Jurisdiction to Modify Child Custody

November 27, 2017 § Leave a comment

Ever since the ancient case of Reynolds v. Riddell, 253 So.2d 834 (Miss. 1971), the law in Mississippi has been that once a Mississippi court enters a judgment awarding custody, that court in that particular chancery district retains exclusive jurisdiction to modify and enforce its judgment between parties continuing to reside in the state, even if one or both parties have relocated to other counties.

The sole exception is a Habeas Corpus proceeding, which must be brought in the county where the children are located. Bubac v. Boston, 600 So.2d 951 (Miss. 1992). Habeas, however, is a temporary action that does not confer continuing jurisdiction on the Habeas court, and does not actually effect a permanent modification. Id. at 955; See also, Pruitt v. Payne, 14 So.3d 806 (Miss. App. 2009).

Reynolds did provide an escape hatch: if the chancellor finds that the matter is inconvenient in the original county, due, say, to the relocation of the parties, she can transfer the action to another county. Reynolds at 837.

Against this backdrop, we consider whether it is proper for the chancery court in one custody modification action before it to, in effect, transfer the modification to another child custody action pending before it. That’s what the chancellor did in the custody dispute between Kelly Burge and the two fathers of her children, Chad Sharff and Craig Burge. Sharff had filed for modification of custody of his son. Burge filed for modification of a prior divorce judgment between him and Kelly, seeking custody of his son.

In the course of the custody cases, the chancellor dismissed Chad’s claims and consolidated cases as described below. The chancellor awarded custody of all of the children to Craig, and Kelly appealed.

One issue Kelly raised was that the chancellor had authority only in her original divorce action to modify custody, and that it was error for him to consolidate it into another custody case not arising from the divorce. In Burge v. Burge and Sharff, decided August 1, 2017, the COA affirmed. Judge Barnes penned the opinion for a unanimous court:

¶45. Kelly makes the procedural argument that the chancery court’s jurisdiction over the Sharff divorce ended when Chad’s custody-modification pleadings were involuntarily dismissed due to failure to prosecute. She claims that because Craig lacks standing in the Sharff divorce, no motion for modification survived, and the chancery court lacked grounds and jurisdiction to modify the Sharff action. Additionally, Kelly contends that the record supports collusion between Craig and Chad, who were attempting to deprive Kelly of custody of her four minor children by misuse of the procedural process. We are not persuaded by this argument.

¶46. Initially, Chad filed a petition to join Craig’s case “for just adjudication,” and requested Craig have custody of the children so as not to separate them. Alternatively, Chad requested he have custody. Approximately ten months later, Chad filed a petition to modify child custody in his own case, requesting legal and physical custody of his two children, since a material change in circumstances had occurred – the Burge divorce proceedings. He also filed a motion to transfer and consolidate his case with Craig’s case, since the same evidence would be presented in both cases to determine custody. Likewise, Craig filed a motion to consolidate his case with Chad’s case, and before trial began, the cases were consolidated.

¶47. At the conclusion of Craig’s and Chad’s case-in-chief, Kelly’s counsel made an ore tenus motion for the involuntary dismissal of Chad’s custody-modification action under Mississippi Rule of Civil Procedure 41(b), because Chad had not presented any evidence at trial to forward his claim. [Fn omitted] Indeed, Chad had not been physically present during the trial since an initial motions hearing nearly eight months earlier. Accordingly, the chancery court granted Kelly’s Rule 41(b) motion to dismiss, denying any relief requested by Chad for custody of his children. However, in the chancellor’s opinion, he stated that the Sharff divorce judgment was modified by Craig’s grant of custody.

¶48. From this ruling, Kelly argues that the involuntary dismissal of Chad’s custody modification in this case makes it “legally impossible” for the chancery court to address a change of custody for the Sharff children from Kelly to Craig. She contends the involuntary dismissal was an adjudication on the merits, and Craig no longer has standing in the Sharff case. Thus, the court lacked jurisdiction to modify the custody in it, and the children must remain in Kelly’s custody. We disagree.

¶49. In Professor Deborah Bell’s family-law treatise, she states:

A petition to modify . . . [a] custody . . . order must be filed in the court that issued the decree. As between the parties in the original action, the issuing court’s jurisdiction is exclusive, precluding any other court in the state from exercising jurisdiction over the case. . . . However, if an issuing court finds that adjudication in another court would be more efficient, jurisdiction may be transferred to that court.

Deborah H. Bell, Bell on Mississippi Family Law, § 18.07(1), at 447 (1st ed. 2005). Mississippi Code Annotated section 93-11-65 (Rev. 2013) allows the chancery court to hear a custody case apart from a divorce action. [Fn 10] Here, prior to the modification action filed by Chad, Craig had filed for third-party custody of the Sharff children in this action. According to statute, both actions were filed in the Lamar County Chancery Court, as the Sharff children resided in Lamar County in both actions, which is where custody between the natural parents has already been adjudicated. Chad’s modification action and Craig’s action are in the same chancery court, but with different cause numbers. Craig requested custody – something the court could grant – and both natural parents were given notice and an opportunity to be heard. The chancery court had the jurisdiction to modify custody of the Sharff children. That jurisdiction was not lost when Chad’s petition to modify custody was dismissed. [Fn 11] Kelly has not cited any authority to the contrary. This issue is without merit

[Fn 10] Section 93-11-65(1) provides that the chancery court of the proper county has jurisdiction to hear and determine suits for custody of minor children. “Proceedings may be brought by or against a resident or nonresident of the State of Mississippi, whether or not having the actual custody of minor children, for the purpose of judicially determining the legal custody of a child.” The action shall be brought in the county where the child is actually residing, or in the county of the residence of the party with actual custody, or in the county of the residence of the defendant. “Process shall be had upon the parties as provided by law . . . .”

[Fn 11] Even if the action had been filed in a different chancery court, the chancellor could have transferred the action. Here, the actions were merely consolidated as they were already in the same court.

Conclusion: not error to consolidate the cases into a case different from the original judgment sought to be modified. Here, the chancellor ordered the consolidation, which was equivalent to a transfer under Reynolds. I think the best practice always is to get an order of the chancellor consolidating.

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