James S. Wells, Jr. v. Kathryn M. Wells

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

NO. 2023-CA-00674-COA

JAMES S. WELLS, JR. APPELLANT

v.

KATHRYN M. WELLS APPELLEE

DATE OF JUDGMENT: 02/24/2023
TRIAL JUDGE: HON. ROBERT Q. WHITWELL
COURT FROM WHICH APPEALED: LAFAYETTE COUNTY CHANCERY
COURT
ATTORNEYS FOR APPELLANT: EDWARD DUDLEY LANCASTER
CARNELIA PETTIS-FONDREN
ATTORNEYS FOR APPELLEE: PRISCILLA M. GRANTHAM ADAMS
CHRISTI R. McCOY
NATURE OF THE CASE: CIVIL - DOMESTIC RELATIONS
DISPOSITION: REVERSED AND REMANDED - 09/10/2024
MOTION FOR REHEARING FILED:

BEFORE CARLTON, P.J., McDONALD AND McCARTY, JJ.

McDONALD, J., FOR THE COURT:

¶1. James Wells Jr. appeals from the Lafayette County Chancery Court’s judgment

granting a divorce to his wife Kathryn Wells and a judgment divesting him of his interest in

92.5 acres of property. James argues (1) that the chancery court lacked personal jurisdiction

over him because Kathryn failed to prove service of the summons and complaint upon him

and (2) that this failure resulted in his inability to present evidence, which led to the chancery

court inequitably dividing the parties’ marital assets and improperly divesting him of

property. Finding the evidence does not support the chancery court’s finding that James was

properly served, we reverse the chancery court’s judgments and remand for further
proceedings.

FACTS

¶2. On October 7, 2022, Kathryn sued James for divorce in the Lafayette County

Chancery Court alleging grounds of habitual cruel and inhuman treatment, including spousal

domestic abuse, and habitual and excessive drug use. In her divorce complaint, Kathryn

generally requested that the chancery court grant her a divorce and equitably divide the

marital assets of the parties. She did not identify what the marital property included.

¶3. On October 14, 2022, the clerk issued a summons to James pursuant to Rule 4 of the

Mississippi Rules of Civil Procedure.1 Specifically, the summons contained James’s address

in Oxford, Mississippi, and stated:

NOTICE OF DEFENDANT

THE COMPLAINT WHICH IS ATTACHED TO THIS SUMMONS IS
IMPORTANT AND YOU MUST TAKE IMMEDIATE ACTON TO
PROTECT YOUR RIGHTS.

You are required to mail or hand deliver a copy of a written response
to the Complaint to Priscilla Grantham, the attorney for Plaintiff, whose
address is P.O. Box 928, Oxford, Mississippi 38655. Your response must be

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Rule 4 states in part:

(a) Summons: Issuance. Upon filing of the complaint, the clerk shall forthwith
issue a summons. . . .

(b) Same: Form. The summons shall be dated and signed by the clerk, be
under the seal of the court, contain the name of the court and the names of the
parties, be directed to the defendant, state the name and address of the
plaintiff’s attorney, if any, otherwise the plaintiff’s address, and the time
within which these rules require the defendant to appear and defend, and shall
notify him that in case of his failure to do so judgment by default will be
rendered against him for the relief demanded in the complaint.

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mailed or delivered within thirty (30) days from the date of delivery of this
Summons and Complaint or a Judgment by default may be entered against you
for the money or other things demanded in the Complaint. You must file the
original of your response with the Clerk of this Court within a reasonable time
afterward.

¶4. On October 29, 2022, Deputy Billy Rodela of the Lafayette County Sheriff’s

Department allegedly served James. (Although Deputy Rodela completed an unsworn return

and dated it October 29, 2022, the return was not filed in the chancery court until months

later on March 16, 2023, after the divorce hearing was held.) James did not file a response

to the divorce complaint within thirty days of service, and on January 10, 2023, Kathryn

obtained an order setting the matter for trial. This order was not sent to James.

Hearing on Divorce Complaint

¶5. On February 21, 2023, the chancery court conducted a hearing on Kathryn’s divorce

complaint. The transcript shows that at the beginning of the hearing, the chancery court

asked if James Wells was present; Kathryn’s attorney replied that he was not. The court then

proceeded to hear testimony from Kathryn. The transcript does not reflect whether the

chancery court checked the court file to insure that James had been served, nor did the

chancellor or the bailiff call for James in open court.

¶6. The only witness to testify was Kathryn, who presented a temporary restraining order

issued from justice court to corroborate her claims of domestic violence and habitual cruel

and inhuman treatment. Kathryn testified that she and James married in 1997 and separated

on January 18, 2022. They had one child together, Trey, who at the time of the proceedings

was twenty-five years old and still lived with Kathryn. Kathryn testified that she was a nurse

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and that although James provided handyman services, he was not regularly employed. He

received no disability, retirement, or social security benefits.

¶7. Kathryn said that she had called the police to her home several times over the past

year because her husband attempted to “physically menace” her and placed her in fear of

imminent serious bodily injury. She said James had shotguns in the home and in his vehicle,

and he had communicated verbally and in writing to her that he was going to shoot and kill

her. James stalked her by staying at his sister’s house across the street from Kathryn’s home,

where he watched her with binoculars and a spotlight. She said this type of behavior had

begun in May 2021. Because of these threats, Kathryn said she did nothing alone and relied

on her son to take her to and from work and to the grocery store.

¶8. Kathryn said that when James assaulted her in May 2022, she obtained a temporary

restraining order (TRO) against him, which Kathryn said James had violated three times. On

one occasion, when he blocked the driveway and refused to let her leave for work, Kathryn

had to call the police to make him leave. At that point Kathryn took all James’s guns and put

them in her daughter and son-in-law’s house in Senatobia for safekeeping.2 After this

incident, Kathryn said James’s sister-in-law called the police to anonymously report that

James had purchased a gun without a serial number and that he was threatening to kill

Kathryn and Trey. The next day, James was arrested for disturbing the peace. Based on

these incidents, Kathryn’s TRO was extended for ninety days but was never made

2
Kathryn testified that she and James had only one child together; the daughter she
referred to could be from another marriage or relationship.

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permanent.3

¶9. The court asked Kathryn what relief she wanted. Her attorney responded for her,

saying that she wanted “the marital property, including the real property,” and “to be free of

her husband and this marriage.” The court asked if the house was the only asset they had and

Kathryn’s attorney responded that all personal property had already been divided, and there

was no cash in the joint bank accounts. Kathryn currently drove a 2003 Hyundai Sonata that

Trey had purchased at an auction. James drove a 2008 Silverado truck that was titled in both

parties’ names and was paid off.4 Kathryn also had a tractor, purchased in both names, that

she said she had been paying on for seven years, and it was almost paid off.

¶10. Kathryn said that James was living in a “pull-behind” camper on a neighbor’s property

down the road. Her attorney told the court that Kathryn and Trey were living in a trailer,

which was titled in James’ name, located on 92.5 acres of property that was in the names of

James and his son, Trey.5 Kathryn testified that she and James had sold property in town and

began building a home on the 92.5 acres. The attorney said that the parties had intended for

the son to live there after they passed away. However, in light of the divorce, the attorney

said,

3
Kathryn’s attorney told the court that they had decided to proceed with the divorce
instead of pursuing a permanent restraining order because, in her view, James had already
violated the TRO multiple times and it appeared to actually exacerbate his behavior.
4
This truck was purchased for $18,000 in 2015.
5
No deed was admitted into evidence so it is unclear exactly how the title of the
property was held. However, the chancellor stated in the record that he understood that the
son had a one-half interest and James had a one-half interest in the 92.5 acres and, that the
parties “have a house and land that is in the husband’s name and the son’s name, Trey.”

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I would like to divest Mr. Wells of the property, and the son, Trey, can execute
a deed with a life estate to Ms. Wells, which is what he and Ms. Wells would
like to do.

Although the home was not finished, Kathryn said that when it was, James could have the

trailer that she and Trey were living in. The chancellor asked if Kathryn knew the value of

any of this property—the trailer, “any of it.” Kathryn said that she did not, and no valuation

was ever produced. At the end of the hearing, the chancellor stated that he intended to divest

James of his one-half interest in the house and land, but James could have the trailer if he

moved it off the land.

¶11. On February 21, 2023, the chancellor signed an order granting the divorce, finding

that James had committed domestic abuse against Kathryn for a continued period during the

marriage. The chancellor also stated in his order that the “Plaintiff shall be granted exclusive

ownership, use, and possession of the 92.5 acres,” and the “Defendant shall be divested of

any and all title, right, and interest of said property. This [c]ourt will enter a separate Order

divesting Defendant of title[.]” The divorce judgment also allowed James to keep the trailer

if he wanted, but he would be required to pay for it to be removed from the property within

sixty days, or else Kathryn could dispose of it. The chancellor further ordered that James

would maintain possession and ownership of the 2008 Silverado, and Kathryn would

maintain possession and ownership of the 2003 Hyundai. Lastly, the chancellor entered an

injunction against James, ordering him not to go within 500 yards of Kathryn except for the

purpose of moving the trailer. Two days later, on February 23, 2023, the court signed a

separate judgment divesting James of title to the 92.5 acres. Both judgments were entered

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on February 24, 2023.

Motion to Set Aside

¶12. Following the entry of these judgments on February 24, 2023, on March 13, 2023,

James filed a motion to set both aside, arguing that he had not been properly served. He

attached to the motion a copy of the docket, which did not reflect any return of service being

filed. The docket showed that the divorce complaint had been filed on October 7, 2022, and

that the summons had been issued on October 14, 2022. James further argued that he did not

receive proper notice of the date that the divorce matter would be heard.

¶13. On March 13, 2023, James also filed an answer to Kathryn’s divorce complaint and

a counterclaim for a divorce from Kathryn on the grounds of adultery and habitual cruel and

inhuman treatment. He pleaded that “the parties own real property at/in Oxford, Mississippi

that he [James] had owned prior to the marriage and [that the] property has not been

commingled.”

¶14. On May 8, 2023, Kathryn filed a motion to dismiss James’s motion to set aside the

February 2023 judgments. She argued that James was personally served with the Rule 4

summons and a copy of the complaint by Deputy Billy Rodela of the Lafayette County

Sheriff’s Office on October 29, 2022. She attached a more recent copy of the docket, which

reflected that the return was filed with the court on March 16, 2023, as well as a copy of this

return that Rodela had completed and signed. Kathryn said that “[d]ue to inadvertence[,] the

return was not filed immediately after the summons was served.” Kathryn said that James

had been properly served before the divorce hearing, and that Rule 4(f) states that “[f]ailure

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to make proof of service does not affect the validity of the service.” Kathryn further argued

that because James was properly served but failed to timely answer, he was not entitled to

notice of subsequent hearings.

¶15. The court heard James’s motion to set aside the February 2023 judgments on May 10,

2023. During this hearing, James called his nephew, Samuel Lee Jones, who testified that

James was living with him and his mother at the time the deputy came to serve James. James

was on the porch when the deputy came, and Samuel was inside. After the deputy left, James

came inside with the papers that were given to him and showed them to Samuel. Samuel

testified that the “papers” consisted of only the complaint; there was no summons attached.

Samuel identified the complaint that was served and testified that because he helped his uncle

with paperwork, he kept the complaint and brought it to court for the hearing. The complaint

Samuel brought was entered into evidence. When shown the Rule 4 summons, Samuel was

emphatic that it was not attached to the complaint James was served.

¶16. James also called Linda Wells Jones, who was both his sister and Samuel’s mother.

Linda testified that she was also present on the day that James was served with the complaint.

Linda said she and James were on the porch when the deputy came the first time and served

James with paperwork. Linda confirmed that the summons was not attached to the complaint

that James received. She said they were not aware when James needed to be in court, or they

would have been there. She confirmed that her son helped James out and kept James’s

paperwork. On cross-examination, Linda testified that when he got the papers from the

deputy, James commented that he had lost everything. After further questioning, Linda

8
indicated that James may have made this comment when a deputy came another time and

perhaps brought James a copy of the final judgment of divorce.

¶17. Linda also testified that the 92.5 acres was inherited land, “so that was my land,

too—well not on paper, but I’m part of the family. It was my daddy that bought it and left

it to Jimmy.” She later clarified that the land was deeded to her brother (James) and James’s

son. Thus, she had no personal interest in the property. Regardless, no deed was presented.

¶18. After Linda, James testified that the deputy only served him with “one thing, and

that’s the papers—the October papers.” He said he found out that the divorce had been

granted when he went to the house and his wife “came outside yelling and screaming and told

me to get out of here[;] that it’s her house. The judge gave her her house—my houses and

gave Trey all of my land.” Upon hearing this, James went to his sister’s house and called the

chancery court. He learned that the divorce hearing was held on February 21, 2023, and the

clerk told him that “in fourteen or fifteen days, it would have been legal.” James said he then

contacted an attorney “to stop it before it became final.”

¶19. James confirmed that in October 2022, a deputy came to his sister’s house and gave

him only the divorce complaint. His sister was with him on the porch. They both then went

inside where Samuel was cooking, and he showed the “papers” to him. James said that they

discussed the complaint, but he was not worried about it at the time because “it didn’t have

any dates on it to go forward and nothing like that . . . it just said what she wants.” When

shown the Rule 4 summons, James denied receiving it.6 Because the divorce complaint

6
During direct and cross-examination, James indicated that he could not read the
paperwork because of his poor eyesight. When provided with reading glasses, and after

9
contained no dates telling him when or where to appear, James explained, “we weren’t

worried about it” at that time. James admitted that deputies had been out to talk to him about

other matters but only once about the divorce. He also said that he had not spoken to his wife

in two years.

¶20. James also testified that his wife was selling off items, such as the four-wheeler, and

that $50,000 to $80,000 worth of antique furniture was gone from the house. James also said

that he put over $400,000 into the construction of the new home. He said the divorce

complaint asked for an equitable division of the property, but he got nothing. In addition,

he said he never received a copy of the divorce judgment.

¶21. Kathryn called no witnesses to testify.

¶22. James’s attorney argued to the court that James never received a summons and that

when James retained her as his attorney, she checked and found no proof in the case file of

any service. There was also no proof that James had been sent a copy of the divorce

judgment so that she could proceed with the appropriate motions within the ten-day time

period. James’s attorney noted that in the divorce complaint, Kathryn asked for an equitable

division of the marital assets, but she later asked to be awarded the entirety of the marital

assets, which she pretty much received.

¶23. During her argument, Kathryn’s attorney said that the sheriff’s office usually files the

return, but in this case, the “return had been returned back to us, and we were unaware that

there was a cross-up.” The attorney told the court that the return had in fact been sitting in

having read aloud the language in the Rule 4 summons, James distinctly denied ever being
given that document.

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their file. Kathryn’s counsel pointed out the inconsistencies among the testimonies of

Samuel, Linda, and James, and argued that their testimonies were all self-serving so that they

could “get back his Pa-Pa’s land.” Concerning the equitable division of property, Kathryn’s

attorney argued that because Kathryn worked and James was unemployed, the court could

find it equitable to give everything to Kathryn.

¶24. At the close of arguments, the court ruled on the record that James had not presented

enough proof to rebut the deputy’s signed return of service. Concerning the division of the

property, he said that James was given the 2008 Silverado and the trailer. Accordingly, on

the record, the court denied James’s motion to set aside the February 2023 judgments and

entered a written order on May 12, 2023.7

¶25. James filed a notice of appeal on June 8, 2023. On appeal, James argues that (1) he

was not properly served under Rule 4 of the Mississippi Rules of Civil Procedure, and (2)

due to this failure to be properly served, he was unable to present contradicting evidence, and

the chancery court failed to equitably divide the parties’ marital property.

STANDARD OF REVIEW

¶26. We will not disturb a chancellor’s findings of fact “unless the chancellor’s decision

is manifestly wrong or unsupported by substantial evidence.” Pritchard v. Pritchard, 282

So. 3d 809, 812 (¶11) (Miss. Ct. App. 2019). But “[w]hen reviewing questions concerning

jurisdiction, this Court employs a de novo review.” Id. (citing Sanghi v. Sanghi, 759 So. 2d

7
After the hearing on James’s motion, the court heard a matter in a different domestic
abuse case Kathryn had pursued against James. Those proceedings are irrelevant to the
appeal in this case.

11
1250, 1252 (¶7) (Miss. Ct. App. 2000), overruled on other grounds by Bolivar v. Bolivar,

378 So. 3d 433, 439 (¶¶23-24) (Miss. Ct. App. 2024)). Sufficiency of process is a

jurisdictional issue. Clark v. Clark, 43 So. 3d 496, 499 (¶9) (Miss. Ct. App. 2010). Per

well-established precedent involving domestic disputes, the chancellor’s conclusions of law

receive de novo review. Chesney v. Chesney, 910 So.2d 1057, 1060 (¶5) (Miss. 2005) (citing

Southerland v. Southerland, 875 So. 2d 204, 206 (¶5) (Miss. 2004)). Again, however, “[a]

chancellor’s findings of fact will not be disturbed unless manifestly wrong or clearly

erroneous.” Sanderson v. Sanderson, 824 So. 2d 623, 625 (¶8) (Miss. 2002) (quoting

Consol. Pipe & Supply Co. v. Colter, 735 So. 2d 958, 961 (¶13) (Miss. 1999)). “With regard

to service of process, this court applies an abuse-of-discretion standard of review to the trial

court’s findings of fact.” Long v. Vitkauskas, 228 So. 3d 302, 304 (¶5) (Miss. 2017).

DISCUSSION

¶27. In his motion to set aside the February 2023 judgment of divorce and judgment

divesting him of his interest in 92.5 acres of property, James claimed that he was served only

the complaint and not the summons. James contended that without sufficient service of

process, the court lacked personal jurisdiction, making the judgments void. The chancery

court denied his motion, and on appeal, James argues that the chancery court abused its

discretion and that he presented sufficient evidence to rebut the presumption of service raised

by the return of the process server.

¶28. “Service of process is the physical means by which personal jurisdiction is asserted.”

Webster v. Fannings, 311 So. 3d 1157, 1160 (¶7) (Miss. 2021). “In the absence of proper

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service of process, the court lacks jurisdiction.” Villavaso v. S.H. Anthony Inc., 309 So. 3d

587, 593 (¶19) (Miss. Ct. App. 2020). “It is well settled that in divorce cases, Rule 4 of the

Mississippi Rules of Civil Procedure provides for the means of service of the original

complaint and the form of the accompanying summons.” Clark, 43 So. 3d 499 (¶11). Rule

4 includes the forms and procedure by which a plaintiff may serve a defendant in an action.

¶29. This requirement is found in Rule 4(b), which states:

The summons shall be dated and signed by the clerk, be under the seal of the
court, contain the name of the court and the names of the parties, be directed
to the defendant, state the name and address of the plaintiff’s attorney, if any,
otherwise the plaintiff's address, and the time within which these rules require
the defendant to appear and defend, and shall notify him that in case of his
failure to do so judgment by default will be rendered against him for the relief
demanded in the complaint. . . . Summons served by process server shall
substantially conform to Form 1A. Summons served by sheriff shall
substantially conform to Form 1AA.

M.R.C.P. 4(b). The Form 1AA (for a sheriff) referred to in Rule 4 states the following in

part:

THE COMPLAINT WHICH IS ATTACHED TO THIS SUMMONS IS
IMPORTANT AND YOU MUST TAKE IMMEDIATE ACTION TO
PROTECT YOUR RIGHTS.

You are required to mail or hand-deliver a copy of a written response to the
Complaint to __________, the attorney for the Plaintiff(s), whose post office
address is __________, and whose street address is __________. Your
response must be mailed or delivered within (30) days from the date of
delivery of this summons and complaint or a judgment by default will be
entered against you for the money or other things demanded in the complaint.

You must also file the original of your response with the Clerk of this Court
within a reasonable time afterward.

¶30. Rule 4(a)(2) requires that the person served be given both a copy of the summons and

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a copy of the complaint, stating, “The person to whom the summons is delivered shall be

responsible for prompt service of the summons and a copy of the complaint.” M.R.C.P.

4(a)(2). Service of both the summons and the complaint is needed for jurisdiction to attach

unless the defendant voluntarily appears. Richard v. Garma-Fernandez, 121 So. 3d 929, 933

(¶21) (Miss. Ct. App. 2013). Mississippi Rule of Civil Procedure 4(a)(2) is similar to Rule

4(c)(1) of the Federal Rules of Civil Procedure, which also requires that a person be served

with both a copy of the summons and a copy of the complaint.8 Federal courts have faced

the issue of service of one without the other, and as one court plainly stated, “[s]ervice of a

complaint without a summons is improper.” Cherry v. Spence, 249 F.R.D. 226, 228

(E.D.N.C. 2008) (also stating “[e]ach defendant is entitled to a summons or a copy thereof”).

¶31. Under Mississippi law, personal service of process may be made by the sheriff.

M.R.C.P. 4(c)(2). If service is made by the sheriff, he or his deputies must comply with Rule

4(c)(2) concerning the filing of the proof of service. This rule states:

(2) By Sheriff. A summons and complaint shall, at the written request of a
party seeking service or such party’s attorney, be served by the sheriff of the
county in which the defendant resides or is found, in any manner prescribed
by subdivision (d) of this rule. The sheriff shall mark on all summons the date
of the receipt by him, and within thirty days of the date of such receipt of the
summons the sheriff shall return the same to the clerk of the court from which
it was issued.

M.R.C.P. 4(c)(2). Rule 4(c)(1) also allows for service to be made by a process server who

is not a party and not under the age of eighteen. M.R.C.P. 4(c)(1). Rule 4(f) provides that

8
In the next subsection on discussing service of process, Federal Rule of Civil
Procedure 4(c)(2) states, “Any person who is at least 18 years old and not a party may serve
a summons and complaint.”

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“if service is made by a person other than a sheriff, such person shall make affidavit thereof.”

M.R.C.P. 4(f). The rule further states, “Failure to make proof of service does not affect the

validity of the service.” Id. “However, the absence of some proof of the receipt of a

summons makes the notice questionable.” Smith v. First Bank, 195 So. 3d 790, 793 (¶10)

(Miss. Ct. App. 2015).

¶32. The rules on service of process are to be strictly construed. Wharton v. State ex rel.

Pearl Police Dep’t, 349 So. 3d 197, 205 (¶23) (Miss. Ct. App. 2022); Townsend v. What a

Combo Inc., 281 So. 3d 43, 46 (¶8) (Miss. Ct. App. 2019); Birindelli v. Egelston, 404 So. 2d

322, 323-24 (Miss. 1981). If our Rules of Civil Procedure have not been complied with in

this context, the court is without jurisdiction unless the defendant appears of his own volition.

Kolikas v. Kolikas, 821 So. 2d 874, 878 (¶16) (Miss. Ct. App. 2002) (citing Amer. Cable

Corp. v. Trilogy Commnc’s Inc., 754 So. 2d 545, 549 (¶7) (Miss. Ct. App. 2000)). In

Kolikas, the husband filed for divorce against his non-resident wife and published the

summons in the newspaper, but neither he nor the clerk ever mailed the summons to the wife.

Id. at 876 (¶3). This Court affirmed the trial court’s ruling that the wife had not been

properly served under our Rules. Id. at 878 (¶18).

¶33. If a process server has properly executed a return, there is a presumption that service

of process has occurred; however, “this presumption that service has been effected is

rebuttable through the use of extrinsic evidence, including the testimony of the party who is

contesting service.” Collins v. Westbrook, 184 So. 3d 922, 929 (¶18) (Miss. 2016) (citing

McCain v. Dauzat, 791 So. 2d 839, 842 (Miss. 2001)). In Collins, the process server swore

15
in his return of service of process and testified in court that he served process on an

individual in a pizzeria, who said he was Dr. Toikus Westbrook. Collins, 184 So. 3d at 927-

28 (¶¶11-12). However, Toikus filed an affidavit saying that lived in New Orleans and was

never served. Id. at 928 (¶14). His father signed an affidavit saying that the process server

served him. Id. Based simply on the affidavits of two individuals, the trial court found that

Toikus had rebutted the presumption and countered the testimony of the process server. Id.

at 928-29 (¶¶15, 18). We affirmed the trial court’s ruling. Id. at 929 (¶18).

¶34. In addition,

actual notice does not cure defective process. Even if a defendant is aware of
a suit, the failure to comply with rules for the service of process, coupled with
the failure of the defendant voluntarily to appear, prevents a judgment from
being entered against him.

Clark, 43 So. 3d at 499 (¶12); Blakeney v. Warren County, 973 So. 2d 1037, 1040 (¶13)

(Miss. Ct. App. 2008). In Pritchard, 282 So. 3d at 817 (¶31), we further noted that “a

defendant is ‘under no obligation to notice what is going on in a cause in court against him,

unless the court has gotten jurisdiction of him in some manner recognized by law.’”

(Quoting Kolikas, 821 So. 2d at 879 (¶32)). When service of process is not achieved, the

chancellor lacks personal jurisdiction, and the divorce is void. Id. We further held that

[w]hen a divorce is invalidated, all matters decided as a result of the divorce
decree are null and void and should be brought in another hearing. Peterson
v. Peterson, 797 So. 2d 876, 879 (¶12) (Miss. 2001). Accordingly, the
equitable distribution of marital assets is also null and void, and a new hearing
must be held.

Id. at (¶33).

¶35. In this case, James testified under oath that although the deputy served him with a

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copy of Kathryn’s complaint, no summons was attached. James stated that he was at his

sister Linda’s home when the deputy gave him the complaint. He went inside where his

nephew Samuel was cooking, and James asked him to look at the “papers” because James

had difficulty reading such documents. James said that there was no paper telling him when

or where to appear, so they “weren’t worried about it.” In addition to James’s testimony,

James called his sister Linda to testify as well as Samuel. They confirmed that James was

only given a complaint. Samuel kept the complaint James was served, which did not have

any summons attached. Samuel brought it to court, and it was entered into evidence. When

shown the summons, all three stated they had never seen it.

¶36. Samuel brought the “papers” James had been served to the attorney James eventually

hired. There was no summons attached to the complaint, and when the attorney checked the

court docket, she found that there was no return of service of process filed with the court.

To explain this, Kathryn’s attorney told the court that the deputy sent the return to her,

instead of filing it with the clerk as the Rules required. Kathryn’s attorney said that the return

was actually in her file.9 We find that the testimony of three witnesses and the documentary

evidence of a complaint without a summons presented by James was sufficient to rebut the

presumption of proper service.

¶37. The dissent disagrees and implies that in this case the chancery court ruled against

9
We note that the transcript of the divorce hearing does not indicate that the court
checked the court file for service of process and that Kathryn’s attorney did not present the
return to the court if it indeed was in her file at the time. Yet the court proceeded to hear the
matter and rule without confirming that James had, in fact, been personally served and that
the court had personal jurisdiction.

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James because it found his testimony and his witnesses’ testimony lacked credibility.

However, the chancery court made no such finding in this case. The dissent would require

us to assume the chancellor found all three witnesses to be unbelievable simply because the

chancellor ruled against James, citing Rankin v. Rankin, 323 So. 3d 1073 (Miss. 2021). In

Rankin, the chancery court heard extensive testimony from both the wife, Kemily, and the

husband, Kelvin, in a divorce case and held that Kemily had failed to produce sufficient

evidence of habitual cruel and inhuman treatment. Id. at 1080 (¶17). Even though the

chancellor gave no indication that she disbelieved Kemily or failed to find her credible, id.

at 1079 (¶14), the chancellor still had Kelvin’s testimony to weigh against Kemily’s

testimony to determine whether she had presented sufficient proof. Id. at (¶17). Here,

Kathryn presented no testimony or evidence in opposition to the testimony and evidence

James had presented at the hearing. There was no opposing witness for the chancellor to

observe and evaluate and determine who was more credible.

¶38. Nor are the facts of this case similar to those cases cited by Kathryn where the courts

did determine the credibility of a witness. In Villavaso, 309 So. 3d 587 at 591 (¶¶7-8), the

trial court had before it contradictory and competing affidavits and testimony. Villavaso’s

testimony and the affidavit of his girlfriend contradicted each other concerning the dates that

the process server attempted service. Id. at 594 (¶22). In addition, in response to Villavaso’s

affidavits, Anthony presented an affidavit from the process server about his attempts to serve.

Id. The court there also had before it subsequent motions Villavosa filed in which he

admitted being served with process, totally contradicting his prior denial of service. Id. at

18
591 (¶10).

¶39. Unlike Villavosa, in this case, James, Linda, and Samuel testified consistently as to

what happened on the day James was served, and all testified that James was only given the

complaint. Kathryn presented nothing to rebut this testimony.10 The court did not find that

James or his witnesses were not credible, as the trial court did in McCain, which stated on

the record that the court “did not believe a word” of the testimony offered by the party

arguing he was not properly served. McCain, 791 So. 2d at 842 (¶8). In this case, the

chancellor said several times that he relied on the return, and his only comment on the

testimony was to point out that Samuel was a relative who gives James advice. But the

chancellor did not find Samuel’s testimony was suspect or not credible because of that, as

the dissent implies. The Mississippi Rules of Evidence provide that every person, with few

exceptions, is competent to be a witness, MRE 601, if he or she has personal knowledge of

a matter, MRE 602, and testifies under oath, MRE 603. A witness’s blood relationship to a

party does not disqualify him from testifying about facts that the witness knows, and we

disagree with any troubling assumption that family members lie under oath.

¶40. Moreover, the sufficiency of evidence to rebut a presumption of service of process

does not rely on the credibility of witnesses alone. Here, in addition to witness testimony,

James produced the original “papers” he was given, which did not have a summons attached.

His attorney’s check of the docket indirectly confirms that the “papers” James received and

10
Even though the chancellor said that “the papers are there, and the deputy said he
served him,” there was no affidavit or testimony by the deputy presented—only his signature
on the process return.

19
gave her did not contain a summons. The attorney found no return of service on the docket,

prompting the filing of the motion to set aside the February 2023 judgments. Oddly, the

deputy sheriff’s return was sent to Kathryn’s attorney, who then filed it a month after the

judgments in question were rendered. These circumstances, coupled with the proof presented

by James and the lack of evidence rebutting that proof, lead us to conclude that the chancery

court manifestly erred in finding that James had not rebutted the presumption of service.11

¶41. We also disagree with the dissent’s position that Kathryn had no obligation to present

any evidence because the sheriff’s return created a presumption of service that James was

required to rebut. When James presented the testimony of three witnesses to challenge the

service of process, the burden shifted to Kathryn to respond to James’s proof. The

Mississippi Supreme Court noted this burden-shifting in Long v. Vitkauskas, 228 So. 3d 302

(Miss. 2017). In that case, the parties disputed whether the person served was the agent of

the party sued. Id. at 305 (¶9). The Supreme Court stated that if the party had presented

proof that the person who received process was not that party’s agent, “the burden then

would have shifted to Long to prove ‘Mary’ was an authorized agent.” Id. Although the type

of service (non-resident service by certified mail) in Long differs from the type of service

here (personal service by deputy sheriff), the principle remains the same: when the defendant

presents evidence to rebut the presumption of service, the burden shifts back to its proponent.

11
Even the Supreme Court in Rankin still required trial courts to examine all the
evidence. Rankin, 323 So. 3d at 1079 (¶18). Rankin’s discussion on witness credibility
should not be taken to mean that because the court ruled in favor of one party, it must have
found all the evidence presented by the other party incredible. This would preclude a
challenge to any court ruling.

20
Moreover, the return of service alone from which the presumption arose does not rebut the

presumption; other evidence is required. See Priede v. Jones, 282 So. 3d 1266, 1271 (¶¶14-

15) (Miss. Ct. App. 2019) (affirming finding of failure to serve process when plaintiff failed

to produce any evidence to contradict defendant’s affidavit that she did not receive process,

that she did not live at the address, and that she was not married to the individual who

allegedly received process). Indeed, neither of the cases the dissent cites, Villavaso and

McCain v. Douzat, 791 So. 2d 839 (Miss. 2001), simply relied on the return of service; both

obtained and entered affidavits from the process server and did not rely simply on the return

itself. Villavaso, 309 So. 3d at 591 (¶8); McCain, 791 So. 2d at 842 (¶8). Although James

could have called the process server as a witness, he presented other proof, and Kathryn had

an obligation to present some evidence in response other than the return itself.

¶42. Given the facts and circumstances of this case, we find that the chancery court’s

holding that James was served with both the summons and the complaint was not

substantiated by the evidence in the record. Although Kathryn presented the return of service

of process, James presented sufficient evidence to rebut the presumption that he was served

with both the summons and the complaint. Because James was not served, the chancery

court lacked personal jurisdiction over him. Clark, 43 So. 3d at 501-02 (¶22) (“[W]e find

the chancellor, just as in Kolikas, did not acquire personal jurisdiction over the defendant

because service [of process] in a manner recognized by law was never achieved.”) (citing

Kolikas, 821 So. 2d at 879 (¶32)). Consequently, the divorce and property divestment

judgments rendered by the court in this case are void. “A judgment is deemed void if the

21
court rendering it lacked jurisdiction.” Morrison v. Miss. Dep’t of Hum. Servs., 863 So. 2d

948, 952 (¶13) (Miss. 2004). “Even if the allegations in the divorce complaint are

established by the evidence, the chancellor must also have proper jurisdiction over the

parties.” Clark, 43 So. 3d at 501 (¶20). Accordingly, the chancery court’s judgment of

divorce, including the division of the parties’ assets, and the judgment divesting James of

title to the 92.5 acres are void. We therefore reverse and remand for further proceedings.

¶43. On remand, we instruct the chancery court to insure that any division of the parties’

property be made according to the factors articulated in Ferguson v. Ferguson, 639 So. 2d

921, 928 (Miss. 1994). In both its ruling during the divorce hearing and its written order, the

chancery court in this case failed to even mention any of the relevant Ferguson factors as a

basis for his division of the property. The Mississippi Supreme Court has held in no

uncertain terms that “[t]he failure to consider all applicable Ferguson factors is error and

mandates reversal.” Lowrey v. Lowrey, 25 So. 3d 274, 286 (¶29) (Miss. 2009). On remand

and rehearing of this matter, the chancery court shall perform the analysis necessary to

equitably divide the assets of the parties.

CONCLUSION

¶44. Because James provided sufficient evidence to rebut the presumption that he was

properly served with process, the chancery court erred by not setting aside the judgment of

divorce and the judgment divesting James of 92.5 acres of property. We find that the court

had no personal jurisdiction and that the two judgments are void. Accordingly, we reverse

the chancery court’s judgment of divorce and judgment divesting James of interest in the

22
92.5 acres. Moreover, on remand, should the chancery court grant the divorce, the court shall

include in its findings the bases for its equitable division utilizing the Ferguson factors.

¶45. REVERSED AND REMANDED.

CARLTON, P.J., WESTBROOKS AND McCARTY, JJ., CONCUR.
EMFINGER, J., CONCURS IN PART AND IN THE RESULT WITHOUT
SEPARATE WRITTEN OPINION. WILSON, P.J., DISSENTS WITH SEPARATE
WRITTEN OPINION, JOINED BY BARNES, C.J., LAWRENCE AND SMITH, JJ.

WILSON, P.J., DISSENTING:

¶46. The chancellor did not clearly err or abuse his discretion by finding that James failed

to rebut the presumption of service of process. Accordingly, the chancellor’s ruling should

be affirmed, and I respectfully dissent.

¶47. “When service of process is contested, the trial court must make findings to resolve

disputed issues of fact.” Span ex rel. Span v. Nichols, 306 So. 3d 781, 791 (¶33) (Miss. Ct.

App. 2020), cert. denied, 308 So. 3d 438 (Miss. 2020). “With regard to service of process,

this Court applies an abuse-of-discretion standard of review to the trial court’s findings of

fact.” Long v. Vitkauskas, 228 So. 3d 302, 304 (¶5) (Miss. 2017). “The trial court may make

such findings based on affidavits with or without live testimony or depositions.” Span, 306

So. 3d at 791 (¶33); see M.R.C.P. 43(c).

¶48. “If a process server has executed a return properly, there is a presumption that service

of process has occurred.” Collins v. Westbrook, 184 So. 3d 922, 929 (¶18) (Miss. 2016).

This presumption may be rebutted by extrinsic evidence, including testimony and affidavits.

Id. “Indeed, testimony by the contesting party, if believed, is sufficient to overcome the

presumption and to support a finding that she was not served.” Long, 228 So. 3d at 305 (¶9)

23
(emphasis added) (brackets and quotation marks omitted). “But the trial judge may find that

the testimony disputing proper service of process lacks credibility—and, thus, find that the

presumption of proper service of process has not been rebutted.” Villavaso v. S.H. Anthony

Inc., 309 So. 3d 587, 594 (¶21) (Miss. Ct. App. 2020) (citing McCain v. Dauzat, 791 So. 2d

839, 842 (¶8) (Miss. 2001)).

¶49. Here, Deputy Sheriff Billy Rodela executed a return stating that he “personally

delivered copies of the summons and complaint” to James on October 29, 2022. Thus, a

presumption arose that James was properly served. Collins, 184 So. 3d at 929 (¶18).

¶50. Indeed, James does not dispute that the deputy served him with the complaint. James

only denies that a summons was attached to the complaint. However, James and his two

relatives’ testimony was self-interested and, in some respects, confusing and inconsistent.

¶51. James’s nephew Samuel admitted that he did not see the deputy serve his uncle.

James was outside the house when he was served, and he brought the papers inside and

showed them to Samuel. Samuel testified that James showed him the complaint and that no

summons was attached to it. Samuel testified that he reviewed the paperwork with his uncle,

but he “was really just looking for a court date” so that his uncle “could go to court.”12

¶52. James also called his sister Linda (Samuel’s mother) as a witness. Linda felt like the

land at issue in the divorce “was [her] land, too,” though “not on paper.” She wanted “to get

that land back . . . to [her] family.” Linda testified that she witnessed the deputy serve James

with a complaint but no summons. However, on cross-examination, Linda testified that

12
A Rule 4 summons, of course, does not include a court date.

24
when the deputy served him, James said, “I’ve lost everything. We were supposed to go to

court.” Linda’s statement suggested that she was testifying about James’s receipt of the final

judgment of divorce, not the complaint. Linda was then asked about the papers James had

received in October 2022, and she said, “He got papers, but I don’t know what was what

because I didn’t -- it wasn’t any of my business. I didn’t get into it.” She later testified that

the papers James received in October 2022 “mentioned some material possessions that

[Kathryn] took,” but “[t]here was no court date on it,” and “[i]t was just a copy of what he

had lost.” Near the end of her cross-examination, Linda finally testified that she had

witnessed a deputy serve James with papers “[a]bout twice”; one time was when James said

he had “lost everything,” but she did not know what paperwork James received the other

time. On redirect, in response to a series of leading questions, Linda testified that she had

witnessed the deputy serve James with the complaint and that she had never seen the final

judgment of divorce until her testimony.

¶53. James testified that the deputy served him with the complaint but not a summons. He

also testified that he was “going blind,” and he had difficulty reading documents that were

shown to him. James said that when the deputy served him with the complaint, he (James)

reviewed it with Samuel and Linda, but they “weren’t worried about it” and said “it wasn’t

important” because it did not give him a date to “go to court.” James said the complaint was

not “legal” or “final” because it did not provide a court date. James said he thought the

complaint “was just part of it” and that it should have included “more,” although he “didn’t

know” what exactly he should have received. James also testified that he had never seen the

25
final judgment of divorce until his testimony in court. He said that Linda was “confused”

and that he did not say he had “lost everything” after being served by a deputy.

¶54. After listening to the witnesses, the chancellor found that James had not rebutted the

presumption of service. The chancellor found that the return signed by Deputy Rodela was

more credible than the denials of James and his witnesses.

¶55. Our Supreme Court has made clear that “[i]n a divorce proceeding, the chancellor is

the finder of fact, and the assessment of witness credibility lies within his sole province.”

Carambat v. Carambat, 72 So. 3d 505, 510 (¶24) (Miss. 2011) (emphasis added). “A

chancellor sits as a fact-finder and in resolving factual disputes, is the sole judge of the

credibility of witnesses.” Murphy v. Murphy, 631 So. 2d 812, 815 (Miss. 1994) (emphasis

added). It is also “for the chancellor to determine the . . . weight of [the] evidence.” Powell

v. Ayars, 792 So. 2d 240, 243 (¶6) (Miss. 2001). We “give[] deference to a chancellor’s

findings in regard to witness testimony, because”—unlike this Court—“the chancellor is able

to observe and personally evaluate the witnesses’ testimony and the parties’ behavior.”

McNeese v. McNeese, 119 So. 3d 264, 275 (¶32) (Miss. 2013) (quotation marks omitted).

¶56. Here, the chancellor was entitled to consider that the testimony of James and his

relatives was self-serving and potentially biased. See, e.g., Stevenson v. State, 738 So. 2d

1248, 1252 (¶19) (Miss. Ct. App. 1999) (noting that defense witnesses, “on the face of it,

were subject to claims of bias by virtue of their family and emotional ties to the defendant”);

Bergmann v. McCaughtry, 65 F.3d 1372, 1380 (7th Cir. 1995) (“[F]amily members can be

easily impeached for bias.”). Linda was not only James’s sister but also claimed that the

26
subject property “was [her] land, too.” Samuel was Linda’s son.13 The chancellor was also

entitled to consider the various inconsistencies and limitations of their testimony. The

chancellor did not clearly err or abuse his discretion by finding that James and his relatives’

testimony failed to rebut the presumption of service that arose from the sheriff’s return.

¶57. The majority opinion emphasizes that Kathryn did not offer testimony or affidavits

at the hearing. Ante at ¶¶40-41.14 But Kathryn was under no obligation to call witnesses or

produce additional evidence.15 The sheriff’s return itself was competent evidence of service.

13
By noting these witnesses’ self-interest and potential bias, I am not making a
“troubling assumption that family members lie under oath.” Ante at ¶39. These are simply
issues that the fact-finder may consider in evaluating witnesses’ credibility. Street v. State,
754 So. 2d 497, 502 (¶17) (Miss. Ct. App. 1999) (holding evidence that a “witness was
married to a member of the defendant’s gang” was properly admitted to show “bias,” and
“[i]t then became the role of the jury to assess what impact that information might have on
the believability of the witness” (emphasis added)). The chancellor, not this Court, is the
fact-finder in this case. I do not make any assumptions about these witnesses’ credibility.
Indeed, their credibility is not this Court’s concern because the chancellor “is the sole judge
of the credibility of witnesses.” Murphy, 631 So. 2d at 815.
14
The deputy was not required to file an affidavit. Only a private process server is
required to file an affidavit as proof of service. A sheriff’s return need not be sworn. See
M.R.C.P. 4(f).
15
I disagree that “the burden . . . shifted to Kathryn to respond to James’s proof.”
Ante at ¶41 (citing Long, 228 So. 3d at 305 (¶9)). In Long, service was attempted via
certified mail, and the certified mail return receipt was signed by an unidentified “Mary”
rather than by the defendant. Long, 228 So. 3d at 303 (¶2). The trial court found that
service was insufficient because Mary signed for the mail rather than the defendant. Id. at
(¶3). However, the Supreme Court reversed, holding that the defendant failed to rebut the
presumption of proper service because he presented no evidence that Mary was not his
agent. Id. at 305 (¶9). The Court stated that “[h]ad he done so, the burden then would have
shifted to [the plaintiff] to prove ‘Mary’ was an authorized agent of [the defendant].” Id.
Long is distinguishable from the present case. The proof of service in Long was simply
evidence that the process server sent the summons and complaint to the defendant at an out-
of-state address via certified mail. The proof of service was not evidence of Mary’s identity
or authority to accept service. Therefore, if the defendant had offered proof that Mary was

27
Indeed, it established a presumption of service that James was required to rebut. Collins, 184

So. 3d at 929 (¶18). In McCain, the Supreme Court rejected a similar argument that a trial

judge had abused his discretion by crediting a non-testifying process server’s affidavit over

the in-court testimony of the party denying service. McCain, 791 So. 2d at 842 (¶¶6-8). The

Court emphasized that if the party denying service wanted to challenge the process server’s

affidavit, he “had every right and opportunity to subpoena” and cross-examine the process

server, but he “failed to do so.” Id. at (¶8). The Court held that the trial judge did not abuse

his discretion by disbelieving the party’s in-court testimony and crediting the process server’s

affidavit. Id. Likewise, in this case, the chancellor did not abuse his discretion by crediting

Deputy Rodela’s signed return over the testimony of James and his relatives.

¶58. The majority opinion nonetheless “find[s]” that James’s evidence “was sufficient to

rebut the presumption of proper service.” Ante at ¶36. Absolutely, “testimony by the

contesting party, if believed, is sufficient to overcome the presumption.” Long, 228 So. 3d

at 305 (¶9) (emphasis added) (brackets omitted). But the trial judge is not required to believe

the witnesses disputing service or accept their claims at face value. “[T]he trial judge may

find that the testimony disputing proper service of process lacks credibility—and, thus, find

that the presumption of proper service of process has not been rebutted.” Villavaso, 309 So.

3d at 594 (¶21); accord McCain, 791 So. 2d at 842 (¶8). The important point is that the

chancellor—not this Court—“is the sole judge of the credibility of witnesses.” Murphy, 631

not his agent, the plaintiff would have needed to offer proof in response. Here, in contrast,
the signed sheriff’s return is itself evidence that, as stated therein, Deputy Rodela “personally
delivered copies of the summons and complaint on the 29th day of October, 2022, to: James
Wells.”

28
So. 2d at 815 (emphasis added). By reversing the chancellor’s determination, the majority

improperly assumes that role for itself.

¶59. The majority opinion also argues that we need not defer to the chancellor’s finding

that the presumption was not rebutted because the chancellor did not make on-the-record

credibility determinations. Ante at ¶¶37-39. However, the Supreme Court has held that we

should not reverse a chancellor’s findings “based on the absence of an express finding by the

chancellor regarding [a witness’s] credibility.” Rankin v. Rankin, 323 So. 3d 1073, 1078

(¶12) (Miss. 2021). In Rankin, the Supreme Court reversed this Court, stating:

The Court of Appeals’ decision is based on the absence of an express finding
by the chancellor regarding Kemily’s credibility. It is true that the chancellor
did not make a specific finding regarding Kemily’s credibility. In other words,
the chancellor did not specifically state that she failed to find Kemily’s
testimony credible. But a corollary principle is that with respect to issues of
fact where the chancellor made no specific finding, we are required to assume
that the chancellor resolved all such fact issues in favor of the appellee.

....

Here, . . . the chancellor gave no indication that she disbelieved Kemily or that
she failed to find her credible. But even in the absence of a specific, express
finding on Kemily’s credibility, we are required to assume that the chancellor
resolved this fact issue in favor of [the appellee].

Id. at (¶¶12, 14) (emphasis added) (citations, quotation marks, and brackets omitted). Here,

by finding that James failed to rebut the presumption, the chancellor necessarily found that

James and his witnesses were not credible. “[E]ven in the absence of a specific, express

finding on [the witnesses’] credibility, we are required to assume that the chancellor resolved

this fact issue in favor of [Kathryn].” Id. at (¶14). The chancellor did not clearly err or abuse

his discretion by finding that James had not rebutted the presumption of proper service.

29
Accordingly, the chancellor’s decision must be affirmed, and I respectfully dissent.

BARNES, C.J., LAWRENCE AND SMITH, JJ., JOIN THIS OPINION.

30