MAXWELL, J., for the Court.
¶ 1. Willie James Clark ("Willie") and Aileen Brown Clark ("Aileen") were granted
¶ 2. We find that because Aileen failed to serve a Rule 4 summons in the divorce action, the chancellor lacked jurisdiction and erred in refusing to set aside the divorce. While the court lacked jurisdiction to grant the divorce, we find the chancellor had jurisdiction to enter the separate temporary support order, and it should be upheld. Therefore, we affirm in part and reverse and remand in part.
¶ 3. Aileen and Willie were married for five years before they separated in August 2007. They have one daughter from their marriage. On February 19, 2008, Aileen filed a complaint for divorce, and about ten days later filed an amended complaint for divorce. On May 30, 2008, she filed a motion for temporary support.
¶ 4. Willie was later served with two Rule 81 summons. The first directed him to appear and defend on June 13, 2008, which was the date set for a hearing on Aileen's motion requesting temporary alimony, child support, and custody. Willie did not appear on that date. The chancellor entered a temporary order a few days later granting Aileen $250 per week in "temporary family support" and awarding Aileen temporary custody of their daughter.
¶ 5. The second summons directed Willie to appear on July 25, 2008, to defend against Aileen's amended complaint for divorce. However, once again, Willie did not appear or otherwise defend.
¶ 6. The chancellor held a hearing on July 25, 2008, and entered a written judgment of divorce granting Aileen a divorce from Willie based upon the ground of adultery. Within this same written judgment of divorce, the chancellor also awarded Aileen custody of the couple's minor child and granted Willie "reasonable visitation." In addition, the chancellor awarded $750 per month in child support for Aileen as well as $250 per month in rehabilitative alimony for a three-year period. She was also granted ownership of a vehicle she had driven, and her last name was ordered to be restored to her maiden name. The chancellor also required Willie to provide his daughter's health insurance, and ordered Willie to pay $1,500 in attorney's fees. On August 29, 2008, the chancellor amended the written judgment of divorce, but no significant substantive changes were made.
¶ 7. On September 23, 2008, Willie filed a motion pursuant to Mississippi Rule of Civil Procedure 60(b) to set aside the chancellor's judgment of divorce. Six days later he filed an amended motion requesting the same relief, which the chancellor denied.
¶ 8. On appeal, Willie asserts essentially one assignment of error. He claims that because he was not served with the proper form of summons, the chancellor was without jurisdiction over the matters decided in the August 29, 2008, amended judgment,
¶ 9. We will not disturb a chancellor's findings of fact "unless the chancellor's decision is manifestly wrong or unsupported by substantial evidence." Bougard v. Bougard, 991 So.2d 646, 648(¶ 12) (Miss.Ct.App.2008) (citation omitted). However, "[w]hen reviewing questions concerning jurisdiction, this court employs a de novo review." Sanghi v. Sanghi, 759 So.2d 1250, 1252(¶ 7) (Miss. Ct.App.2000).
¶ 10. Both the divorce summons and the separate summons for temporary support utilized the identical language and format found in Form 1D, located in Appendix A to the Mississippi Rules of Civil Procedure. Form 1D is the sample form for matters governed by Rule 81(d) of the Mississippi Rules of Civil Procedure. See Sanghi, 759 So.2d at 1256(¶ 28).
¶ 11. 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." Sanghi, 759 So.2d at 1253(¶ 11); see also Carlisle v. Carlisle, 11 So.3d 142, 144(¶ 9) (Miss.Ct.App.2009).
¶ 12. Furthermore, in Rule 81 matters, a Rule 81 summons must be issued; otherwise, service is defective. See, e.g., Powell v. Powell, 644 So.2d 269, 274 (Miss.1994); Saddler v. Saddler, 556 So.2d 344, 346 (Miss.1990); Serton v. Serton, 819 So.2d 15, 21(¶ 24) (Miss.Ct.App.2002). Actual notice does not cure defective process. See, e.g., Mosby v. Gandy, 375 So.2d 1024, 1027 (Miss.1979). "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." Sanghi, 759 So.2d at 1257(¶ 33).
¶ 13. For example, in Sanghi, we found process was defective where the defendant in a contempt action, Dr. Harishankar Sanghi, received notice of the date and time of the hearing, but was not served with a Rule 81 summons. Id. at (¶ 31). Dr. Sanghi not only received a copy of the petition for contempt via certified mail, but
¶ 14. Because it is undisputed that Willie failed to appear or otherwise defend against Aileen's amended divorce complaint, our jurisdictional inquiry turns on whether Willie was properly served with process. Specifically, we must decide whether service is defective where a Rule 81 summons is served to initiate a divorce action, a non-Rule 81 matter.
¶ 15. Rule 4 lists the requirements for a valid summons issued under Rule 4, and provides in pertinent part:
M.R.C.P. 4(b) (emphasis added).
¶ 16. In the case before us, Willie was informed that a judgment would be entered against him if he failed to appear and defend, as is required by Rule 4(b). However, the summons at issue contained substantial deviations from Rule 4. First, the Rule 81 summons stated: "You are not required to file an answer or other pleading but you may do so if you desire." Second, the Rule 81 summons did not specify any deadline—specifically, that Willie was required to answer with a response to his wife's attorney within thirty days. Third, the Rule 81 summons did not inform Willie that he was required to also file his answer with the chancery clerk within a reasonable time.
¶ 17. In explaining the primary distinction between a Rule 4 and Rule 81
¶ 18. Generally, "[d]efault judgments are not permitted in divorce cases. However ... a `special kind of default judgment' may be given in uncontested actions for divorce so long as the proceeding is heard in open court and `the claimant establishes his claim or right to relief by evidence.'" Brown v. Brown, 872 So.2d 787, 788(¶ 10) (Miss.Ct.App.2004) (internal citations omitted); see also Miss.Code Ann. § 93-5-17 (Rev.2004); M.R.C.P. 55(e).
¶ 19. We have held a properly served defendant's "failure to answer does not drag a divorce case to a halt. Instead, the plaintiff must, at a hearing, prove the allegations that support the receipt of a divorce. If that is done, then the chancellor has authority to grant the divorce despite the absence of the defendant." Stinson v. Stinson, 738 So.2d 1259, 1263 (¶ 15) (Miss. Ct.App.1999) (citing Rawson v. Buta, 609 So.2d 426, 430 (Miss.1992)).
¶ 20. However, even if the allegations in the divorce complaint are established by the evidence, the chancellor must also have proper jurisdiction over the parties. Here, Willie's sole argument is that the court lacked jurisdiction over him because he was never served with a proper summons. For this reason, Willie argues the judgment of divorce is void, and the chancellor erred in refusing to set it aside pursuant to Rule 60(b).
¶ 21. Although "[t]he grant or denial of a 60(b) motion is generally within the discretion of the trial court, ... [i]f the judgment is void, the trial court has no discretion. The court must set the void judgment aside." Soriano v. Gillespie, 857 So.2d 64, 69-70(¶ 22) (Miss.Ct.App.2003). A judgment is deemed void if the court rendering it lacked jurisdiction. Morrison v. Miss. Dep't of Human Servs., 863 So.2d 948, 952(¶ 13) (Miss.2004). Specifically, a judgment is void "if the court that rendered it lacked jurisdiction of the subject matter, or of the parties, or if it acted in a manner inconsistent with due process of law." Id. (citation omitted).
¶ 22. In Kolikas, 821 So.2d at 879(¶ 32), we found the chancellor erred in failing to set aside a divorce decree pursuant to Mississippi Rule of Civil Procedure 60(b), where the defendant in a divorce action was served by publication without strictly complying with the requirements of Rule 4. We observed 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." Id. at 878(¶ 17). Here, we find the chancellor,
¶ 23. Since the chancellor lacked personal jurisdiction over Willie, the divorce is void. Thus, the chancellor erred in refusing to set it aside pursuant to Rule 60(b) of the Mississippi Rules of Civil Procedure.
¶ 24. Because we find the divorce void, our next inquiry is whether the related matters addressed by the chancellor within the chancellor's judgment of divorce should also be deemed void.
¶ 25. In chancery practice, most of the financial awards accompanying the chancellor's divorce decree are linked. See, e.g., Deborah H. Bell, Bell on Mississippi Family Law § 19.09[7] (2004). Our supreme court has explained:
Lauro v. Lauro, 847 So.2d 843, 848-49(¶ 13) (Miss.2003) (internal quotation marks omitted). For this reason, it has been held that when 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). For example, in Thompson v. Thompson, 894 So.2d 603, 607(¶ 22) (Miss.Ct.App.2004), we reversed the chancellor's division of property, which we held also required reversal of the chancellor's award of lump-sum alimony as well as her child support determination. Also, in Duncan v. Duncan, 815 So.2d 480, 485(¶ 16) (Miss.Ct.App.2002), we reversed a chancellor's award of periodic alimony, and finding that any changes in that award would impact on other aspects of the chancellor's decision on remand, we vacated all aspects of the final judgment relating to financial matters. Moreover, the supreme court held reversal of a chancellor's distribution of property also required reversal of the chancellor's award of attorney's fees. Lauro, 847 So.2d at 850(¶ 18).
¶ 26. While this rule may not apply to rehabilitative alimony awards, see Lauro, 847 So.2d at 849(¶ 15), in this case, the rehabilitative alimony award is also void because alimony, like divorce, is governed by Rule 4, and Willie was never served with a Rule 4 summons. Thus, the court also lacked jurisdiction to make the rehabilitative-alimony award.
¶ 27. Accordingly, we find the chancellor's judgment of divorce is void in its entirety, and all determinations therein —including the chancellor's awards of alimony, child custody, and child support— must also be reversed.
¶ 28. Finally, Willie claims that Aileen's motion for temporary support was "nothing more than a derivative action" of the divorce complaint, and, therefore, the court's lack of jurisdiction over the divorce complaint extends to the motion for temporary relief.
¶ 29. Although Mississippi appellate courts are generally without jurisdiction to hear direct appeals from temporary orders, Michael v. Michael, 650 So.2d 469, 471 (Miss.1995) (citing Miss.Code Ann. § 11-51-3 (Supp.1993)), the denial of a Rule 60(b) motion is a final judgment that is reviewable. Sanghi, 759 So.2d at 1255(¶ 22).
¶ 31. The chancellor lacked jurisdiction over the divorce action because Willie was improperly served with a Rule 81 summons, rather than the required Rule 4 summons. For this reason, the chancellor's judgment of divorce was void, as were his accompanying financial awards. Thus, the chancellor erred in refusing to set aside the judgment pursuant to Rule 60(b). Because the chancellor had jurisdiction over the matters adjudicated at the temporary support hearing, the temporary order stands.
¶ 32.
KING, C.J., LEE AND MYERS, P.JJ., IRVING, BARNES, ISHEE, ROBERTS AND CARLTON, JJ., CONCUR. GRIFFIS, J., SPECIALLY CONCURS WITH SEPARATE WRITTEN OPINION JOINED BY LEE, P.J., AND MAXWELL, J.
GRIFFIS, J., Specially Concurring.
¶ 33. I concur with the majority. A summons under Rule 81 of the Mississippi Rules of Civil Procedure may not be substituted for a Rule 4 summons under Rule 4 of the Mississippi Rules of Civil Procedure.
¶ 34. I write separately because I believe Rule 81 is a treacherous and often misunderstood rule. It was included in the rules at the behest of several well-respected chancellors. They were concerned with how practice under the then "new" rules of civil procedure would affect domestic relations law and other statutory claims.
¶ 35. After almost thirty years now that the Mississippi Rules of Civil Procedure have governed procedure in our chancery courts, more than one party and practitioner have fallen prey to the hidden tentacles of Rule 81. The results of the trap laid by Rule 81 can be devastating, such as in this case.
¶ 36. Rule 81(d) should be transferred to Rule 4 or some other appropriate rule. All notice provisions should be in or near Rule 4. Rule 81 should remain, but without paragraph (d). I urge the Mississippi Supreme Court to revise the Mississippi Rules of Civil Procedure to make the notice requirements of Rule 81 easier to understand and to comply with in actual practice.
LEE, P.J., AND MAXWELL, J., JOIN THIS OPINION.