MINIMUM CONTACTS FOR ALIENATION OF AFFECTION

February 9, 2011 § 4 Comments

Kristina and her husband Eric lived in Long Beach, Mississippi.  Kristina commuted to work in Louisiana, where she began having a sexual relationship with William, a co-worker.  All physical contact between Kristina and William occurred exclusively in Louisiana.

When they were apart, Kristina and William pursued their mutual infatuation via e-mail, cell phone and text messages.  Many of the electronic communications were sent and received by Kristina while she was physically located in Mississippi.

Eric discovered the relationship and asked William to leave his wife alone.  William persisted.  Eventually Eric and Kristina were divorced and Kristina moved to Louisiana and married William.

Eric sued William in the County Court of Harrison County, Mississippi, for alienation of affection, alleging that his damages occurred in Mississippi, and that Kristina had sent and received communications while she was in the state.

William moved unsuccessfully to dismiss for lack of personal jurisdiction and took an interlocutory appeal to the supreme court.

In the case of Knight v. Woodfield, decided January 6, 2011, the Mississippi Supreme Court found that the phone calls, text messages and e-mails were sufficient “minimum contacts” with Mississippi to confer personal jurisdiction.  The court cited International Shoe Company v. Washington, 326 US 310, 316 (1945), which states that “A defendant has ‘minimum contacts’ with a state if the defendant has purposefully directed his activities at residents of the forum and the litigation results from alleged injuries that arise out of or relate to those activties.”

The court also found that allowing the suit to go forward in Mississippi would not offend traditional notions of fair play and substantial justice because Mississippi has an interest in providing a forum for its residents who are injured by nonresidents and for other reasons.  

The opinion, written by Justice Carlson, includes this language about the tort of alienation of affection:

Mississippi’s interest is enhanced because Louisiana does not recognize the tort of alienations, making Mississippi the only viable forum for Woodfield’s claims … the purpose of the tort of alienation of affections is the ‘protection of the love, society, companionship, and comfort that form the foundation of marriage …’ [citations omitted] Permitting claims for alienation of affections protects the marriage relationship and provides a remedy to those who have suffered loss of consortium as a result of the conduct of others …”

Justice Waller, joined by Chandler, dissented, disagreeing with the majority that the electronic communications constituted minimum contacts with Mississippi.

We’ve talked here before about the viability of alienation of affection as a cause of action.  From the language in this case, it appears that alienation is as viable as ever.

TRANSFER OR DISMISS?

December 8, 2010 § 5 Comments

It was long the law in Mississippi divorce cases that venue is jurisdictional, and that an action filed in the wrong county had to be dismissed, and could not be transferred to the appropriate county.  See, Carter v. Carter, 278 So.2d 394, 396 (Miss. 1973).  Venue in a Mississippi divorce is said to be “exclusive” because the divorce statutes define where venue lays.  The action must be brough exclusively in the county specified.  Where venue is exclusive, it is jurisdictional.    

Against this backdrop, the Mississippi Supreme Court decided the case of National Heritage Realty, Inc. v. Estate of Boles, 947 So.2d 238 (Miss. 2006), reh. den. February 8, 2007.  The case involved an estate opened in Tallahatchie County, which was the county where the decedent formerly lived before relocating to a nursing home in Leflore County, where she subsequently died.  The chancellor found that venue for the estate was properly in Leflore County, and had ordered that the estate be transferred from Tallahatchie County to Leflore.  The Supreme Court, by Justice Easley, ruled that the venue statute for estates is exclusive, and, therefore, jurisdictional.  In the absence of jurisdiction, the chancellor was without authority to take any action, even a transfer.  In the absence of jurisdiction, his action was void and not merely voidable.  Justice Easley at page 248 based his reasoning on the established divorce venue law, to which he analogized the estate venue statutes. 

The only problem is that the divorce venue statute, MCA § 93-5-11, had been amended in 2005, a year before the Boles decision, to add the following sentence:  “Transfer of venue shall be governed by Rule 82(d) of the Mississippi Rules of Civil Procedure.”  MRCP 82(d) reads, in part:

“When an action is filed laying venue in the wrong county, the action shall not be dismissed, but the court, on timely motion, shall transfer the action to the court in which it might properly have been filed and the case shall proceed as if originally filed therein … “

Justice Easley’s opinion makes no mention of the amendment.

From time to time I get requests from lawyers to transfer a case, usually from Lauderdale to Clarke County, although I have been requested to transfer to other counties.  This occurs primarly with out-of-district lawyers who are unfamiliar with the fact that some people with a 39301 zip code and a Meridian address actually reside in Clarke County, or some folks with Collinsville addresses actually reside in Newton or Neshoba, or with Daleville or Lauderdale addresses actually residing in Kemper.  The predominant type of case lawyers want transferred involves the Structured Settlement Protection Act, MCA § 11-57-1, et seq.  I presume they prefer transfer over dismissal because dismissal requires filing a new petition and starts over the law’s technical notice and time requirements. 

So how can we reconcile Boles and MCA § 93-5-11 and MRCP 82(d)?

In the absence of any definitive guidance from the appellate courts, here is my interpretation:

  1. If the case is not a divorce and venue is exclusive (i.e., defined in the statute upon which your action is based), then the case can not be transferred.  It must be dismissed and refiled. 
  2. If venue in the case arises under MCA § 11-11-3, the general venue statute (which has been held to be applicable to actions in chancery court where there is no exclusive venue statute), the case may be transferred per MRCP 82(d).
  3. If the case is a divorce, it may be transferred per MCA § 93-5-11, but see the caveat below.

Some observations based on the above:

Cases under the Structured Settlement Protection Act may not be transferred because MCA § 11-57-11 includes an exclusive venue provision.

An action solely for an injunction is under the general venue statute because MRCP 65 does not define venue for the action.  A Rule 65 action may be transferred.

Although the statute expressly authorizes transfer of a divorce, consider the ramifications before you do it.  The divorce statutes include an exclusive venue provision.  Under Boles, an action filed in the wrong venue in  an exclusive venue case is void ab initio, meaning that the chancellor has no authority to take any action other than to dismiss.  The court lacks subject matter jurisdiction.  Price v. Price, 32 So.2d 124 (Miss. 1947).  Lack of subject matter jurisdiction is a defect that may be raised at any time, even years after the fact, because the action of the court lacking jurisdiction is void, and not merely voidable.  Would you want to risk having your client’s divorce set aside somewhere down the road by the other party who is disgruntled with the outcome?  If I were the attorney, my preference would be to take the safe path and dismiss the case with improper venue rather than transfer it.

[I hope this is a helpful starting point for Frankie and colleagues at MC Law]

UCAPA: A VALUABLE CUSTODY TOOL

November 23, 2010 § Leave a comment

Mississippi adopted the Uniform Child Abduction Prevention Act (UCAPA) in 2009.  It is codified at MCA §§ 93-29-1 through -23.

Although the title of the law refers only to abduction, the new statutes go much further and offer proceedings and remedies for situations involving violation of a court order by removing or withholding custody of a child, both of which are situations frequently encountered by practitioners and the courts.  The unique aspect of this law is that it is preventative; that is, it allows the court to act in anticipation of a violation, provided that certain things are proven.    You need to be aware of this law and add it to your repertoire of actions in custodial situations of every kind and nature.

The Act is an adjunct to the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), MCA §§ 93-27-1 through 209.

The purpose of the law is to provide legal measures to prevent child abduction, which is defined in Section 3 as “wrongful removal or wrongful retention of a child,” or wrongful removal of a child, which is defined as “taking of a child that breaches rights of custody or visitation given or recognized under the laws of this state,” or wrongful retention of a child, which is defined as “the keeping or concealing of a child that breaches the right of custody or visitation given or recognized under the law of this state.”  

There are three ways to impose measures under the Act spelled out in Section 7:

  1. A court may on its own motion impose abduction prevention measures if it finds that the evidence establishes a credible threat of abduction.  Section 3 states that the court is any aythorized to establish, enforce or modify a child custody order.    
  2. A party to a child-custody determination or a party having a right under Mississippi law or the law of any other state may petition to have obtain abduction prevention measures.  A child custody determination is defined in Section 3 as “a proceeding in which the legal custody, physical custody, physical custody or visitation with respect to a child is at issue, including divorce and dissolution of marriage, separation, neglect, abuse, dependency, guardianship, paternity, termination of parental rights, or protection from domestic abuse.    
  3. A prosecutor or certain public officials may take action.

Jurisdiction is in any court that has child custody jurisdiction under the UCCJEA.  Also, a court of this state may have temporary emergency jurisdiction under MCA § 93-27-204.

The petition must be verified and include a copy of any existing child-custody determination.  The petition must state a factual basis for the belief that there is a credible risk of abduction, stating which of the factors set out in Section 13 are applicable, and why.  Subject to MCA § 93-27-209(5) (where information must be kept confidential to protect the safety of a child), the petiton must also include (a) the name, birth date and gender of the child; (b) the customary address and current physical location of the child; (c) The identity, customary physical address and current physical location of the respondent; (d) a statement whether a prior action to prevent abduction was filed by anyone having custody of the child, and the date, location and disposition of the action; (e) a statement whether a party has been arrested for a crime related to domestic violence, stalking, child abuse or neglect, and the date, location and disposition of the case; and (e) any other information required to be submitted to the court under § 93-27-209, MCA. 

Section 13 lists factors to be considered by the court in determining whether there is a credible risk of abduction, and allows the court to take into consideration that the respondent may have believed in good faith that her actions were necessary to prevent harm to the child, or that they were done with permission.  The factors include whether there has been:

  1. A previous abduction or attempted abduction;
  2. A threat to abduct;
  3. Recent activity indicating a planned abduction;
  4. Domestic violence, stalking or child abuse or neglect;
  5. Refusal to follow a child-custody determination;
  6. Lack of strong familial, financial, emotional or cultural ties to this state or the United States;
  7. Strong familial, financial, emotional or cultural ties to another state or country;
  8. Likelihood of taking the child to another country that is not a party to the Hague Convention, or the laws of which would bar efforts by the other party to contact or re-gain custody of the child, or which poses a threat to the health or safety of the child, or is a terrorist state, or is one with which this country has no diplomatic relations, or is involved in any external or civil war to which the child may be imposed.
  9. An ongoing immigration proceedings that may result in expulsion;
  10. An application for U.S. citizenship denied; 
  11. Falsified travel, driver’s license or other government-issued documents, or misrepresentations to the United States government;
  12. Use of multiple names;
  13. Any other relevant conduct.

If the action is brought on the court’s own motion, the court must also consider the age of the child, the potential harm to the child, the legal and practical difficulties of returning the child to the jurisdiction if the child were abducted, and the basis for a finding of potential abduction.

An order issued by the court must include the provisions spelled out in Section 15

Measures that may be imposed to prevent abduction as set out in Section 15 may include:

  • Imposition of travel restrictions;
  • Prohibition from removing the child from this state or the United States, from retaining the child in violation of a court order, or even from approaching the child at any location other than one designated by the court for supervised visitation;
  • Requirement to register the court’s order in the other state as a condition precedent for visitation with the child in that state;
  • An order that the child’s name be placed on the U.S. State Department’s Passport Issuance Alert Program;
  • Surrender of passports and prohibition against applying for new or replacement passports or visas;
  • Other measures as spelled out the section.

The court may also limit visitation, require a bond, order educational programs, issue a warrant to take custody of a child, direct law enforcement to locate and take or return custody of a child, and grant any other relief necessary.

The court’s order remains in effect for the time stated in the order, or until emancipation of the child, or until the child attains age 18, or until further order of a court of competent jurisdiction.

This court’s view:  On first blush, it would appear that this would be a rarely-invoked law.  After all, how many times have genuine abduction situations arisen in our courts?  Well, in 2010, I have already had two cases that raised issues under this law.  One involved a citizen of  middle-eastern country married to an American citizen who was alleged to have threatened in the heat of a separation squabble that he would take the children to his country and the mother would never see them again.  The other involved grandparent visitation rights and a threat to take the children to another state or Canada where the parent would no longer be required to submit to the court’s order.

But those specific instances are only the more exotic examples.  With a little imagination and effort, you can find ways to make this statute work for your clients in more prosaic cases.

There have been many scenarios over the course of my legal career where this law would have come into play and provided a remedy where none existed then. 

Practice Tip:  Familiarize yourself with UCAPA and add it to your repertoire to use in child custody, visitation and wrongful retention cases, especially where there are interstate or international considerations.  It can be an important tool in your custody tool box.

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