MODIFICATION AND CONTEMPT: WHICH VENUE?
February 10, 2011 § Leave a comment
Steve and Nancy are divorced in Clarke County, Mississippi. The divorce judgment awarded custody of the three minor children to Nancy and ordered Steve to pay her child support. Shortly after the divorce, Steve relocates to the coast. After a year or two, Nancy remarries and moves to Tupelo with her new husband.
It has been six years since the divorce, and now Nancy wants Steve to begin paying more child support. Steve wants to file a contempt/modification action against Nancy for her interference with his visitation, and to gain custody of their oldest son, who now wants to live with dad. Nancy has not lived in Clarke County in the past four years, and Steve has not lived there in the past five years.
Which chancery court will have jurisdiction? Lee County where Nancy and the children live? Harrison County where Steve lives? Or is it the county where the defendant (respondent) resides, based on who files first?
The answer is: None of the above.
Clarke County will continue to have jurisdiction to modify and enforce its own judgments, even though neither party any longer resides there.
In the case of Reynolds v. Riddell, 253 So.2d 834, 836-837 (Miss. 1971), the supreme court held that the court that had original jurisdiction and rendered the judgment is the court that retains jurisdiction to modify and enforce that judgment, regardless of the residence of the parties since the time.
The appellant in Reynolds had argued that the version of MCA § 93-11-65 at the time conferred jurisdiction to determine and modify child custody on any Mississippi court where the child resides or where the party having actual custody resides, or where the defendant resides. The phrase “party having actual custody” must pertain to a party who obtained custody in in original proceeding and hence applies to modifications, the appellant argued. Not so, replied the supreme court opinion. It stated that the legislative intent of MCA § 93-11-65 was:
” … to provide a means of judicially determining the legal custody of a child in those instances where its custody was in question and no previous adjudication had been made thereasto, or either there existed conflicting custodial adjudications. We are of the opinion that the legislature did not intend to divest a court of jurisdiction … which continues in that court for the purpose of modification upon the changed circumstances between the same parties. We hold, therefore, that the Chancery Court of Washinton County did not have jurisdiction too modify the decree of custody entered by the Chancery Court of Sunflower County since the latter had continuing jurisdiction over these minor children.”
The court cited older cases that reached a similar result.
Three exceptions have been carved out of the rule announced in Reynolds:
- Reynolds itself created a procedure to remove the case to another county. At page 837, the court stated: “To alleviate the unfortunate condition made apparent by this case, the court vested with exclusive and continuing jurisdiction may entertain a motion to transfer the cause to the county which is the residence of the parents and the children, and upon hearing this motion, if it appears to the court in the exercise of its sound discretion that time and expense would be saved and the best interest of the children served or promoted, then the motion might be properly sustained.” [Emphasis added] Note the highlighted language. It provides that the action may be transferred to the county where both parents and children reside, not to a county where one parent or one parent and the children reside. In other words, you may proceed in the county where the custody order was originally entered, or in another county if both parents and children reside in that county, but in no other.
- In Bubac v. Boston, 600 So.2d 951, 955 (Miss. 1992), the court held that a habeas corpus proceeding may temporarily modify an original custody adjudication in certain limited circumstances, and that the jurisdiction of the habeas court is statutorily in the county where the children are being illegally detained. The habeas modification is temporary only until a permanent modification proceeding can be held in the court having original jurisdiction. The temporary nature of habeas jurisdiction wa recently reaffirmed in Pruitt v. Payne, 14 So.3d 806 (Miss. App. 2009).
- In Brashers v. Green, 377 So.2d 597, 599-600 (Miss. 1979), the court again upheld the separate jurisdiction of the habeas court and applied what was then the law regarding child custody modifications in cases involving parties in different states, which has since been supplanted by the Uniform Child Custody Jurisdiction and Enforcement Act. And in a post UCCJA case, the same holding, Roach v. Lang, 396 So.2d 11, 13 (Miss. 1981).
Reynolds was a pre-MRCP case. We’ve talked here before about transfers and venue, and how the two concepts interact. I am not aware of any cases that tackle similar issues from the standpoint of rules-based transfer, but the Reynolds rationale is sound under the rules and application of venue concepts, in my opinion.
In the case of Harry v. Harry, 856 So.2d 748, 751 (Miss. App. 2003), the court held that an action for contempt may only be brought in the same court that rendered the original judgment, and the contempt action is ancillary to the original proceeding. Venue is exclusive in the original court even though the petitioner has moved to a different county in the same state. “Only the court contemned has jurisdiction to punish the contemnor.” Harry at 751; citing Tollison v. Tollison, 841 So.2d 1062, 1064 (Miss. 2003).
Neither the Uniform Child Custody Jurisdiction and Enforcement Act nor the Uniform Interstate Family Support Act offer any help. Those laws govern actions between a non-resident and a Mississippi resident, or between residents of other states, and do not apply to actions between exclusively Mississippi residents.
I’ve heard lawyers say for years that there are other ways to transfer, but the only authority I have ever found one way or the other is above. If you have something else that points in a different direction, let me know .
In sum, bring that modification or contempt action before the court that issued the original judgment that you are seeking to modify or enforce. If all of the parties and all of the children have relocated to another county, and they are all residing in that single county, you can petition the court to transfer the case to the new county.