Cindy Ann Roberts v. David Hale Roberts
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2002-CA-00352-COA
CINDY ANN (SCOTT) ROBERTS
APPELLANT
v.
DAVID HALE ROBERTS
DATE OF TRIAL COURT JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEY FOR APPELLANT:
ATTORNEY FOR APPELLEE:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED
APPELLEE
1/28/2002
HON. PERCY L. LYNCHARD, JR.
DESOTO COUNTY CHANCERY COURT
H. R. GARNER
STEVEN GLEN ROBERTS
CIVIL - DOMESTIC RELATIONS
DENIED MOTION FOR A NEW TRIAL AND
AWARDED ATTORNEY FEES
REVERSED, RENDERED AND REMANDED 06/03/2003
06/13/2003 - DENIED; REVERSED, RENDERED
AND REMANDED - 10/07/2003
CERTIORARI FILED:
MANDATE ISSUED:
MODIFIED OPINION ON MOTION FOR REHEARING
EN BANC.
THOMAS, J., FOR THE COURT:
¶1.
The motion for rehearing is denied. The original opinion is withdrawn, and this opinion is substituted
therefor. Cindy Ann Roberts filed for divorce against David Roberts in DeSoto County and a judgment
for divorce was entered granting the divorce. Cindy later filed a petition to set aside the divorce for lack
of jurisdiction. Her petition was denied. Aggrieved she asserts the following:
I.
THE CHANCELLOR ERRED IN FAILING TO SET ASIDE THE JUDGMENT OF
DIVORCE WHICH WAS VOID FOR LACK OF JURISDICTION IN VIOLATION OF
MISS. CODE ANN. § 93-5-11 (SUPP. 2002).
II.
THE COURT ERRONEOUSLY HELD THAT THE APPELLANT WAS IN CONTEMPT OF
COURT OF A VOID JUDGMENT.
III.
THE COURT ERRED IN AWARDING ATTORNEY'S FEES AND EXPENSES FOR THE
CONTEMPT OF A VOID ORDER AGAINST THE APPELLANT.
IV.
THE COURT ERRED IN AWARDING ATTORNEY'S FEES AGAINST THE APPELLANT
WHICH DID NOT MEET THE "MCKEE" STANDARDS.
Finding reversible error as DeSoto County Chancery Court lacked jurisdiction, we reverse and remand.
FACTS
¶2.
David and Cindy Roberts were married in 1987 in Louisiana. They are the natural parents of two
minor children. They established residency in Tate County where they separated in February of 1999.
Cindy filed for divorce in Tate County and David filed an answer and counter complaint. The chancellor
denied the Robertses a divorce but granted custody of the two minor children to David.
¶3.
Cindy Roberts moved to DeSoto County and filed for divorce there charging as grounds for
divorce adultery, habitual cruel and inhuman treatment and irreconcilable differences. David Roberts
executed a waiver of process, entering his appearance in DeSoto County. Cindy was awarded a divorce
and attached to the divorce decree was the Tate County order referencing child custody along with a
property and child support agreement. On March 27, 2000, a final decree for divorce with the Tate
County order was entered in DeSoto County. The court adopted and approved the property settlement
agreement entered by the parties.
¶4.
On June 21, 2001, David Roberts filed a petition for citation of contempt against Cindy in the
Chancery Court of DeSoto County for her failure and refusal to execute a quitclaim deed pursuant to the
property settlement agreement. In response to David's petition, Cindy filed a petition to set aside the
divorce for lack of jurisdiction and other relief. On September 18, 2001, an order was entered finding the
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petition to set aside the divorce to be without merit. Cindy subsequently executed a quitclaim deed for her
interest in the marital home. She was later found to be in contempt of the court's previous order but purged
herself from being held in contempt by executing the quitclaim deed; however, David was awarded
attorney's fees.
I.
THE CHANCELLOR ERRED IN FAILING TO SET ASIDE THE JUDGMENT OF
DIVORCE WHICH WAS VOID FOR LACK OF JURISDICTION IN VIOLATION OF
MISS. CODE ANN. § 93-5-11 (SUPP. 2002).
¶5.
Cindy Roberts argues strict conformation of the statute is required. Cindy contends that even
though she brought the action in DeSoto County and David waived process and voluntarily attempted to
submit to the jurisdiction, jurisdiction cannot be agreed on. Cindy further argues that though this is an
appeal based on improper venue for Title 93 purposes venue is integrated into jurisdiction and the rules for
jurisdictional requirements apply. She claims this would render a judgment void.
¶6.
Mississippi Code Annotated Section 93-5-11 (Rev. 1994) addresses the filing of divorce complaints:
Mississippi Code Annotated Section 93-5-11 is patterned after Section 2738 of the Code of 1942. If the
defendant be a resident of this state, the complaint shall be filed in the county in which such defendant
resides or may be found at the time, or in the county of the residence of the parties at the time of separation,
if the plaintiff be still a resident of such county when the suit is instituted. If one party is not a resident of
this state, then the complaint shall be filed in the county where the resident party resides. Miss. Code Ann.
§ 93-5-11 (Rev. 1994). "This statute is not a mere statute of venue that may be waived but one of
jurisdiction of subject matter of the suit." Price v. Price, 202 Miss. 268, 274, 32 So. 2d 124 (1947).
"The words 'or may be found at the time', relative to the general statute, applies either to a non- resident
of the State or to a citizen of this State who has no actual domicile or fixed place of residence." Ross v.
Ross, 208 So. 2d 194, 196 (Miss. 1968).
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¶7.
In domestic relations cases filed under Title 93 of the Mississippi Code of 1972, the Mississippi
Supreme Court has held that if proper venue is lacking, a bill for divorce must be dismissed, not
transferred. Price v. Price, 202 Miss. 268, 274, 32 So. 2d 124, 126 (1947); Cruse v. Cruse, 202
Miss. 497, 500, 32 So. 2d 355, 355 (1947) (emphasis added). If the court is without jurisdiction--subject
matter or personal--no one is bound by anything the court may say regarding the (de)merits of the case.
Petters v. Petters, 560 So. 2d 722, 723 (Miss. 1990). A valid judgment requires (1) jurisdiction of
subject matter, or of parties and (2) due process of the law. Bryant v. Walters, 493 So. 2d 933, 938
(Miss. 1986). If a court lacks jurisdiction or the requirements of due process are not met, the judgment
is void and must be vacated. Id. at 937- 38.
¶8.
In Duvall v. Duvall, 80 So. 2d 752, 755 (1955), this Court said: "We consider the sole question
of whether the court ha[s] jurisdiction of the subject matter." "It is well settled that a judgment rendered
by a court having no jurisdiction of the subject matter is void, not merely voidable, and may be attacked
directly or collaterally, anywhere, and at any time. Such a judgment is a usurpation of power and is an
absolute nullity." Id. (citations omitted).
¶9.
Based on a substantial amount of black letter law this Court must reverse the decision of the
DeSoto County Chancery Court. The court exercised jurisdiction over the parties that it did not have. As
a matter of law no judgment exists and therefore the case, in its entirety, must be dismissed. We are
compelled to reverse and remand this case with instructions to the chancellor to dismiss.
¶10.
However, before the chancellor dismisses this case, a hearing should be held to determine if there
is justification for the imposition of sanctions against Cindy Roberts and/or the attorney who represented
her in the DeSoto County divorce proceeding, which appears to have been a frivolous action. Mississippi
Rule of Civil Procedure 11 allows for sanctions to be imposed for frivolous and harassing pleadings. The
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extreme waste of time and resources of this State and David Roberts was caused by Cindy Roberts'
attempted manipulation of the judicial system; unhappy with the contempt proceedings, but satisfied, until
then, with the divorce. There can be no doubt of the authority of our trial courts to assess reasonable
attorney fees when in the opinion of the court a motion or pleading is frivolous. "More substantively, a
pleading or motion is frivolous within the meaning of Rule 11 only when, objectively speaking, the pleader
or movant has no hope of success." Tricon Metals & Services, Inc. v. Topp, 537 So. 2d 1331, 1335
(Miss. 1989). "Frivolous filings impose substantial and unnecessary costs upon both litigants and the courts,
and ultimately upon the public." Id. If ¶ sanctions are ever proper, this is certainly one of those times.
¶11.
The divorce action in DeSoto County appears to have been little, if any, short of frivolous, and
therefore justifies consideration by the chancery court as to the appropriateness of sanctions pursuant to
MRCP.
II.
THE COURT ERRONEOUSLY HELD THAT THE APPELLANT WAS IN CONTEMPT OF
COURT OF A VOID JUDGMENT.
¶12.
A void judgment is just that, void. A litigant cannot be held in contempt of a void judgment.
McKinney v. McKinney, 374 So. 2d 230, 234 (Miss. 1979).
III.
THE COURT ERRED IN AWARDING ATTORNEY'S FEES AND EXPENSES FOR THE
CONTEMPT OF A VOID ORDER AGAINST THE APPELLANT.
¶13.
Attorney's fees cannot be awarded as the court had no jurisdiction to hear the case; therefore, there
is no judgment for Cindy to be held in contempt of and likewise no attorney's fees from a contempt
proceeding. That is not to say as we said before, on a hearing hereafter the trial court, if it finds, may award
attorney's fees to David if the trial court finds a Rule 11 violation.
¶14.
In view of the disposition of issues one, two and three we need not address the remaining issue.
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¶15. THE ORIGINAL OPINION IS WITHDRAWN, AND THIS OPINION IS
SUBSTITUTED THEREFOR. THE JUDGMENT OF THE DESOTO COUNTY CHANCERY
COURT IS REVERSED, RENDERED AND REMANDED FOR PROCEEDINGS
CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED
AGAINST THE APPELLEE.
KING, P.J., BRIDGES, LEE, MYERS AND CHANDLER, JJ., CONCUR.
SOUTHWICK, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY
McMILLIN, C.J., IRVING AND GRIFFIS, JJ.
SOUTHWICK, P.J., DISSENTING:
¶16.
The chancellor held that Mrs. Roberts, the procurer of the divorce in the wrong county, was
estopped from asserting its invalidity. I agree and therefore respectfully dissent to this reversal.
¶17.
The majority is correct to reject precedents cited by Mr. Roberts that in many kinds of suits, unless
error in venue is raised, the issue is waived. A divorce is treated differently. Other than for a divorce
based solely on irreconcilable differences, when “the defendant be a resident of the state, the complaint
shall be filed in the county in which such defendant resides . . . .” Miss. Code Ann. § 93-5-11 (Supp.
2002). A spouse’s “residence” under this statute has long been held to be the same as the person's
domicile. E.g., Bilbo v. Bilbo, 180 Miss. 536, 177 So. 772, 775 (1938). This divorce instead was filed
in the residence of the plaintiff-wife. The divorce was there granted without any objection. Under existing
precedents, only the proper county in a contested divorce has jurisdiction. Price v. Price, 202 Miss. 268,
272, 32 So. 2d 124, 126 (1947).
¶18.
One reason for the significance of statutory venue is that the state constitution makes general
statutes controlling as to changing venue for suits. Miss. Const art. 4, § 90 (c) (1890). The legislature has
established venue for chancery suits. Miss. Code Ann. §§ 11-5-1 and 11-5-3 (Rev. 2002). It has also
incorporated by reference the court-created Rules of Civil Procedure for a change of venue in cases in
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which a jury will be used. Miss. Code Ann. § 11-5-5 (Rev. 2002). None of these just-cited statutes
establish venue for divorce actions. Instead, that is controlled by Section 93-5-11. Statutory rules for
change of venue may not constitutionally be altered by court rule.
¶19.
This constitutional command does not answer whether a venue error can be waived. The Supreme
Court in Price and later cases has given that answer. For the reasons there explained, proper venue is a
jurisdictional issue. It therefore would not be subject to waiver.
¶20.
Despite the constitution and the caselaw already cited, I find that the chancellor was correct in
refusing to set aside the divorce that Mrs. Roberts herself filed for and obtained in the wrong county. Not
permitting venue to be waived in divorce suits protects against late-discovered error by a defendant. What
the chancellor first, and now this Court on appeal, must decide is whether the person who brought the suit
is similarly always able to raise the same error. Precedents support that a void judgment can be attacked
whenever, wherever and however the issue arises. Goodsell v. Delta & Pine Land Co., 72 Miss. 580,
18 So. 452, 453 (1895) (whenever and however); Hamilton v. Homer, 46 Miss. 378, 388 (1872)
(whenever and wherever). What I cannot find is any case that holds that the judgment may be set aside
by whomever brings the challenge to it. Instead, estoppel is applied even to challenges to void judgments.
¶21.
I start with the key precedent that announced that bringing a divorce suit in the proper county is
a jurisdictional issue. Price, 32 So. 2d at 126. The Supreme Court found that none of its prior precedents
resolved the matter. However, a “review of the authorities to the effect that a divorce suit brought in the
wrong county goes to the jurisdiction, and is not a mere matter of venue, is found in Haygood v. Haygood,
190 Ga. 445, 9 S.E.2d 834, 130 A.L.R. 87, and the annotations in the volume last cited.” Price, 32 So.
2d at 126. Since Haygood and the annotation are cited approvingly as the central authorities for the
decision, we too should make a review of these sources for evidence of the breadth of the rule.
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¶22.
Haygood certainly supports the rule that Price drew from it. Oddly, the Haygood court quoted
only the headnotes from a precedent in order to find that a divorce judgment was “void, for the reason that
the husband could sue only in the county of his wife's residence.” Haygood, 9 S.E. 2d at 838, quoting a
headnote in Odum v. Odum, 132 Ga. 437, 439, 64 S.E. 470, 471 (1909). However, the court in
Haygood went on to discuss at some length two cases in which void judgments were not permitted to be
set aside since the complaining parties were estopped:
In McConnell v. McConnell, 135 Ga. 828, 70 S.E. 647; Fuller v. Curry, 162 Ga. 293,
133 S.E. 244; the principles announced above were recognized, but on the principle of
estoppel it was held that the defendant, who had participated in the divorce suit by
acknowledging service and jurisdiction of the court, could not afterward come into equity
and ask the affirmative relief of setting aside the verdicts and decree for want of
jurisdiction. In the McConnell case it was said that in the circumstances the plaintiff in the
equity suit did not come with clean hands. This is different from the instant case, where no
such facts appear upon which to deny the defendant entry to the court of equity.
Haygood, 9 S.E. 2d at 839. A later Georgia case relied on these same precedents, the ones that also were
foundational for Mississippi’s Price decision, to mark this distinction:
[Though] a void judgment may be attacked in any court and by any person, these Code
sections must be construed in the light of equally well established principles of law and
equity to the effect that “He who would have equity must do equity”; that he who comes
into a court of equity with unclean hands must be denied relief; that one will not be
permitted to take advantage of his own wrong . . . .
Musgrove v. Musgrove, 213 Ga. 610, 100 S.E.2d 577, 578 (1957) (citations omitted).
¶23.
Those who wished to understand the Price reasoning were referred not only to Haygood but also
to “the annotations in the volume last cited.” Price, 32 So. 2d at 126, referring to Annotation, “Decree of
Divorce or Separation as Subject to Attack Because Suit was Brought in Wrong County or Judicial
District,” 130 A.L.R. 94 (1941). In this ten-page annotation was a page and a half section on estoppel.
Id. at 101-03. That section was introduced with the statement that in “some circumstances, it has been held
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that the party attacking a decree of divorce because it was filed in the wrong county or judicial district is
estopped to do so.” Id. at 101. All the cases that are then discussed, which include McConnell, found
that there was estoppel.
¶24.
The Price court did not necessarily endorse everything in the two principal authorities that it cited,
but at least it can be said that the sources for the Price rule clearly embraced estoppel.
¶25.
Estoppel of a plaintiff who is responsible for procuring a void judgment has been the rule in
Mississippi. One important precedent on this issue is Harrison v. G & K Investment Co., 238 Miss. 760,
115 So. 2d 918 (1959). There, ownership of oil and gas rights would be determined by the validity of a
divorce twenty-five years prior to the suit. Joseph Knox and Alpha Bryant were married in 1923. Mrs.
Knox was committed to a mental hospital in 1928. The next year, her husband married another woman
without acquiring a divorce. In 1930, Mr. Knox procured the signature of his incompetent first wife to
divorce pleadings. He was then granted a divorce based on her being insane at the time of their marriage.
Mr. Knox almost immediately underwent a second marriage to the woman he had attempted to wed the
previous year. His first wife, Alpha Knox, died in 1934 and left no surviving children or other spouse.
Harrison, 115 So. 2d at 920.
¶26.
Many years after that, in 1958, suit was brought because of mineral interests that the first Mrs.
Knox had owned when she died, interests whose value was not appreciated for decades. The ex-husband
or widower, as the case would decide, argued that the divorce has been obtained only because of criminal
charges brought against him for bigamy. The argument followed that the divorce was void because it was
based on coercion. The court did not address the factual validity of that assertion, but only held that “a
husband could not have a divorce decree set aside where it was rendered at his instance, with knowledge,
actual or presumed, of its irregularity.” Id. at 923. To support that statement, the court relied on a
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precedent that dealt with a potentially defective notice by publication, which was “not void, having been
rendered by a court of general jurisdiction.” Cratin v. Cratin, 178 Miss. 881, 174 So. 255, 255 (1937),
cited in Harrison, 115 So. 2d at 923.
¶27.
Then the court made this statement about void decrees, not just irregular ones:
It is true that our cases hold that an absolute void decree, order or judgment may be
assailed anywhere on collateral attack, but the right to do so is limited to those who are not
estopped by affirmative conduct, laches or some other equitable doctrine.
Harrison, 115 So. 2d at 923. This language is dicta, as there was no finding that the 1930 divorce was
void because of coercion.
¶28.
The Harrison court did not identify any precedents on estoppel. Examining some of the prior
caselaw, I find one decision cited in Harrison for a different proposition to contain this statement: “a wife
was estopped to claim a share in her late husband's estate, as a widow, although a divorce obtained from
her in a suit brought by the guardian for the insane husband was absolutely void, [since] she had accepted
alimony under the decree and had contracted a subsequent marriage.” Minor v. Higdon, 215 Miss. 513,
529, 61 So. 2d 350, 355-56 (1952), cited in Harrison, 115 So. 2d at 922-23. Citing several authorities,
the Supreme Court in another precedent found that “it is settled law here, that the acceptance of the
distributive share of the purchase money realized on a sale for partition under a void decree estops.” Keel
v. Jones, 93 Miss. 244, 47 So. 385, 385 (1908).
¶29.
The source of the estoppel in some of the precedents is the receipt of money or other direct benefits
under a void decree. Estoppel also arises, though, from the “clean hands” doctrine as noted in the Georgia
McConnell case used in the precedent on which the Mississippi Price decision relied.
¶30.
A later decision paraphrased Harrison with these words:
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As a general rule, a void decree, order or judgment may be assailed anywhere on a
collateral attack, but the right to do so is limited to those who are not estopped by
affirmative conduct which caused or resulted in the decree sought to be set aside.
Krohn v. Migues, 274 So. 2d 654, 657 (Miss. 1973). In Krohn, the natural mother of a minor child
sought to use habeas corpus proceedings to overturn an adoption decree. The case turned on whether
the failure of the mother to include the child's natural father in the earlier adoption proceedings rendered
the judgment void. The natural mother's failure to join the father would have estopped her, but then the
adoptive mother also failed to challenge his exclusion despite her knowledge of him. The estoppels
cancelled each other and the voidness of the judgment could be shown. Krohn, 274 So. 2d at 658. I find
it to be critical that there was a third individual whose absence created the voidness. To estop either
participant would cause the fraud on the missing father to remain uncorrected. The first judicial opportunity
to provide redress needed to be seized.
¶31.
I do not find that the principle of double estoppel should extend beyond facts such as in Krohn.
Both spouses here actively participated in the divorce litigation. Some of the Georgia precedents relied
upon in Price would estop both parties who participated in a divorce gained in the wrong county from
setting it aside. E.g., McConnell, 70 S.E. at 647. We need not address whether the defendant in a
divorce would be estopped from seeking later to set it aside. Our issue is whether the plaintiff-spouse who
brought the suit would be. There is no missing third party here as in the Krohn adoption proceedings.
Krohn apparently was a collusive lawsuit in which the two parties agreed not to notify the father in order
to facilitate the adoption. I would conclude that it is the missing father’s interests in Krohn that required
consideration of the fact that the decree was void.
¶32.
To determine if estoppel should apply here, we need to determine the core requirements for the
doctrine. The Supreme Court has declared the “modern definition of an estoppel is said to be: 'The
11
preclusion of a person from asserting a fact, by previous conduct inconsistent therewith, on his own part
or the part of those under whom he claims, or by an adjudication upon his rights which he cannot be
allowed to call in question.” Reliance Mfg. Co. v. Barr, 245 Miss. 86, 99, 146 So. 2d 569, 574 (1962)
(quoting BOUVIER'S LAW DICTIONARY, 1929 Ed., p. 365).
¶33.
It is true that estoppel often is based on concealment of facts. “The essential elements of estoppel
are conduct and acts, language or silence, amounting to a representation or concealment of material facts,
with knowledge or imputed knowledge of such facts, with the intent that representation or silence, or
concealment be relied upon, with the other party's ignorance of the true facts, and reliance to his damage
upon the representation or silence.” Crowe v. Fotiades, 224 Miss. 422, 443-44, 80 So. 2d 478, 486
(1955). Here there was no concealment, as the complaint for divorce stated that the defendant was a
resident of Senatobia, which is in Tate County. The jurisdictional issue apparently was simply overlooked
by the trial court. Yet as the Supreme Court has noted, “estoppels have been and are the subject of many
definitions.” Perrien v. Mapp, 374 So. 2d 794, 797 (Miss. 1979). I find compelling on the issue before
us, that the party who through ignorance or boldness brought the suit in the wrong county would be using
her own error to seek the return of something she had earlier asked the court to take, namely, her marriage.
¶34.
I do not find that the chancellor’s failure to notice the jurisdictional defect alters the operation of
estoppel. The plaintiff asserted that the court had jurisdiction even though an alert reading of her complaint
would have revealed that the court did not. The court proceeded to grant her what she requested that she
be given. The former husband has since relied on that divorce, which the former wife seeks to improve
upon in this new suit.
¶35.
To see if the principle of estoppel is consistent with the Mississippi decision in Price (the case
holding void a divorce decree in the wrong county) and its offspring, I have examined Price and the cases
12
that have cited it. Price itself was not a case in which estoppel was relevant. The divorce complaint had
been dismissed because it was filed in the wrong county. The petitioning spouse appealed. The Supreme
Court noted that a decree of divorce would have been void, but there was no divorce decree to set aside.
Price, 32 So. 2d at 125.
¶36.
There are only eight Mississippi divorce cases that have cited Price. Three of them, like Price
itself, were appeals of the dismissal of complaints not brought in the defendants’ home counties. Stark v.
Stark, 755 So. 2d 31 (Miss. Ct. App. 1999); Ross v. Ross, 208 So. 2d 194 (Miss. 1968); Cruse v.
Cruse, 202 Miss. 497, 32 So. 2d 355 (1947). No potential for estoppel there.
¶37.
Two of the cases discussed the issue but found that the divorce action had been brought in the
proper county. Miller v. Miller, 323 So. 2d 533 (Miss. 1975); Carter v. Carter, 278 So. 2d 394 (Miss.
1973). Again, no potential for estoppel arose.
¶38.
Three others cited Price for propositions other than that the decree was void if the divorce action
is filed in a county other than that of the defendant’s residence. Joiner v. Joiner, 739 So. 2d 1043 (Miss.
Ct. App. 1999); Wells v. Roberson, 209 So. 2d 919 (Miss. 1968); Moran v. Moran, 252 Miss. 890,
173 So. 2d 916 (1965).
¶39.
The only court that has discussed Price in a fact situation such as we have before us was an
intermediate Louisiana appellate court, which was considering whether to give full faith and credit to a
Mississippi divorce. Porter v. Hawkins, 240 So. 2d 912, 913 (La. Ct. App. 1970). There, the spouse
seeking to set the divorce aside had been the defendant in the Mississippi action. A contested divorce had
been granted to the plaintiff-husband in Madison County, Mississippi, when that was not the county of
residence for either spouse. The Louisiana court agreed that on these facts, the divorce would be set aside.
This may be inconsistent with the Georgia McConnell case, relied upon in the precedents cited in Price,
13
which would estop either spouse who actively participated in the earlier divorce. However, an equally
reasonable application of estoppel is to limit it to the party who brought the action in the wrong county.
¶40.
Many divorce cases have approved the doctrine of estoppel though not necessarily applied it.
Most of the divorce decrees in the following precedents were simply invalid: Kolikas v. Kolikas, 821 So.
2d 874 (Miss. Ct. App. 2002) (no estoppel of defendant in divorce who had not indicated reliance on
decree); Scribner v. Scribner, 556 So. 2d 350 (Miss. 1990) (estoppel because of remarriage in reliance
on divorce); Zwerg v. Zwerg, 254 Miss. 8, 179 So. 2d 821 (1965) (estoppel to assert invalidity of decree
because of admitted cohabitation after it was entered); Joy v. Miles, 190 Miss. 255, 199 So. 771 (1941)
(decree allegedly obtained by husband without wife’s knowledge, but wife estopped to set aside because
she remarried); Cratin v. Cratin, 178 Miss. 881, 174 So. 255 (1937) (“may become estopped from
complaining of a defective . . . decree by accepting the benefit thereof”); Hester v. Hester, 103 Miss. 13,
60 So. 6 (1912) (estoppel from long acquiescence).
¶41.
My concern is that parties not misuse the court system. The purpose of the related doctrine of
judicial estoppel, which is not directly applicable, is to prevent parties from playing “‘fast and loose with
the courts’ which has been emphasized as an evil the courts should not tolerate. Scarano v. Central
Railroad Co., 203 F.2d 510, 513 (3d Cir. 1953). The basic premise behind the doctrine is that parties
should not be permitted to assert inexplicably contrary positions in separate lawsuits.” Illinois Central RR.
Co. v. Haymer, 96-CA-01234 (Miss. Ct. App. Oct. 27, 1998) (unpublished opinion). Later in this
opinion, we stated “what this doctrine of judicial estoppel is trying to prevent is the misuse of the courts by
inconsistent representations, in which litigants choose case by case what representations may do them the
most good.”
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¶42.
In the divorce matter before us, I find fast and loose practices. So does the majority. The
difference is that I find a more direct manner in which to deal with the sleight-of-hand that is being practiced
before our eyes. It is to deny the relief that Mrs. Roberts requests.
¶43.
Leaving a void judgment untouched should not be viewed as a revolutionary concept. Estoppel
to complain of the judgment has the same effect as an absence of “standing.” Not everyone can complain
about what a court has done, no matter how errant it might be. A stranger to the judgment, i.e., someone
whose interests are in no way affected, generally cannot. Similarly, the person who intentionally filed in the
wrong county, thereby causing the void judgment to be entered, must suffer the consequences unless there
is someone else willing to take up the issue. The only person here complaining is the former plaintiff. Her
own actions gained her no right to complain.
¶44.
Since this is an effort to undo a divorce, the image the attempt conjures up is the reverse of “having
made your bed, you must lie in it.” The effect is the same, though. The person who brought the suit that
unmade the bed cannot later assert her own error in an attempt to remake it.
McMILLIN, C.J., IRVING AND GRIFFIS, JJ., JOIN THIS SEPARATE WRITTEN
OPINION.
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