent to " attorneys and parties
without attorneys" of the setting of the docket. M. R. C. P. 40 ( b). In the case upon which Mr. Stinson relies,
the defendant who was harmed by failure to comply with the rule had answered the complaint and was
represented by counsel. King, 556 So. 2d at 717.
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 an 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 case
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, he 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, 526 So. 2d 547
(Miss. 1988). The husband was served with a complaint for divorce but failed to file an answer. The
plaintiff- wife " appeared before the Chancery Court in accordance with the custom and usage for handling
uncontested divorces." Id. at 548. The chancellor granted a divorce on the ground of habitual cruel and
inhuman treatment. Within ten days, the now- former husband filed a motion to set aside or rehear the
matter, arguing that he was unable to afford an attorney and did not realize that he could appear pro se. The
chancellor denied his motion. Id.
13. On appeal the supreme 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 actions for divorce or annulment of marriage may only be granted where ' the
claimant establishes his claim or rights to relief by evidence . . . . '
Mayoza, 526 So. 2d at 548. A judgment in a divorce case entered after the default of the defendant to
answer was " a special kind of default judgment." Id. A defaulting party's motion, if filed within ten days,
could be treated as a motion for reconsideration under Rule 59; even if the motion was delayed beyond ten
days, it would be a motion for relief from judgment under Rule 60. Id. at 548- 49. Under Rule 59, "[ t] he
Court has the discretion to order a rehearing or to alter or amend the judgment if convinced that a mistake
of law or fact has been made, or that injustice would attend allowing the judgment to stand." Id. at 549.
Since Mayoza was decided, the court has determined that if " a motion calls into question the correctness of
all or any part of a judgment . . . and where the motion is filed within the time allowed by Rule 59, we will
presume that the motion has been filed under Rule 59 without regard to how it may be styled." Bruce v.
Bruce, 587 So. 2d 898, 904 (Miss. 1991).
14. The defaulting husband in Mayoza " made no showing of newly discovered evidence. He offered no
reason why he could not have appeared at the July 23, 1986 trial and offered these evidentiary defenses."
Mayoza, 526 So. 2d at 550.
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 chancellor has
authority to grant the divorce despite the absence of the defendant. Rawson v. Buta, 609 So. 2d 426, 430
( Miss. 1992).
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. After 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 insurance 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
that 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 support to a chancellor necessarily entails submission of all matters
touching on that subject. Brennan v. Brennan, 638 So. 2d 1320, 1325 ( Miss. 1994). " Such issues include
but are not necessarily limited to: insurance, both hospitalization and life insurance, college and the cost
thereof; and any matter or fact that impacts on child support." Id.
21. The awards relating to the children were properly made based on her request for " an increase in child
support from the previous order." As for the remaining items - requiring Mr. Stinson to assume the second
mortgage on the home and awarding Mrs. Stinson one- half his pension/ profit sharing plan - the 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, 607
So. 2d 122, 127 (Miss. 1992).
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 another appeal after a chancellor awarded alimony though it was not requested in the complaint.
Queen v. Queen, 551 So. 2d 197, 199 (Miss. 1989). A post- judgment amendment to the complaint which
failed to demand a specific amount of alimony was allowed by the chancellor. Although the defendant
argued that Rule 54(c) prohibited an award of alimony, the court rejected such an argument, explaining that
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 " an 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, 639 So. 2d 921, 928 (Miss.
1994). He also points to the lack of a specific finding that the award of child support met the statutory
guidelines. We do not know on this record what amount the chancellor considered to be Mr. Stinson's
income and therefore cannot determine whether the child support guidelines were followed. A deviation
from the guidelines must be explained on the record by the chancellor. Miss. Code Ann. § 43- 19- 101 (2)
(Supp. 1998).
25. All that is in the chancellor'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 1/2 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 situation 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, 639 So. 2d at 928. To support an award of attorney's fees, there must be
evidence and a finding that the person being awarded the fees was unable to pay. None of that appears in
the decree.
28. It is true that when a decree has been entered, a presumption arises that sufficient evidence was heard
to sustain the decree. Wade v. Wade, 419 So. 2d 584, 585 (Miss. 1982). The problem here is not
assumptions about evidence, but silence about findings. Mr. Stinson states that the property division and the
support for the children were in error, but does not attack the decision regarding custody. Thus we do not
disturb the decision regarding custody, nor the granting of the divorce itself because specific findings on the
grounds for divorce are not required. We reverse and remand for such further proceedings as the
chancellor deems necessary in order that complete findings of fact and conclusions of law can be entered
on the monetary awards, consistent with Ferguson, the statutory guidelines for child support, and the
requirements for awarding attorney's fees.
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.
