David Maxwell Pace v. Sally Pace
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2007-CP-01052-COA
DAVID MAXWELL PACE
APPELLANT
v.
SALLY PACE
APPELLEE
DATE OF 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:
MANDATE ISSUED:
05/31/2007
HON. D. NEIL HARRIS, SR.
JACKSON COUNTY CHANCERY COURT
DAVID MAXWELL PACE (PRO SE)
SALLY PACE (PRO SE)
CIVIL - DOMESTIC RELATIONS
DIVORCE GRANTED ON GROUND OF
HABITUAL CRUEL AND INHUMAN
TREATMENT
AFFIRMED- 03/24/2009
EN BANC.
KING, C.J., FOR THE COURT:
FACTS AND PROCEDURAL HISTORY
¶1.
David Maxwell Pace and Sally Pace were married on April 30, 2002, and separated
in June of that same year. Sally filed for divorce on February 26, 2003, in the Jackson
County Chancery Court. On March 31, 2007, she was granted a divorce on the ground of
habitual cruel and inhuman treatment. David and Sally were married for approximately five
years, but the couple never lived together and had no joint property or bank accounts. Sally
lived in Gautier, Mississippi, and David lived in Orange Beach, Alabama. Sally stayed with
David on two or three weekends during the two months before they separated. The couple
had one child together, David Cruise Pace (Cruise), who was born prior to the marriage on
November 13, 1998. During the time that the couple was separated, Sally gave birth to
another child, Stormy Langley, on July 7, 2005. Russell Langley is listed as Stormy’s father
on her birth certificate.
¶2.
The Jackson County Chancery Court tried this matter on March 14, 2007. Both Sally
and David were represented by counsel. Sally as well as Kathy Garrison, a friend of Sally’s,
testified regarding David and Sally’s relationship. David was not present at the trial. David
claimed that an emergency had occurred, which required him to take an adult son from a
previous marriage to the hospital. The trial court denied a continuance requested by David’s
attorney because there was no proof that David was actually at the hospital. Sally informed
the chancellor that during lunch, she had called and spoken with David at work. Based on
the testimony of Sally and Garrison, the chancellor granted the divorce on the ground of
habitual cruel and inhuman treatment and awarded physical custody of the couple’s child to
Sally. The chancellor established a visitation schedule and ordered David to pay $300 a
month in child support.
¶3.
David now appeals the order of the chancellor, asserting the following issues: (1) the
chancellor did not have in personam jurisdiction over him; (2) the chancellor erred in
granting a divorce based on habitual cruel and inhuman treatment; (3) the chancellor erred
in failing to grant a continuance; and (4) the chancellor erred in not ordering a DNA test to
prove the paternity of Stormy. Finding no prejudicial error, we affirm.
STANDARD OF REVIEW
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¶4.
Our standard of review on appeals from chancery court is limited. Reddell v. Reddell,
696 So. 2d 287, 288 (Miss. 1997). “The chancellor’s findings of fact should not be interfered
with unless they were ‘manifestly wrong, clearly erroneous or an erroneous legal standard
was applied.’” Isom v. Jernigan, 840 So. 2d 104, 106 (¶6) (Miss. 2003) (quoting Bell v.
Parker, 563 So. 2d 594, 596-97 (Miss. 1990)). Questions of law, however, are reviewed de
novo. Id.
DISCUSSION
I. WHETHER THE CHANCELLOR HAD IN PERSONAM JURISDICTION
OVER THE PARTIES.
¶5.
David argues that because he was never served with a summons, the chancery court
lacked in personam jurisdiction over him and, therefore, could not lawfully grant a divorce.
In his order granting the divorce, the chancellor held that jurisdiction was proper and denied
all outstanding motions, including David’s motion to dismiss for lack of jurisdiction.
¶6.
In her complaint for divorce and motion for ex parte relief regarding child custody
filed on February 26, 2003, Sally declared that David’s current post office box, street
address, and place of residence were unknown to her after diligent search and inquiry.1 On
that same day, the chancellor ruled on Sally’s motion for ex parte relief, which requested that
David return the couple’s son to her. Sally had permitted their son to visit with David on
February 18, with the agreement that the child would be returned on February 25. Sally filed
1
Despite Sally’s contention that David’s address was unknown, a street address was
listed in the complaint that Sally purported to be David’s last known address. Also, Sally
maintained contact with Cruise, who was with David at the time, and David was able to be
located when he was ordered to return Cruise to Sally. Further, Sally called David at his
place of work during the delay in the divorce hearing, and David answered.
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her complaint for divorce and motion for ex parte relief after David failed to return the child
as agreed. On February 26, 2003, the chancellor granted Sally temporary custody upon the
grounds that the child normally resided with her and needed medication which David could
not provide him. David was served with an attested copy of the order granting ex parte relief,
which also set the temporary custody issue for a hearing on March 14, 2003, at 9:00 a.m.
¶7.
In response to the February 26 order, David appeared before the chancellor on March
14, 2003. At that time, the parties and their attorneys signed an agreed order dissolving the
temporary ex parte order, establishing custody and a visitation schedule, and setting the case
for trial on March 26, 2003. The case was not tried on March 26, 2003. However, on March
26, 2003, David filed a motion to contest jurisdiction. In that motion David stated that: (1)
he had not been served with a summons or complaint, and (2) he had appeared in this case
on March 14, 2003, in response to the February 26, 2003, temporary order.
¶8.
On May 9, 2003, David filed a document entitled “Answer and Motion for Temporary
Relief,” in which he responded to the divorce complaint and requested that the trial court
grant him custody of the minor child, or reasonable visitation, and “such other relief to which
he may be entitled.” In response, on June 4, 2003, the chancellor signed another temporary
order. This order (1) gave the parties joint legal custody with primary physical custody given
to Sally, (2) established a formal visitation schedule, (3) established temporary child support,
and (4) set an October 14, 2003, trial date.
¶9.
On July 10, 2003, David filed a “Motion to Reconsider and to Modify Custody Order”
asking for a reduction in child support or paramount custody of the child. On August 14,
2003, the chancellor ordered this motion and a contempt motion by Sally to be heard by the
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Family Master. On September 30, 2003, Sally served her answers to David’s interrogatories.
On October 6, 2003, David, acting pro se, filed a motion for additional time to respond to the
contempt motion and to reschedule the hearing.
¶10.
The final ruling in this action did not occur until four years later. During that time,
no ruling had been on David’s motion contesting jurisdiction. On March 14, 2007, just
before the chancellor made his ruling granting the divorce based on habitual cruel and
inhuman treatment, David’s attorney reminded the chancellor that there was an outstanding
motion objecting to jurisdiction. The chancellor stated that all outstanding motions were
denied and entered a final judgment of divorce.
¶11.
In order for a judgment of a court to be valid, the court must have personal jurisdiction
over the parties to the action. James v. McMullen, 733 So. 2d 358, 359 (¶3) (Miss. Ct. App.
1999) (quoting Rice v. McMullen, 207 Miss. 706, 727, 43 So. 2d 195, 201 (1949)). “The
existence of personal jurisdiction, in turn, depends upon the presence of reasonable notice
to the defendant that an action has been brought.” Noble v. Noble, 502 So. 2d 317, 320
(Miss. 1987) (quoting Kulko v. Superior Court of California, 436 U.S. 84, 91 (1978)).
However, “absent some proof of [the] defendant’s receipt of summons, the reasonableness
of notice is questionable.” Id.
¶12.
No mention is made of service of process in the record other than Sally’s contention
that she was unable to determine an address at which to serve process on David. Mississippi
Rule of Civil Procedure 4(h) states: “If a service of the summons and complaint is not made
upon a defendant within 120 days after the filing of the complaint . . . the action shall be
dismissed as to that defendant without prejudice upon the court’s own initiative with notice
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to such party or upon motion.” “If a defendant does not voluntarily appear to a cause against
him, he cannot be gotten into court except in the manner laid down by law.” Kolikas v.
Kolikas, 821 So. 2d 874, 878 (¶17) (Miss. Ct. App. 2002). Therefore, absent some proof that
process was served upon David, the chancellor lacked jurisdiction to hear this matter unless
David is deemed to have consented to jurisdiction by making a general appearance. Id.
¶13.
Mississippi Rule of Civil Procedure 12(h)(1) states:
A defense of . . . insufficiency of process, or insufficiency of service of process
is waived (A) if omitted from a motion in the circumstances described in
subdivision (g), or (B) if it is neither made by a motion under this rule nor
included in a responsive pleading or an amendment thereof permitted by Rule
15(a) to be made as a matter of course.
While David objected to jurisdiction by motion on March 26, 2003, and continued at various
points to object to jurisdiction, we find that David’s actions throughout the proceedings are
inconsistent with his assertion of lack of jurisdiction.
¶14.
While he later objected to jurisdiction, David appeared at the ex parte hearing on
March 14, 2003.
At that time, he both “approved and agreed” to that order which
temporarily (1) provided for the parties to have joint legal custody, (2) placed physical
custody with Sally, (3) established formal visitation, and (4) set the matter for trial on March
26, 2003. Even after he objected to the court’s jurisdiction, David continued to make
requests for relief from the chancery court and to file various motions, including: to hold
Sally in contempt, to reconsider the order, to modify custody, and for leave to establish
paternity.
¶15.
“Mississippi does not recognize ‘special appearances’ except where a party appears
solely to object to the court’s jurisdiction over her person on grounds that she is not amenable
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to process. One waives process and service, however, upon making a general appearance.”
Isom, 840 So. 2d at 107 (¶9) (internal citation omitted). This Court finds that by voluntarily
appearing and fully participating in the March 14, 2003, hearing, David waived service of
process and entered a general appearance for all purposes. This entry of appearance and
waiver of process was reaffirmed on each of the many occasions that David invoked the
jurisdiction of the trial court to grant to him some specific relief. See Dennis v. Dennis, 824
So. 2d 604, 610 (¶15) (Miss. 2002) (quoting McGuire v. Sigma Coatings, Inc., 48 F.3d 902,
907 (5th Cir. 1995)). Therefore, this Court finds that the chancellor was correct in denying
David’s motion for lack of jurisdiction.
II. WHETHER THE CHANCELLOR ERRED BY GRANTING SALLY A
DIVORCE BASED ON HABITUAL CRUEL AND INHUMAN
TREATMENT.
¶16.
David argues that insufficient proof was shown for the chancellor to grant a divorce
based on habitual cruel and inhuman treatment.
¶17.
In order for a divorce to be properly granted on the ground of habitual cruel and
inhuman treatment, the following must be proven by a preponderance of the evidence:
[c]onduct that either (1) endangers life, limb, or health, or creates a reasonable
apprehension of such danger, rendering the relationship unsafe for the party
seeking relief, or (2) is so unnatural and infamous as to make the marriage
revolting to the non-offending spouse and render it impossible for that spouse
to discharge the duties of marriage, thus destroying the basis for its
continuance.
Jackson v. Jackson, 922 So. 2d 53, 56 (¶4) (Miss. Ct. App. 2006) (quoting Peters v. Peters,
906 So. 2d 64, 68 (¶13) (Miss. Ct. App. 2004)). “As a general rule, the habitual cruel and
inhuman treatment must be shown to be routine and continuous; however, a single
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occurrence may be grounds for a divorce on this ground.” Boutwell v. Boutwell, 829 So. 2d
1216, 1220 (¶14) (Miss. 2002). In reviewing a divorce decree, this Court must view the facts
in the light most favorable to the appellee and will not disturb the chancellor’s finding unless
we find the chancellor’s decision to be manifestly wrong or not supported by substantial
evidence. Id. at 1220 (¶13). It is the duty of the chancellor as the trier of fact to evaluate the
sufficiency of the proof based on the credibility of the witnesses and the weight of their
testimonies. Id. at (¶14) (citing Richard v. Richard, 711 So. 2d 884, 888 (¶13) (Miss. 1998)).
¶18.
Sally testified that from the date of their marriage, she and David never lived together
or attempted to establish a marital home. She returned to her home in Gautier, Mississippi,
and he returned to his home in Orange Beach, Alabama. According to Sally, she was
expecting to make a home with David. She testified that David had likewise indicated a
desire to establish a marital home with her. However, on each of the occasions when Sally
anticipated moving to Orange Beach to live with David and establish a marital home, there
was always something on David’s end which prevented her moving.
¶19.
Sally also testified that on the one or two weekends that she visited David, he received
calls from females inviting him out. Notwithstanding her presence there, David declined to
inform his female admirers that he was in fact married and needed to act accordingly.
Instead, David chose to merely imply that he was unavailable because his son was there with
him.
¶20.
David’s conduct in apparently refusing to establish a marital home with Sally started
on their wedding day, continued unabated, and had a negative impact on Sally’s health. This
course of conduct was intentional, and apparently, it was designed to preclude the true
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establishment of a marital relationship. David’s conduct was so unnatural as to render
Sally’s discharge of her marital duties impossible and, thus, destroyed any basis for the
establishment of a marriage. The health impact of David’s conduct upon Sally was testified
to by Garrison.
¶21.
The chancellor heard and weighed the evidence, all of which supported the allegations
of Sally. Thus, his factual findings are supported by the evidence and are binding upon this
Court. See Stribling v. Stribling, 906 So. 2d 863, 868 (¶17) (Miss. Ct. App. 2005) (citing
Hensarling v. Hensarling, 824 So. 2d 583, 586 (¶7) (Miss. 2002)). While this Court reviews
questions of law de novo, the course of intentional conduct attributed to David was
tantamount to cruel and inhuman treatment, and it provided a basis upon which the
chancellor could grant Sally a divorce.
¶22.
This issue is without merit.
III. WHETHER THE CHANCELLOR ERRED BY FAILING TO GRANT
DAVID A CONTINUANCE.
¶23.
The grant or denial of a motion for continuance is left to the sound discretion of the
trial court and will not be reversed on appeal absent an abuse of that discretion. New v.
Comola, 881 So. 2d 369, 373 (¶13) (Miss. Ct. App. 2004).
¶24.
On the morning of trial, David’s attorney asked the court for a continuance, stating that
her client had indicated an inability to be present in court because it was necessary to take a
family member to the hospital. The attorney stated that David had been informed that he
needed to provide the trial court with some verification of this claim, which he was to fax to
her office. The trial court provided David’s attorney with the court’s fax number to expedite
9
receipt of the verification. No verification was ever received, and the trial court denied the
motion for a continuance. Under these facts, we cannot say that the trial court abused its
discretion.
IV. WHETHER THE CHANCELLOR SHOULD HAVE ORDERED A DNA
TEST TO PROVE THE PATERNITY OF STORMY LANGLEY.
¶25.
On June 21, 2005, David filed a motion for leave of court to file a counter-complaint
for divorce, paternity, and child custody. In this motion, David requested that the chancellor
establish paternity of Sally’s unborn child, which was due to be born in July, and if he was
determined to be the biological father of the child, he requested custody and child support.
In the judgment of divorce, the chancellor found that Stormy was not David’s child.
¶26.
Mississippi Code Annotated section 93-9-21(2) (Rev. 2004) states: “The court, on its
own motion or on motion of the plaintiff or the defendant, shall order the mother, the alleged
father and the child or children to submit to genetic tests and any other tests which reasonably
prove or disprove the probability of paternity.” Thus, had it been alleged that David was the
biological father of the child, he would have had the right to a paternity determination.
However, because the parties agreed in their respective pleadings that David was not Stormy’s
father, he had no entitlement to a paternity test. This issue is without merit.
CONCLUSION
¶27.
Having found no merit in any of David’s issues, the chancellor’s judgment is affirmed.
¶28. THE JUDGMENT OF THE JACKSON COUNTY CHANCERY COURT IS
AFFIRMED.
ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE
APPELLANT.
MYERS, P.J., BARNES AND CARLTON, JJ., CONCUR. LEE, P.J., CONCURS
IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION
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JOINED BY IRVING, GRIFFIS AND ROBERTS, JJ. ISHEE AND MAXWELL, JJ.,
NOT PARTICIPATING.
LEE, P.J., CONCURRING IN PART, DISSENTING IN PART:
¶29.
With respect for the majority, I must dissent as to Issue II – whether the chancellor
erred in granting a divorce based on habitual cruel and inhuman treatment. I concur as to the
remaining issues. The majority finds that sufficient proof was presented by the testimony of
Sally and Garrison to support a divorce on this ground. As I find that the testimony was
insufficient to prove habitual cruel and inhuman treatment, I would reverse and render the
chancellor’s decision to grant the divorce based on this ground.
¶30.
For a divorce to be granted on the ground of habitual cruel and inhuman treatment,
“[t]here must be proof of systematic and continuous behavior on the part of the offending
spouse which goes beyond mere incompatibility.” Morris v. Morris, 804 So. 2d 1025, 1027
(¶8) (Miss. 2002) (quoting Parker v. Parker, 519 So. 2d 1232, 1234 (Miss. 1988)). In certain
cases, “a single occurrence may be grounds for a divorce on this ground,” Boutwell v.
Boutwell, 829 So. 2d 1216, 1220 (¶14) (Miss. 2002), but this is not such a case as there was
no allegation of a single act that was particularly offensive. It seems nearly impossible in this
case to find “systematic and continuous behavior” when the marriage, not including the
separation, lasted for less than two months, and the couple did not even live together during
those two months. At the most, the couple only spent a few weekends together. Sally’s
allegations against David were that he would come home late, pass out, or urinate on the bed
or floor because he was intoxicated. She also testified that girls would call on the phone
wanting him to meet them at bars. Sally’s testimony regarding these complaints was as
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follows:
Q. So in your complaint for divorce, you alleged that you were entitled to a
divorce on the grounds of habitual cruel and inhumane [sic] treatment and/or
habitual drunkenness. Can you tell [t]he Court what behavior that your
husband – what conduct that occurred during the marriage that you are basing
that allegation on?
A. The coming home late at night or coming home the next day intoxicated.
Coming home, passing out, urinating on the bed or in the floor. Several girls
calling him all of the time in my presence asking him to meet them at a bar. It
was constant.
Q. How long did you and he live together?
A. We have not lived together any since the date we were married, never.
Q: Did you live together before you were married?
A. A year. About a year prior to our marriage, we had lived together.
THE COURT: Y’all didn’t separate after the date of the marriage?
MS. PACE: Well, when we got married, I still lived in Gautier and he was
living in Orange Beach and we got married [at] the courthouse in Mobile. And
that night, I came back home to Gautier and he still resided in Orange Beach.
And we never lived together from that day of marriage.
(Emphasis added). Finally, she complained that David would not move her to Alabama after
they got married. While these actions were unacceptable and certainly harmful to the
marriage, I cannot find that these few allegations amount to habitual cruel and inhuman
treatment.
¶31.
I would further find that Sally failed to provide sufficient corroboration even if her
testimony was sufficient to prove habitual cruel and inhuman treatment. The law is that once
the spouse requesting a divorce on the basis of habitual cruel and inhuman treatment testifies
as to the offending spouse’s behavior, then his or her testimony must be corroborated to
12
provide a sufficient basis for relief. Heatherly v. Heatherly, 914 So. 2d 754, 757 (¶12) (Miss.
Ct. App. 2005).
¶32.
Garrison, Sally’s witness, testified that she had known Sally since 2000 and thought
of her as an adopted daughter. Garrison knew David but only though Sally. She did not have
much contact with David. She testified that her observation of Sally and David’s marriage
was “a lot of turmoil” and “a bad drinking problem” on behalf of David. However, she
testified that she did not personally see David drinking during the couple’s marriage.
According to Garrison’s personal observations of David between April and June 2002, David
flirted with other women and acted like he was single. It was her belief that most people did
not know he was married to Sally. She testified that Sally was very excited when she married
David and wanted to move to Alabama to be with him. However, David would make excuses
and his plans to move her never materialized. She observed that Sally became very upset over
David’s actions and saw her physician complaining of anxiety and depression. Garrison
admitted that Sally had these feelings before she married David. Sally’s attorney attempted
to call another witness, Gunter Bosarge, but the chancellor interrupted, saying, “I don’t need
to hear from him. I think you’ve proved your case.” Regardless, even if all of Sally’s
allegations are corroborated by the witness who was not allowed to testify, a divorce based
on habitual cruel and inhuman treatment is still not warranted.
¶33.
I agree with the chancellor that this couple should be granted a divorce. However, the
supreme court has repeatedly held:
Divorce is a creature of statute; it is not a gift to be bestowed by the chancellor
based upon a perception that declining to grant the divorce will not restore the
couple to a harmonious relationship. It is a statutory act and the statutes must
13
be strictly followed as they are in derogation of the common law.
Massingill v. Massingill, 594 So. 2d 1173, 1178 (Miss. 1992) (quoting Kergosien v.
Kergosien, 471 So. 2d 1206, 1210 (Miss. 1985)). It is apparent that the chancellor made a
hasty decision in granting this divorce, even to the point of cutting off one witness’s testimony
before it started. While a divorce may have been warranted on a different ground, such as
desertion, had it been properly pleaded, it was not warranted on the ground of habitual cruel
and inhuman treatment.
IRVING, GRIFFIS AND ROBERTS, JJ., JOIN THIS SEPARATE OPINION.
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