Earline Kiddy (Brown) Wallace v. David Leslie Wallace;

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

NO. 2019-CA-00622-COA

EARLINE KIDDY (BROWN) WALLACE APPELLANT

v.

DAVID LESLIE WALLACE APPELLEE

DATE OF JUDGMENT: 06/13/2019
TRIAL JUDGE: HON. VICKI B. DANIELS
COURT FROM WHICH APPEALED: DESOTO COUNTY CHANCERY COURT
ATTORNEYS FOR APPELLANT: RICHARD SHANE McLAUGHLIN
STEVEN GLEN ROBERTS
ATTORNEYS FOR APPELLEE: JERRY WESLEY HISAW
JOSEPH M. SPARKMAN JR.
NATURE OF THE CASE: CIVIL - DOMESTIC RELATIONS
DISPOSITION: AFFIRMED IN PART; REVERSED AND
REMANDED IN PART - 11/24/2020
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

EN BANC.

WILSON, P.J., FOR THE COURT:

¶1. David and Earline Wallace consented to an irreconcilable differences divorce and

stipulated that the chancellor would determine and divide the marital estate and decide

Earline’s request for alimony. The chancellor granted the divorce, divided the marital estate,

and denied alimony. The divorce decree required Earline to sign a quitclaim deed

relinquishing her interest in the former marital home in exchange for a cash payment from

David. After Earline failed or refused to sign the quitclaim deed, the chancellor found her

in contempt and awarded attorney’s fees to David.
¶2. On appeal, Earline argues that the chancellor erred by (1) failing to account for a

marital asset (an increase in David’s equity in a commercial property) in the division of the

marital estate; (2) declining to award alimony; (3) finding her in contempt; and (4) allowing

David’s attorney to ask leading questions at the contempt hearing. We affirm in part and

reverse and remand in part. We agree with Earline on the first issue and therefore reverse

and remand for an equitable division of the asset at issue. We also reverse and remand on

the issue of alimony—not because the denial of alimony was error but only so that the

chancellor may consider the division of property and the issue of alimony together. We

affirm the chancellor’s finding of contempt and award of attorney’s fees to David. Finally,

although the chancellor abused her discretion by overruling Earline’s objection to a leading

question, the error was harmless.

FACTS AND PROCEDURAL HISTORY

¶3. David and Earline were married in 2008. Both parties had been married previously

and had children from prior marriages. The youngest of their children was already in high

school by the time the parties married, and all of their children are now emancipated.

¶4. In 2016, Earline filed a complaint for divorce, and David filed a counter-complaint

for divorce. At the time, Earline was forty-seven years old, and David was fifty-three years

old. They later consented to an irreconcilable differences divorce and stipulated that the

chancellor would divide the marital estate and rule on Earline’s request for alimony.

¶5. David is the fifty-percent owner of a business, All Major Appliances, that he started

prior to the parties’ marriage. David has pre-tax income of at least $100,000 per year. At

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the start of the marriage, Earline was self-employed doing light construction and home

remodeling. However, Earline has not worked since she had neck or back surgery around

2010. She testified that she is unable to work, but she presented no medical evidence to

support her alleged disability. The chancellor was “not convinced that [Earline] is disabled

or unable to work” and found that Earline “chooses not to work.” The chancellor noted that

Earline claimed that she needed “new doctors” and additional surgery but had “not sought

out new doctors while she [was] still on [David’s] health insurance.”

¶6. The chancellor found that David’s one-half interest in his business and his one-half

interest in a building on Stateline Road in Southaven were his separate property. David and

his business partner own the Stateline Road building and lease it to their business. The

chancellor found that David’s one-half interest in his business increased in value by $40,000

during the marriage. The chancellor found that this increase was a marital asset and ordered

David to pay Earline $10,000 for her interest. The chancellor found that Earline failed to

prove that the Stateline Road building had increased in value during the marriage.

¶7. The chancellor awarded David the marital home, which he had owned prior to the

marriage. The chancellor found that there was $40,000 of equity in the home, ordered David

to pay Earline $20,000 for her interest, and ordered Earline to sign a quitclaim deed

conveying her interest in the property to David. The chancellor also awarded Earline two

vehicles valued at $17,500 and $17,900 and ordered David to pay off the notes on both

vehicles. In total, Earline was awarded marital assets valued at $70,040, while David was

awarded marital assets valued at $61,000.

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¶8. The chancellor declined to award alimony. The chancellor found that Earline, who

was fifty years old at the time of the divorce, could return to work. The chancellor

acknowledged David had greater assets and income than Earline; however, the chancellor

pointed out that those disparities already existed when the parties were married in 2008. The

chancellor also observed that David had paid Earline temporary alimony of $1,200 per month

for thirty-one months during the parties’ separation, which had served a purpose similar to

rehabilitative alimony. The chancellor also noted that Earline would receive $30,000 in cash

from David as part of the equitable distribution.

¶9. Earline filed a notice of appeal from the divorce decree. Four days later, on April 9,

2019, David filed a motion for contempt. David alleged that although he had immediately

paid Earline $20,000 for her interest in the marital home, Earline had refused to sign a

quitclaim deed as required by the divorce decree. David also alleged that Earline had failed

to remove her property from the marital home as required by the divorce decree. David

asked the court to find Earline in contempt, order her to sign the deed, and award him

attorney’s fees.

¶10. On April 10, 2019, Earline filed a motion to stay the judgment pending appeal without

a supersedeas bond. The same day, Earline also filed a “Response” to David’s motion for

contempt. In her response, Earline argued that she was not in contempt because her

contemporaneously-filed motion to stay the judgment operated as an automatic stay of the

judgment.

¶11. On May 13, 2019, the chancellor held a hearing on David’s motion for contempt and

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Earline’s motion to stay the judgment pending appeal. The chancellor ordered Earline to

remove her property from the marital home by noon on May 19, denied Earline’s motion to

stay the judgment, and continued the hearing on David’s motion for contempt to June 3.

¶12. On May 29, 2019, Earline filed an “Answer and Counterclaim” to David’s motion for

contempt. Earline’s counterclaim alleged that David had prevented her from removing her

property from the marital home. Earline requested an award of attorney’s fees based on

David’s alleged contempt. The same day, Earline also filed a separate “Motion to Dismiss”

David’s motion for contempt.

¶13. On June 3, 2019, the chancellor held a hearing on David’s motion for contempt and

Earline’s counterclaim for contempt. In response to David’s motion for contempt, Earline

offered a copy of a quitclaim deed that she had belatedly signed on April 16, 2019—after

David’s motion was filed. In support of her counterclaim, Earline testified and called David

as an adverse witness.

¶14. On June 13, 2019, the chancellor found that Earline was in contempt for initially

refusing to sign the quitclaim deed and awarded David attorney’s fees of $4,200. The

chancellor found that David was not in contempt and therefore denied Earline’s

counterclaim. Earline then filed a notice of appeal from the chancellor’s order.

¶15. On appeal, Earline argues that the chancellor erred by (1) failing to account for an

increase in David’s equity in the Stateline Road building in the division of the marital estate;

(2) declining to award alimony; (3) finding her in contempt; and (4) permitting David’s

attorney to ask leading questions during the contempt hearing.

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ANALYSIS

¶16. We will not reverse a chancellor’s findings of fact or discretionary rulings unless the

chancellor abused her discretion, committed a manifest or clear error, or applied the wrong

legal standard. Townsend v. Townsend, 859 So. 2d 370, 371-72 (¶7) (Miss. 2003). We

review issues of law de novo. Id. at 372 (¶7).

I. The Stateline Road Building

¶17. The chancellor found that the Stateline Road building was a non-marital asset because

David owned it prior to the marriage. But the chancellor also found that an increase in the

property’s value could be a marital asset subject to equitable division. The chancellor then

found that the value of the property had “actually decreased” by about $12,000 during the

marriage.1 The chancellor acknowledged that David’s “equity position had improved at some

point [during the marriage] because of the payments he and his partner had made on the

building.” The chancellor also acknowledged that there was some evidence that David and

his partner had received cash distributions when they refinanced the property. However, the

chancellor stated that there was no evidence of the amount of debt on the property at the start

of the marriage. For that reason, the chancellor found “that there [was] no increase in the

value of this property to equitably divide with Earline.”

¶18. On appeal, Earline argues that she presented sufficient evidence to establish an

increase in the value of David’s equity in the property during the marriage. David testified

that he and his partner owed approximately $261,000 on the property in 2011. The

1
The chancellor’s finding was based on the expert opinion of an appraiser who
testified for David at trial.

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chancellor set the demarcation date for purposes of the division of assets as July 25, 2016,

the date of the temporary order in the case. David also testified that by 2017, he and his

partner had reduced their debt on the building to approximately $114,000. At that time,

David and his partner had refinanced the building for approximately $221,000, and each of

them took approximately $50,000 in cash from the refinancing.

¶19. Earline reasons that this evidence shows that by paying down the debt on the property,

David and his partner increased their equity position in the property by at least $147,000

during the course of the marriage. Earline further argues that this increase in equity was

acquired with marital funds, represents a marital asset, and substantially exceeds the $12,000

decrease in the building’s value found by the chancellor.

¶20. We agree with Earline on this issue. Earline clearly established that David used

income that he earned during the marriage—i.e., marital funds—to increase his equity in the

Stateline Road building. David’s earnings clearly would have been marital property if he had

simply deposited the funds in a bank account. Those funds did not lose their character as

marital property because David instead used them to purchase equity in another asset. See

Stroh v. Stroh, 221 So. 3d 399, 409 (¶30) (Miss. Ct. App. 2017) (holding that equity in real

estate obtained with income earned by the husband during the marriage was a marital asset);

Gutierrez v. Bucci, 827 So. 2d 27, 38 (¶62) (Miss. Ct. App. 2002) (holding that use of marital

funds to pay down a mortgage creates a marital asset).

¶21. Therefore, the chancellor clearly erred by finding that there was no increase in the

value of this property to equitably divide with Earline. Accordingly, we reverse and remand

7
for the chancellor to consider an equitable division of this marital asset, that is, the increase

in David’s equity position in the Stateline Road building during the course of the marriage.

Of course, “an equitable division of property does not necessarily mean an equal division of

property,” and the chancellor may consider “all relevant factors.” Stroh, 221 So. 3d at 410

(¶31) (quoting Chamblee v. Chamblee, 637 So. 2d 850, 863-64 (Miss. 1994), and Wideman

v. Wideman, 909 So. 2d 140, 144 (¶14) (Miss. Ct. App. 2005)). We do not dictate any

particular division but only require the chancellor to consider and equitably divide this

marital asset.

II. Alimony

¶22. As noted above, Earline also argues that the chancellor abused her discretion by not

awarding alimony. “[W]hen we reverse a court’s division of marital property, we must also

reverse any accompanying award or denial of alimony.” Faerber v. Faerber, 13 So. 3d 853,

863 (¶39) (Miss. Ct. App. 2009). We do so based on a recognition that “[a]limony is not a

completely independent financial issue in a domestic case, in which its consideration is

hermetically sealed from other financial matters.” Buckley v. Buckley, 815 So. 2d 1260, 1262

(¶10) (Miss. Ct. App. 2002). Rather, the division of property and the need for alimony are

closely connected, and a change in the division of property may affect the need for alimony.

Segree v. Segree, 46 So. 3d 861, 866 (¶13) (Miss. Ct. App. 2010). “Accordingly, we must

reverse and remand on [the] issue [of alimony] as well,” id., not because the denial of

alimony was error but only so that the chancellor may consider these related issues together

on remand.

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III. Contempt

¶23. Earline argues that the chancellor erred by finding her in contempt and awarding

attorney’s fees to David. Earline argues, first, that she was not in contempt and, second, that

David failed to obtain or serve her with a Rule 81 summons. See M.R.C.P. 81(d)(2), (5). We

address Earline’s arguments in turn.

A. The chancellor did not err by finding Earline in contempt.

¶24. The divorce decree entered on March 6, 2019, required David to pay Earline $20,000

for her equity in the marital home within thirty days of the entry of the decree, and it required

Earline to execute a quitclaim deed “[u]pon . . . payment” by David. The decree was based

on the chancellor’s prior opinion, which was entered on February 20, 2019. The opinion

similarly required Earline to sign a quitclaim deed “upon David’s tendering to her $20,000.00

for her one-half of the equity.” The opinion further stated that “[t]his should be

accomplished within thirty days of the [divorce decree].” David complied by tendering a

trust check for $20,000 and a quitclaim deed to Earline prior to the entry of the divorce

decree on March 6, 2019.

¶25. Pursuant to the divorce decree and the chancellor’s opinion, Earline should have

signed the quitclaim deed promptly upon receipt of the $20,000 payment from David. At the

very latest, she was required to sign the quitclaim deed within thirty days of the entry of the

decree, i.e., no later than April 5, 2019. Earline failed to sign the quitclaim deed by April 5

as required by the divorce decree. Nor did she file a motion to stay the judgment or any other

type of post-trial motion. As a result, David filed a motion for contempt on April 9.

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¶26. On April 10, 2019, Earline did file a motion to stay the judgment pending appeal,

pursuant to Mississippi Rule of Appellate Procedure 8(b), and a “Response” to David’s

motion for contempt. Earline also eventually signed the quitclaim deed on April 16, 2019.

Following a hearing on May 13, 2019, the chancellor denied Earline’s motion to stay the

judgment pending appeal.

¶27. Earline’s primary argument is that her motion to stay the judgment pending appeal

operated as an automatic stay pending a ruling on the motion by the chancellor. See

M.R.A.P. 8(b)(5) (“If a hearing is necessary [on a motion for a stay of the judgment pending

appeal], the judgment shall be stayed during such hearing and for ten days following the trial

court’s ruling.”). Earline reasons that because she signed the quitclaim deed while an

automatic stay was in effect, she cannot be held in contempt.

¶28. However, Earline ignores that she was already in contempt before she ever filed her

motion to stay the judgment. Earline’s belated motion for a stay cannot excuse her prior

failure to comply with the court’s clear order.

¶29. “The Mississippi Supreme Court has consistently held that the inquiry in a contempt

proceeding is limited to whether or not the order was violated, whether or not it was possible

to carry out the order of the court, and if it was possible, whether or not such violation was

an intentional and willful refusal to abide by the order of the court.” Brown v. Hewlett, 281

So. 3d 189, 199 (¶37) (Miss. Ct. App. 2019) (quoting Ellis v. Ellis, 840 So. 2d 806, 811 (¶18)

(Miss. Ct. App. 2003)). “The only defenses to a contempt violation include an inability to

comply with the court order or that the court order was unclear.” Id. (quoting Ellis, 840 So.

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2d at 811 (¶18)). “Whether a party is in contempt is a question of fact to be decided on a

case-by-case basis.” Id. (quoting Gilliland v. Gilliland, 984 So. 2d 364, 369 (¶19) (Miss. Ct.

App. 2008)). “A chancellor has substantial discretion in deciding contempt matters because

of the chancellor’s temporal and visual proximity to the litigants.” Id. (quoting Gilliland, 984

So. 2d at 369-70 (¶19)).

¶30. In the present case, the chancellor’s opinion and decree were abundantly clear that

Earline was required to sign the quitclaim deed no later than April 5, 2019. David promptly

complied with his obligation to tender $20,000 to Earline. However, Earline failed to comply

with the court’s order, and she offered no explanation or excuse for her failure. Indeed,

Earline offered no testimony in response to David’s motion for contempt. The only evidence

she offered at the contempt hearing was the belatedly signed quitclaim deed—which only

confirmed that she had failed to comply with the terms of the divorce decree. Under the

circumstances, we cannot say that the chancellor abused her “substantial discretion” by

finding Earline in contempt. Id.

¶31. On appeal, Earline also makes a conclusory assertion that the chancellor’s award of

$4,200 in attorney’s fees was “patently unreasonable and . . . an abuse of discretion.”

However, Earline offers no reasons or authority to support this claim. In the chancery court,

David’s attorney submitted an affidavit, which he supplemented at the final hearing, detailing

his time and stating that his hourly rate was $300. The chancellor awarded David $4,200 for

fourteen hours, including time spent preparing the motion and attending two hearings, at that

rate. In the chancery court, Earline failed to challenge the reasonableness of the attorney’s

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rate or the hours he claimed. She also fails to address these issues on appeal. We conclude

that the issue is waived for lack of any meaningful argument or citation of authority. See

Doss v. Claiborne Cnty. Bd. of Supervisors, 230 So. 3d 1100, 1104 (¶10) (Miss. Ct. App.

2017) (“In the absence of meaningful argument and citation of authority, an appellate court

generally will not consider an assignment of error. A cursory argument without further

reason or explanation is inadequate.” (citation, quotation marks, brackets, and ellipsis

omitted)).

B. Earline waived her objection to the lack of a Rule 81
summons.

¶32. On appeal, Earline also argues that the chancellor erred by finding her in contempt

because David failed to serve her with a summons pursuant to Mississippi Rule of Civil

Procedure 81(d). Discussion of this issue requires a brief recap of the procedural history of

David’s contempt motion.

¶33. On April 9, 2019, David filed a “Motion for Contempt and Other Relief” based on

Earline’s failure to sign a quitclaim deed.2 David served the motion on Earline through her

attorneys pursuant to Mississippi Rule of Civil Procedure 5(b)(2). However, David did not

obtain or serve a summons as required by Rule 81. See Pearson, 106 So. 3d at 849 (¶18)

(stating that Rule 5 service of a “motion” for contempt, “without a Rule 81 summons, was

not appropriate”).

¶34. Although no summons had been issued, Earline filed a written “Response” to David’s

2
David should have filed a petition for contempt. “A petition, not a motion, is to be
filed where a party is seeking contempt.” Pearson v. Browning, 106 So. 3d 845, 849 (¶17)
(Miss. Ct. App. 2012).

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motion for contempt the next day, April 10, 2019. Earline’s response addressed David’s

motion on the merits and did not raise any objection related to the lack of a summons or

service of process.

¶35. On May 13, 2019, the parties appeared before the chancellor for a hearing on David’s

motion. The hearing was not transcribed. The court granted Earline additional time to

remove her property from the marital home and subsequently entered an order nunc pro tunc

to May 13 that stated in part, “All issues raised in the Motion for Contempt and Other Relief,

including any award of attorneys’ fees, [are] continued and shall be heard on June 3, 2019,

in the DeSoto County Courthouse in Hernando, Mississippi.”

¶36. On May 29, 2019, Earline filed an “Answer and Counterclaim” to David’s motion for

contempt. In her counterclaim, Earline alleged that David had refused to allow her access

to her personal property and had damaged and destroyed some of her property. Earline’s

answer addressed David’s motion for contempt on the merits and did not raise any issue

related to the lack of a summons or service of process. In addition, Earline’s answer

“admit[ted] that she [was] subject to the continued jurisdiction of the [chancery court].”

¶37. On May 29, 2019, Earline also filed a separate “Motion to Dismiss” David’s motion

for contempt. Earline’s motion again responded to David’s allegation of contempt on the

merits. Near the end of her motion, Earline also asserted that David’s motion was

“procedurally invalid” because it “did not comply with Hanshaw v. Hanshaw, 55 So. 3d 143,

146 (Miss. 2011).” The Supreme Court’s decision in Hanshaw does hold that a Rule 81

summons is required to initiate a contempt proceeding. Hanshaw, 55 So. 3d at 146 (¶9).

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However, Earline’s motion did not explain that point of law or mention any issue related to

a summons or service of process.

¶38. On June 3, 2019, consistent with the chancellor’s prior order, both parties appeared

at a hearing on David’s motion for contempt and Earline’s counterclaim for contempt.

Earline appeared with her attorney, who told the court, “We’ve got a Motion to Dismiss.

We’re also ready on the Motion for Contempt if you can do the contempt that way.”

Earline’s attorney then argued the merits of David’s contempt motion and offered the

quitclaim deed, which Earline had belatedly signed, as evidence that Earline was not in

contempt. Earline then testified and called David as an adverse witness in support of her

counterclaim for contempt. During the entire hearing, Earline never mentioned any issue

related to the lack of a hearing or service of process. Following the hearing, the chancellor

entered an order finding Earline in contempt.

¶39. Based on the foregoing, Earline argues that the chancellor’s finding of contempt must

be reversed due to David’s failure to serve her with a Rule 81 summons. In contrast, David

argues that Earline waived any objection to the lack of a Rule 81 summons. For the reasons

that follow, we agree with David that Earline waived the issue.

¶40. To commence a proceeding for contempt, a party must obtain and serve a Rule 81

summons—even if the chancery court has continuing jurisdiction over the underlying divorce

case. Hanshaw, 55 So. 3d at 146 (¶9). However, the respondent may waive the requirements

of Rule 81 by appearing at a hearing on the issue of contempt and defending the charge on

its merits without raising any objection related to service of process. Isom v. Jernigan, 840

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So. 2d 104, 107 (¶¶9-11) (Miss. 2003); Dennis v. Dennis, 824 So. 2d 604, 610-11 (¶¶16-18)

(Miss. 2002).

¶41. For example, in Isom, the ex-husband (Jay) failed to comply with Rule 81 because he

mailed a Rule 81 summons to his ex-wife’s attorney but never attempted to serve his ex-wife

(Kelly). Isom, 840 So. 2d at 105-06 (¶¶4, 7). However, the Supreme Court held that Kelly

had waived the issue because her attorney appeared at the contempt hearing and defended

the charge of contempt on the merits without raising any objection related to service of

process. Id. at 105, 107 (¶¶5, 9-11).

¶42. Similarly, in Dennis, the ex-wife (Gretchen) filed a “motion for contempt against” her

ex-husband (David) and mailed a copy of the motion and a notice setting the motion for a

hearing to David’s attorney. Dennis, 824 So. 2d at 607 (¶4). However, “no summons was

issued, and the motion and notice were not served upon David.” Id. at 609-10 (¶13). The

Supreme Court held that Gretchen failed to comply with Rule 81. Id. But the Supreme Court

further held that David waived any objection related to service of process or due process

because he appeared and “aggressively defend[ed] himself at the hearing” and “never made

an objection pertaining to defective service from the beginning to the end of the hearing.”

Id. at 610-11 (¶¶16, 18).3

3
In contrast, in Hanshaw, supra, the responding party did not waive her Rule 81
objection because the chancery court never held a contempt hearing, and the responding
party “was never given an opportunity to present evidence on her behalf before a finding of
contempt was made.” Hanshaw v. Hanshaw, 55 So. 3d 170, 174 (¶16) (Miss. Ct. App.
2009), aff’d in relevant part, 55 So. 3d at 146 (¶10) (reversing the chancellor’s contempt
finding because the responding party “did not receive proper notice or an opportunity to
defend against the charges in a contempt hearing” (emphasis added)).

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¶43. With respect to the issue of waiver, there is no material difference between this case

and Dennis. As in Dennis, David served Earline’s attorney pursuant to Rule 5 rather than

serving Earline pursuant to Rule 81. See Dennis, 824 So. 2d at 607, 609-10 (¶¶4, 13).

Earline then filed multiple written responses to David’s contempt motion. Furthermore,

Earline made no objection related to a lack of summons or service of process in her

“Response,” in her “Answer,” or at the hearing on contempt. As noted above, Earline did

bury one obscure and unexplained reference to a relevant case (Hanshaw) near the end of her

“Motion to Dismiss.” However, at no point in the proceedings in the chancery court did she

articulate any objection based on the lack of a summons or service of process, and she never

mentioned Rule 81 in any of her written responses or during the contempt hearing. Rather,

she appeared at the hearing, defended against the charge of contempt on the merits, and

“never made an objection pertaining to defective service from the beginning to the end of the

hearing.” Dennis, 824 So. 2d at 611 (¶18). By doing so, she waived any objection based on

the absence of service of process. Id.

IV. Leading Questions

¶44. In her final issue, Earline argues that the chancellor erred by overruling her objection

to a leading question by David’s attorney during David’s testimony at the contempt hearing.

Earline had called David as an adverse witness in support of her counterclaim for contempt.

David’s attorney then “cross-examined” David. After David’s attorney asked several leading

questions, Earline’s attorney objected:

Q: Isn’t it true, Mr. Wallace, that you were trying to move/relocate from
the former marital home to a new house?

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A: Yes, sir.

[Earline’s attorney]: Judge, he’s asking his client, “Isn’t it true . . .” I
think maybe he’s leading the witness.

THE COURT: What’s your objection?

[Earline’s attorney]: Leading.

[David’s attorney]: Cross-examination, Your Honor.

THE COURT: Sustained -- no, cross-examination --

[David’s attorney]: He’s on cross-examination.

THE COURT: -- overruled.

After the chancellor’s ruling, David’s attorney asked several more leading questions.

¶45. Our Supreme Court has explained that counsel generally should not be allowed to use

leading questions to “cross-examine” a “friendly witness” called by the opposing party as an

adverse witness:

It is often necessary that a plaintiff call a witness who is identified with the
defendant in order to establish facts essential to a prima facie case. That
witness’s overall testimony may be adverse to the plaintiff. It would not be
fair to allow the defense to establish its case during the plaintiff’s direct case
by asking leading questions of a friendly witness.

Deshpande v. Ferguson Bros. Constr. Co., 611 So. 2d 877, 879 (Miss. 1992). In the absence

of specific reasons why leading questions are necessary, the trial court abuses its discretion

by allowing counsel to lead a friendly witness. Id.

¶46. Here, there was no reason or need for David’s attorney to lead his own client.

Leading questions are not proper when, as in this case, “cross-examination is cross-

17
examination in form only and not in fact.” M.R.E. 611(c)(1) advisory committee note.4

Therefore, the chancellor abused her discretion by overruling Earline’s objection and

permitting leading questions. Deshpande, 611 So. 2d at 879.

¶47. However, we will not reverse based on a harmless error. M.R.C.P. 61. Earline fails

to identify any concrete harm or prejudice she experienced because David’s attorney was

allowed to ask leading questions. Therefore, we conclude that the error was harmless and

not a basis for reversal.

CONCLUSION

¶48. We reverse and remand for further proceedings consistent with this opinion regarding

the equitable division of the increase in David’s equity in the Stateline Road building. We

also reverse and remand on the issue of alimony—not because of any error but only for

further consideration in light of any changes to the equitable division of marital property.

Finally, we affirm the chancellor’s finding of contempt and award of attorney’s fees.

¶49. AFFIRMED IN PART; REVERSED AND REMANDED IN PART.

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

4
Mississippi Rule of Evidence 611 provides that the court “[o]rdinarily . . . should
allow leading questions . . . on cross-examination[.]” M.R.E. 611(c)(1) (emphasis added).
“The purpose of the qualification ‘ordinarily’ is to furnish a basis for denying the use of
leading questions when the cross-examination is cross-examination in form only and not in
fact, as, for example, the ‘cross-examination’ of a party by his own counsel after being called
by the opponent . . . .” M.R.E. 611 advisory committee note.

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McCARTY, J., CONCURRING IN PART AND DISSENTING IN PART:

¶50. I agree with the majority that we should reverse and remand for a determination of the

increased value of the building which houses the husband’s business and that alimony should

be revisited in light of that reversal. However, because David did not serve Earline with a

summons at all—and in fact one was never even issued—I believe longstanding precedent

requires reversal of the contempt finding as well.

¶51. Our Rules of Civil Procedure require that when a contempt action is filed “summons

shall [be] issue[d] commanding the defendant or respondent to appear and defend at a time

and place, either in term time of vacation, at which the same shall be heard.” M.R.C.P.

81(d)(5) (emphasis added). Accordingly, our precedent firmly establishes that “[c]omplete

absence of service of process offends due process and cannot be waived.” Mansour v.

Charmax Indus. Inc., 680 So. 2d 852, 855 (Miss. 1996). This longstanding rule reaches to

some of our earliest jurisprudence. Jones v. Com. Bank of Columbus, 6 Miss. (5 Howard)

43, 49 (1840) (“[T]he general rule [is] that no one shall be held bound by a proceeding

without notice.”).

¶52. In the case at hand, Earline was never served with a Rule 81 summons. She could not

have been because one was never issued. In my view, this case presents us with the same

scenario from a case where the Supreme Court reversed for a complete failure to issue and

serve a Rule 81 summons in a contempt matter. Hanshaw v. Hanshaw, 55 So. 3d 143, 146

(¶10) (Miss. 2011). The Court held that “[b]ecause [the wife] did not receive proper notice

or an opportunity to defend against the charges in a contempt hearing, we reverse the

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chancellor’s contempt finding and subsequent denial of [her] motion to reconsider.” Id.

¶53. As the majority notes, counsel for Earline did raise Hanshaw, if obliquely, in a motion

before the trial court. I believe we should follow that case and reverse for lack of service of

process.

¶54. Nonetheless, it is true that over the years the Supreme Court has held that the general

rule can be waived in certain circumstances. For example, in one case a wife claimed her

attorney was served instead of her and that the summons improperly shortened her time to

respond from seven days to six. Isom v. Jernigan, 840 So. 2d 104, 107 (¶12) (Miss. 2003).

The Court held “[t]he requirements of Rule 81 were waived in this particular case by [the

wife’s] attorney making an appearance, failing to challenge the jurisdiction or the sufficiency

of the service of process and offering evidence on her behalf[.]” Id. at (¶11).

¶55. In any event, she “was intentionally secreting her daughter” and “clearly violating a

chancery court order, and her attorney appeared on her behalf.” Id. at (¶10). The Court held

that “[i]f there was ever a case that service was waived, this is the case.” Id. Despite the

problems with service and timing, a Rule 81 summons had actually been issued and served

in the case. Id.

¶56. The majority sees this case as closer to Isom than Hanshaw. Yet Isom focused on

when process was served in relation to a hearing on the merits; as the majority points out,

process was actually issued in that case, just improperly served. In contrast, Earline’s

contempt proceeding was marked by a complete lack of process. When there is such a total

lack of process, we should reverse.

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¶57. Due process requires both issuance of process and service of process in accord with

Rule 81. While certain particularities of Rule 81 might be waived, the complete absence of

service of process violates a citizen’s right to due process. Because a summons was not

issued and Earline was not served at all, I believe we should reverse the contempt finding in

this matter. As a result, I respectfully concur in part and dissent on this point.

BARNES, C.J., WESTBROOKS AND McDONALD, JJ., JOIN THIS OPINION.

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