Jessica Lynn Tucker Tullos v. James Catlin Tullos

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

NO. 2016-CA-01117-COA

IN THE MATTER OF THE DISSOLUTION OF APPELLANT
THE MARRIAGE OF JAMES CATLIN TULLOS
AND JESSICA LYNN TUCKER TULLOS:
JESSICA LYNN TUCKER TULLOS

v.

JAMES CATLIN TULLOS APPELLEE

DATE OF JUDGMENT: 05/19/2016
TRIAL JUDGE: HON. GERALD MARION MARTIN
COURT FROM WHICH APPEALED: SMITH COUNTY CHANCERY COURT
ATTORNEYS FOR APPELLANT: W. TERRELL STUBBS
LAUREN ELIZABETH CAVALIER
ATTORNEY FOR APPELLEE: RAYMOND PATRICK TULLOS
NATURE OF THE CASE: CIVIL - DOMESTIC RELATIONS
DISPOSITION: AFFIRMED - 11/07/2017
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

BEFORE IRVING, P.J., BARNES AND WESTBROOKS, JJ.

WESTBROOKS, J., FOR THE COURT:

¶1. Jessica Tullos appeals the order modifying child custody and support of her minor

children. The order awarded her former husband, James Tullos, physical custody of both

minor children and required Jessica to pay child support. It is from that order that this appeal

is taken.

FACTS AND PROCEDURAL HISTORY

¶2. Jessica and James were married on September 4, 2004. Two children were born of

that union. A joint complaint for divorce was filed by James and Jessica on December 17,
2013. On March 14, 2014, a judgment of divorce was entered for the parties. Jessica was

given physical custody of the minor children, and James was given visitation and required

to pay $1,000 per month in child support.

¶3. On August 28, 2015, James filed a petition to modify the judgment, requesting that

the chancery court award him physical custody of the minor children and require Jessica to

pay child support. James alleged that Jessica was using illegal drugs in the presence of their

children. Jessica was served with the petition and a summons on September 4, 2015,

requiring that she appear at the Covington County Courthouse in Collins, Mississippi. The

original hearing date was set for September 29, 2015.

¶4. On September 29, 2015, the court entered an order continuing the case and resetting

it for trial, and the hearing was continued to October 15, 2015, at 9:30 a.m. in the Smith

County Courthouse in Raleigh, Mississippi. Raymond Tullos, James’s attorney, and Jessica,

who was pro se, signed the first order continuing the matter. On October 15, 2015, the trial

was continued by order of the court to December 10, 2015, at 9:30 a.m. in the Smith County

Courthouse in Raleigh. Jessica did not sign that order, and the record is unclear whether

Jessica was present.

¶5. On December 10, 2015, the chancery court entered another order continuing the case

to February 1, 2016, at 9:30 a.m. in the Smith County Courthouse in Raleigh. Jessica did not

sign the order, and the record does not reflect whether she was present at the hearing.

Moreover, only the chancellor signed the order continuing the matter. An order appointing

April Taylor Bryant as guardian ad litem (GAL) for the minor children was also entered on

2
February 1, 2016. On that same day, the chancellor signed an order continuing the case to

March 30, 2016. On March 30, 2016, the fifth and final order of continuance was signed by

the chancellor, continuing the hearing to May 19, 2016. While the order was signed, it was

not filed until March 31, 2016. The final order of continuance was signed by James’s

attorney and the chancellor but not Jessica, and the record is unclear if Jessica was present

at the hearing.

¶6. On May 19, 2016, a hearing on the petition to modify custody was held. James, his

attorney, and the GAL were present during the hearing, but Jessica was not. James testified

that Jessica had moved to North Dakota with their son. James stated that when he exercised

his visitation rights and picked up the children, sometimes Jessica was not at home and the

children had a dirty physical appearance. According to James, Jessica was using illegal drugs

and had used drugs in front of their children. James stated that though Jessica had not used

drugs in his presence, he observed Jessica inebriated in the presence of their children when

he picked them up for visitation. James also stated that Jessica’s mother, father, and

stepmother called him and asked that he not return the children to Jessica until they got

Jessica help for her drug use.

¶7. The GAL testified that she believed that it was in the best interest of both minor

children to reside with James. According to the GAL, after she requested the younger child

B.J.’s1 school records, his school counselor informed her that he had missed a number days.

The GAL also testified that the school counselor stated that B.J.’s education had been

1
We use the minor’s initials in place of his name.

3
impacted by Jessica’s constant relocation. The GAL stated that when she spoke with Jessica

regarding B.J.’s welfare, Jessica made false statements about James’s visitation and also gave

the GAL an incorrect physical address. When the GAL attempted to call Jessica back, she

could not reach her. The GAL left a voicemail message informing Jessica that she would be

visiting both James’s and Jessica’s homes. According to the GAL, she informed Jessica

about the final hearing as well. The GAL testified that after she could not reach Jessica, she

contacted B.J.’s school counselor and was informed that Jessica had moved.

¶8. After the testimony concluded, the chancellor ruled from the bench that he found a

substantial material change that adversely impacted the minor children. Following an

Albright analysis,2 the court found that it was in the best interests of the minor children to

reside with James. However, the chancellor did not sign an order reflecting his ruling on that

day. On July 1, 2016, another chancellor in the same judicial district signed an order, nunc

pro tunc as of May 19, 2016, altering the final judgment and awarding James physical

custody of both minor children. It is from that order that Jessica appeals. On appeal, Jessica

argues that the chancellor erred in entering a final judgment against her because she was not

properly noticed pursuant to Rule 81(d) of the Mississippi Rules of Civil Procedure. Finding

no error, we affirm.

STANDARD OF REVIEW

¶9. This Court will not “interfere with the chancellor’s findings of fact unless they were

manifestly wrong [or] clearly erroneous, or an erroneous legal standard was applied.”

2
Albright v. Albright, 437 So. 2d 1003 (Miss.1983).

4
Caplinger v. Caplinger, 108 So. 3d 992, 995 (¶6) (Miss. Ct. App. 2013). However, the

chancery court’s interpretation and application of the law is reviewed under a de novo

standard. Tucker v. Prisock, 791 So. 2d 190, 192 (¶10) (Miss. 2001).

DISCUSSION

¶10. Mississippi Rule of Civil Procedure 81(d) provides special procedures for hearings

on modification or enforcement of custody. M.R.C.P. 81(d)(2). When a modification action

is filed, notice of the action and the procedures for continuances are governed as follows:

[S]ummons shall issue commanding the defendant or respondent to appear and
defend at a time and place, either in term time or vacation, at which the [action
or matter] shall be heard. Said time and place shall be set by special order,
general order, or rule of the court. If such action or matter is not heard on the
day set for hearing, it may by order signed on that day be continued to a later
day for hearing without additional summons on the defendant or respondent.
The court may by order or rule authorize its clerk to set such actions or matters
for original hearing and to continue the same for hearing on a later date.

M.R.C.P. 81(d)(5).

¶11. “[T]he Mississippi Supreme Court has held that a central consideration under Rule 81

is the adequacy of the notice of the date, time, and place of the hearing.” Brown v. Tate, 95

So. 3d 745, 749 (¶13) (Miss. Ct. App. 2012) (citing Vincent v. Griffin, 872 So. 2d 676, 678

(¶5) (Miss. 2004)). However, if a proper summons is given that notifies the other party of

a new controversy that has arisen and of the date, time, and place for a hearing, the rule itself

provides that an order entered on the day of the initially scheduled hearing obviates the need

for any new summons for a hearing actually held on the later date. Bailey v. Fischer, 946 So.

2d 404, 407 (¶11) (Miss. Ct. App. 2006) (citing M.R.C.P. 81(d)(5)). If no such order is

entered, there should be a new Rule 81 summons. Id.

5
¶12. Though there were five continuances, all orders were signed by the chancellor on each

respective hearing date. Therefore, the initial summons was preserved. Jessica argues that

because she was not provided a copy of the four subsequent orders continuing the case and

resetting the trial, a new Rule 81 summons should have been issued. Caselaw does not

support this contention. The rule states that if the matter is not heard on the day it is set, then

an order entered on that day may continue the cause to a later date without a new summons

being issued. Sanghi v. Sanghi, 759 So. 2d 1250, 1259 (¶32) (Miss. Ct. App. 2000) (citing

M.R.C.P. 81(d)(5)).

¶13. Jessica had notice of the first continuance, and the record does not reflect that she

attended that hearing. Jessica also admits that she may have had actual notice of the final

hearing through the GAL’s statement regarding the hearing, but she contends that actual

notice is insufficient to cure defective process. We agree. “Actual notice does not cure

defective process.” Pearson v. Browning, 106 So. 3d 845, 852 (¶39) (Miss. Ct. App. 2012).

“[J]urisdiction is not obtained by a defendant’s informally becoming aware that a suit has

been filed against him.” Id. Nevertheless, Jessica was aware of a pending custody matter,

evidenced by her initial appearance at the first hearing and her signature on the first order of

continuance. A central tenet of Rule 81 is adequate notice of a pending legal matter, and

Jessica was given notice at the inception of the custody matter.

¶14. Therefore, we do not agree with Jessica’s argument that a Rule 81 summons should

have been reissued because she was not notified of subsequent court-ordered continuances.

The summons was preserved with each signed order of continuance. Moreover, each order

6
provided a day certain for the next hearing. Though the final order of continuance was not

filed until the day after the hearing, the summons was still preserved because the trial judge

signed the order on the day of the hearing. Rule 81 states “if such action or matter is not

heard on the day set for hearing, it may by order signed on that day be continued to a later

day for hearing without additional summons on the defendant or respondent.” M.R.C.P.

81(d)(5). Accordingly, we find that an additional summons was not required, and Jessica

was adequately notified of the custody matter. Finding no error, we affirm.

¶15. AFFIRMED.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, CARLTON, FAIR,
WILSON AND GREENLEE, JJ., CONCUR. TINDELL, J., NOT PARTICIPATING.

7