Res Judicata and Subject Matter Jurisdiction, Part III
September 25, 2019 § Leave a comment
Yesterday and the day before we looked at the COA’s decision in Abercrombie v. Abercrombie and Judge McCarty’s dissent. Today we look at the majority’s response to the dissent:
¶26. The dissenting opinion is based entirely on evidence offered at a hearing that was held in the chancery court more than a year after this appeal was filed, and the dissent’s ultimate conclusion is that the chancellor should have taken additional steps when he entered his order “vacat[ing] the original judgment of divorce in this case.” Post at ¶40. However, that order was also entered over a year after this appeal was taken, and it is not the subject of this appeal. Indeed, as discussed above, a panel of this Court previously recognized that the chancellor retained jurisdiction to address the parties’ fraud on the court precisely because that issue “was not the subject of the judgment that Faith challenges in this appeal.”
¶27. In this appeal, Faith challenges the chancery court’s July 26, 2017 order denying her April 14, 2017 motion to dismiss and set aside for lack of jurisdiction. In that motion, Faith did not allege any fraud on the court, and there was no evidence of fraud on the court when the chancellor entered his ruling. Indeed, although the dissent primarily addresses the validity of the Louisiana adoption, there was nothing to indicate any problem with the Louisiana adoption when the chancellor entered the judgment that is now before us on appeal. The only challenge that the chancellor addressed in that ruling was Faith’s claim that the court’s initial child custody determination was void because Mississippi was not Reed’s home state at the time of the original judgment of divorce. For the reasons explained above, Faith’s attack on the court’s jurisdiction to make an initial custody determination was barred by res judicata because the case had already been litigated to a final judgment three times. [Fn 5] Therefore, the chancellor properly denied Faith’s motion.
[Fn 5] To be clear, we agree with the dissent that the issue of subject matter jurisdiction “cannot be waived.” However, it can be finally decided—and beyond re-litigation—when as in this case, it has been resolved in multiple successive final judgments.
¶28. Thus, the dissent is attacking an order that simply is not before us on appeal. The order that the dissent attacks was entered more than a year after this appeal was taken, and there has been no attempt to appeal it. Nowhere does the dissent say that the chancellor committed any error in the order that is actually the subject of this appeal. [Fn 6]
[Fn 6] Although we have considered the post-appeal proceedings in the chancery court and the chancellor’s post-appeal rulings, we have done so only (1) to rule on Faith’s motion to stay proceedings in the chancery court and to stay execution of the chancellor’s orders (which we denied, see supra ¶21) and (2) to determine whether this appeal is moot (we hold that it is not, see supra n.2).
¶29. One final point: the dissent accuses this Court and the chancellor of somehow “usurp[ing] jurisdiction from Louisiana” and “infringing upon [Louisiana’s] authority to govern its own citizens.” Post at ¶48. Nothing could be further from the truth. As far as this Court is aware, no custody proceeding is pending in any Louisiana court, and no judge in Louisiana has attempted to make any custody decision pertaining to Reed. If such an action is ever filed in Louisiana, the chancellor may communicate with the Louisiana judge, the chancellor may relinquish continuing jurisdiction over Reed’s custody, and the Louisiana court may assume jurisdiction. See Miss. Code Ann. §§ 93-27-110 & -202 (Rev. 2018); La. Stat. Ann. §§ 13:1810 & :1815 (Rev. 2007). That may be an appropriate course in the future, but it has nothing to do with the ruling that is before this Court in this appeal. The ruling that is before this Court in this appeal simply rejected Faith’s challenge to the chancery court’s jurisdiction to make an initial child custody determination.