Venue in Divorce and the Accompanying Child Custody Action

August 15, 2013 § Leave a comment

Venue for fault-based divorces where both parties are residents of Mississippi is in the county where the defendant resides, or in the county where the parties lived when they separated, if the plaintiff still lives there.

Venue for irreconcilable differences divorces where both parties are residents is in the county where either party resides.

Venue for child custody actions brought under MCA 93-11-65 is in the county where the child actually resides, or in the county of residence of the custodial parent, or in the county of residence of the defendant.

The vast majority of divorce complaints include (1) claim of at least one fault-based ground for divorce, (2) claim of irreconcilable differences, and (3) claim for child custody, often pled under MCA 93-11-65. Where is venue in a case such as that? And how is venue affected if one or more of the claims is dismissed?

Those were the questions before the court in Slaughter v. Slaughter, 869 So.2d 386 (Miss. 2004).

Monica and Mitchell Slaughter married and lived together in Chickasaw County. Monica separated and moved to Coahoma County, where she filed a Complaint for Divorce alleging habitual cruel and inhuman treatment, and, the alternative, irreconcilable differences. Apparently, she also sought child custody per MCA 93-11-65. Mitchell filed a motion to dismiss on the ground that the Coahoma County Chancery Court lacked jurisdiction. He also filed his own actions for divorce and custody in Chickasaw County.

The chancellor granted the motion to dismiss as to the fault-ground. He ruled, however, that the Coahoma County court did have jurisdiction over the irreconcilable differences divorce, and over the issue of custody pursuant to MCA 93-11-65(a).

Mitchell contested the irreconcilable differences divorce and asked the court to transfer the case to Chickasaw County, which the chancellor refused.

Mitchell sought an interlocutory appeal, which the MSSC granted.

In a unanimous decision, with Diaz not participating, the court, by Justice Easley, ruled:

  1. Since Coahoma County was not the proper venue for the fault-ground divorce, the chancellor erred in retaining jurisdiction over the irreconcilable differences divorce only. The chancellor should have dismissed the case in toto, rather than treating it piecemeal (¶29). The irreconcilable differences venue statute may not be used to circumvent the clear requirements for venue in fault-based cases (¶ 30). 
  2. “We find that a proper reading of all three statutes, §§ 93-5-11, 93-5-23 and 93-11-65, does not provide for a custody matter to proceed under § 93-11-65 when a divorce is pending.” (¶33).
  3. And finally since the chancellor lacked any jurisdiction at all, he could not transfer the case. (¶30).

That’s the pronouncement of the court, and we are bound by it. But there are a couple of points:

I don’t really have a quarrel with the outcome of the case. Both the irreconcilable differences statute and MCA 93-11-65 seem to be pretty slender reeds to support proper jurisdiction in a fault-based divorce. But what, exactly does MRCP 82(c) mean? You can read it for yourself and lay awake tonight pondering it. The Slaughter opinion did not address it.

As to number 3, the obvious question is what in the world does MRCP 82(d) mean when it says that “When an action is filed laying venue in the wrong county, the action shall not be dismissed, but the court … shall transfer the action to the court in which it might properly have been filed …”? The legislature addressed this conundrum in 2005, when it amended MCA 93-5-11 to provide that “Transfer of venue shall be governed by Rule 82(d) of the Mississippi Rules of Civil Procedure.” That would seem to cover that. Ironically, Justice Easley penned the decision in Heritage Realty, Inc. v. Estate of Boles, 947 So.2d 238 (Miss. 2006), reh. den. February 8, 2007, which ruled that an estate opened in the wrong county must be dismissed, and may not be transferred. Again, what in the world … etc.

I guess what you need to bear in mind about this case is in contested divorces that the jurisdictional sun around which all of the other planetary issues will revolve, including custody, support, equitable distribution, etc., will be the fault-based divorce. Venue in a divorce is jurisdictional. That means that it will be heard in the county where the defendant resides, or in the county where the parties lived when they separated, if the plaintiff continues to reside there. 

 

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