Essential Jurisdictional Facts for Divorce

September 9, 2015 § 9 Comments

There are four fundamental facts you need to know about divorce in Mississippi:

  1. Venue is jurisdictional.
  2. Residence is jurisdictional.
  3. There must have been a marriage for there to be a divorce.
  4. Pleadings are not evidence.

Knowing those four things, then, you need to make sure that you put proof in the record, most usually in the form of testimony, that establishes venue and residence — ergo jurisdiction  — and that there was a marriage.

Here are the jurisdictional facts that need to be in the record for the court to exercise jurisdiction over a divorce:

  • That there was a valid marriage. When and where were the parties married?
  • When was the separation? Separation is not essential for the granting of a divorce, per MCA 93-5-4, but it helps the judge understand the context of the divorce. Many chancellors will want you to establish that, despite the non-separation, they have not had consensual sexual intercourse.
  • Where is venue? For a fault-based divorce, the case must be filed in: (1) the county where the defendant resides; or (2) the county where the plaintiff resides if the parties lived in that county up to the time of the separation and the plaintiff has continued to live there; or (3) the county where the plaintiff resides if the defendant is a non-resident or not to be found in the state. If the ground for divorce is solely irreconcilable differences, the complaint may be filed in the county of either party. MCA 93-5-11. If the action is not filed in the proper county, the court has no jurisdiction, and the case must be transferred to the proper county, per MCA 93-5-11 and MRCP 82(d).
  • Is there the requisite residential period? One of the parties must have been a bona fide resident of the State of Mississippi “within this state” for six months “next preceding” the commencement of the case. That means that there must be six uninterrupted months of actual residence inside the state. It is not enough to move here four months before filing and claim that you actually changed your residence to Mississippi two months before moving here, or to stitch together several periods of residency to make six months. The six-month period does not apply to U.S. military actually stationed in Mississippi, provided that the member resided with the spouse in Mississippi, and the separation occurred in Mississippi. Residency must not have been acquired to secure a divorce. MCA 93-5-5.

Don’t forget the UCCJEA allegations if custody is an issue.

Just because you plead all of the jurisdictional requirements, that does not prove anything because pleadings are not evidence, and the only way to prove something is to get evidence into the record — meaning the trial transcript.

I find that even experienced lawyers fail to get this vital proof into the record in some cases. It happens primarily in cases where the plaintiff’s attorney calls the other party adversely as the first witness. Those jurisdictional fact questions somehow never get asked. Maybe the attorney is afraid that the adverse party will deny residency or something similar. Maybe the attorney is more preoccupied with confronting the cheater with videos, or making him admit he squandered the family fortune gambling. Maybe it’s simple oversight. Whatever, it should not be left up to the judge to inquire about these jurisdictional nuances.

Splitting the Baby

December 10, 2014 § 1 Comment

It is fundamental that a judgment rendered by a court without subject matter jurisdiction is void. Not voidable, but void ab initio. Therefore, it is critical for a court to ensure that it has subject matter jurisdiction before it proceeds to final judgment.

The MSSC confronted this principle in the case of Bronk v. Hobson, handed down December 4, 2014, in which the court was called upon to decide whether, in 1999, the County Court had jurisdiction to award custody in a paternity action. In a 5-4 decision the court ruled that county courts did not have such jurisdiction in 1999, and that, therefore, the 1999 judgment awarding custody was void.

Before going further, I have to note that the MSSC’s ruling directed that the case be transferred to Chancery Court. Since this is a Lauderdale County case, the court’s holding might result in the case being assigned to me, so I am limiting my comments to the jurisdictional questions in child custody cases in general, and am making no comment on the merits of the custody case between these parties in particular.

Chancery court jurisdiction is created by the Mississippi Constitution, which vests “full jurisdiction” over minor’s business in chancery courts. County court jurisdiction is created by MCA 9-9-21, which vests the county courts with ” … jurisdiction concurrent with … chancery courts in all matters of … equity wherein the amount of value of the thing in controversy is $200,000 or less … ”

The majority in Bronk decided that county court jurisdiction derived from 9-9-21 rests on matters only for which the value can be quantified in terms of dollars. The value of child custody matters can not be determined monetarily, so county court lacks jurisdiction.

The dissent took the opposite tack, arguing that since the value of child custody is not quantifiable, it is zero, which is less than $200,000, and, therefore, is within county court jurisdiction.

As between the two radically different approaches, the majority actually represents the reality of how county courts have traditionally exercised jurisdiction in equity matters. That’s because there are two sources of county court jurisdiction: one is 9-9-21; the other is specific grants of jurisdiction such as the statute authorizing county courts to adjudicate paternity and its 2013 amendment that conferred jurisdiction on county courts ” … for the enforcement of orders awarding custody … ” in paternity matters. In my experience, county courts have limited their exercise of concurrent equity jurisdiction to matters specifically granted by statute. That’s why you don’t see divorces being granted, or adverse possession being decreed, or estates and guardianships being administered, in county court. Thus, by practice, 9-9-21 has not been applied as a blanket grant of concurrent jurisdiction with chancery court.

The practice reflects the legislature’s approach. If the legislature had intended 9-9-21 to be a sweeping grant of co-jurisdiction with chancery court in all matters without regard to money value, then why did the legislature go to the trouble to amend the paternity statute to grant jurisdiction to county courts over what had been up to that point a purely chancery matter? If 9-9-21 were authority enough, then the statute was unnecessary. The same holds true with the 2013 amendment. I think the answer is that county court is purely a creature of statute, and its jurisdiction, which is not constitutionally derived, as is chancery’s, must be defined by the legislature. The legislature recognizes this, and defines that concurrent jurisdiction by express and specific statutory grants.

A legitimate concern of the MSSC is to construe legislation in such a way as to clarify the law so as to eliminate uncertainty and ambiguity. In my opinion, the majority and dissent in Bronk lead to different results in this regard.

  • The majority opinion in Bronk makes it clear that county courts lacked jurisdiction over child custody in paternity actions before the 2013 amendment. It offers the clarification that county court’s concurrent jurisdiction is limited to matters that can be monetarily quantified.
  • The dissent opens the door to the possibility that any chancery matter can be brought in chancery or county court, since it says that adjudications like custody determination are within the county court’s $200,000 limit. The dissent does not limit its scope to custody solely to paternity actions. Any matter that can not be quantified would fall within the $200,000 limit. That would, in essence, extend county court jurisdiction to all other chancery matters, because almost all chancery relief can not be calculated in terms of dollars. True, monetary relief is granted in chancery, but much of the relief has no dollar value. What, for instance, is the exact dollar value of the grant of a divorce, or an adoption, or the determination of a landline dispute, or confirmation of title, or adverse possession, or confirmation of title, or a guardianship of the person only, or a determination of heirship, or grandparent visitation, or a mental or drug commitment? And these are but a few examples. How do we determine their value so as to make that subject-matter-jurisdiction determination? Is each case evaluated separately? To open that door would be to create the possibility of endless arguments over jurisdictional limits and which court is most appropriate. It would encourage forum shopping. It would create uncertainty and embed questions about subject matter jurisdiction in every case, increasing the numbers of appeals. None of these type cases have ever, to my knowledge been heard in county court. We have to ask ourselves whether all of these kinds of cases should be brought in county court I the first place? Is that what is best for litigants? Our court system has never operated that way in my experience. And experience is a good teacher. What has worked well over time often proves to be the best approach.

The majority opinion offers more certainty as to where subject matter jurisdiction lies than does the minority. Subject matter jurisdiction should have clear and unquestionable lines drawn. Lawyers and judges should not have to guess about whether the court does or does not have jurisdiction. It does no one any good to litigate a matter only to have it set aside 15 years later — as in Bronk — for lack of jurisdiction. For that reason, the appellate courts should always lean toward what makes the jurisdictional boundaries between our courts as unquestionable and clear as possible. We already have a dichotomy of case law on the boundary between chancery and circuit that should not be further compounded with confusion between chancery and county.

Justice Waller’s separate opinion makes the practical point that it is “nonsensical and contrary to the intent” of the paternity statute for a court to be able to adjudicate paternity, and yet be unable to adjudicate custody in the same action. Yet, the MSSC already ruled out that approach in Griffith v. Pell, 881 So.2d 184, 187-188 (Miss. 2004), when it affirmed that COA’s ruling that paternity cases are not to be used as a forum for custody determinations.

Finally, I think it needs to be taken into consideration that child custody is a weighty matter. The cases  are too numerous to mention in which our appellate courts have acknowledged the complex, difficult, and close questions that chancellors must resolve in determining the issue of what is in the best interest of a child. Resolution of custody issues involves analysis of the Albright factors in original cases, analysis of material change, adverse effect, and best interest with Albright analysis in modifications, and a determination of application of the natural parent presumption in third-party custody cases. Habeas corpus, visitation, grandparental visitation, child support, and joint-custody arrangements are other matters that are affected by custody determinations. Chancellors have developed considerable expertise over the years in all of these matters, and understand how serious and life-affecting are such decisions. Why should we want to burden other courts with that responsibility when we already have a wealth of wisdom and expertise on that subject and so many others like it in our chancery courts?

It remains to be seen how the high court will interpret and apply the language of the 2013 bill granting county courts jurisdiction ” … for the enforcement of orders awarding custody … ” in paternity actions. That language is not entirely unambiguous to me. Until then, this Bronk decision is a welcome beacon of certainty for trial courts and lawyers navigating in the shoal waters of jurisdiction between the two courts.

Maxims: Equity Will Act for the Disabled

October 14, 2013 § Leave a comment

It is a fundamental function of chancery court to protect those who can not protect themselves, either because of mental or physical disability or because of legal disability.

The maxim that confers this power is that “When parties are disabled, equity will act for them.”

Judge Griffith lays it out (with paragraphing added):

Infants and persons of unsound mind are disabled, under the law, to act for themselves. Long ago it became the established rule for the court of chancery to act as the superior guardian for all persons under such disability.

Thus it is that through the agencies of next friends, guardians ad litem, masters and the like the court acts with all care and solicitude to the preservation and protection of the rights of infants and persons non compos mentis; will not permit them to be proceeded against except upon due legal process actually served in the manner provided by law; will take nothing actually confessed against them; will make for them every valuable election; will rescue them from faithless guardians, designing strangers and even unnatural parents, and will in general take all necessary steps to conserve the best interests of these wards of the court. Griffith, § 45, p. 48. 

That is some strong language that reflects the breadth of the chancery court’s power to intervene for the benefit of those who cannot protect their own interests. Case law echoes Judge Griffith’s use of the term “superior guardian” time after time. It’s a bedrock concept of chancery jurisdiction. 

The Mississippi Constitution, § 159, vests chancery court with original jurisdiction in “Minor’s business” and “Cases of idiocy, lunacy, and persons of unsound mind.” The most recent case illustrating the constitutional dimensions of the chancery court’s power is DHS v. Watts, handed down December 6, 2012, in which the MSSC resolved a question of disputed jurisdiction between a chancery court in one county and a youth court in another county.

I previously posted here and here on the scope of the disabilities of minority.

CONSTITUTIONALLY UNPROTECTED FATHERS

April 9, 2013 § 2 Comments

If you do any adoption work, the case styled In the Matter of the Adoption of a Minor Child, A.S.E.L.: V.S.P v. M.J.W. and M.S.L., decided by the COA on April 2, 2013, is one you should be familiar with.

The facts are somewhat involved, but the essence is that Vincent, age 19, and Dana (pseudonyms), age 17, had a child together, whom they named Andy, born May 25, 2004. Vincent was not listed as the father on the birth certificate. Shortly after the birth, the young couple split and Dana moved from place to place with the baby. Vincent had little contact with Dana or the child, and he did nothing to help support his offspring.

Through a series of events, Dana’s brother Mark, and his wife, Melanie, obtained custody of Andy in youth court.

Melanie and Mark decided to adopt Andy, and in April, 2005, Dana signed a consent to adoption. Vincent was not made a party to the adoption because paternity had never been established. A judgment finalizing the adoption of the child by Mark and Melanie was entered December 16, 2005.

In September, 2009, nearly four years after the adption, Vincent filed an action to set it aside, claiming that it was void because he was not made a party, despite the fact that everyone involved should have known that he was the father, and that Dana was coerced into executing the consent.

The chancellor denied Vincent any relief, and he appealed. Judge Barnes, for the majority, wrote:

¶21.  … we note generally the setting aside of an adoption decree is disfavored in Mississippi. See [In Re Adoption of J.E.B., 822 So.2d 949, at 952] (¶10) (citing Humphrey v. Pannell, 710 So. 2d 392, 399 (¶35) (Miss. 1998)). There is a strong public policy declaration in Mississippi’s adoption statutes for the finality of adoption decrees. In re Adoption of M.D.T., 722 So. 2d 702, 705 (¶12) (Miss. 1998) (citing In re Adoption of R.M.P.C., 512 So. 2d 702, 707 (Miss. 1987)).

¶22. It is well established that the United States Supreme Court has offered constitutional protection to the rights of unwed fathers who have tried to have relationships with their children. Stanley v. Illinois, 405 U.S. 645, 651-59 (1972), held for the first time that under certain circumstances, such as when the putative father has participated in the care and custody of his child, the Constitution protected an unwed father’s parental rights. The Supreme Court clarified the rights of unwed fathers six years later in Quilloin v. Walcott, 434 U.S. 246 (1978), where the Court established the requirement of a meaningful relationship with the child, and not just proof of biology, in a putative father’s attempt to set aside an adoption. In Quilloin, the appellant did not petition for legitimation of his child for eleven years, between the child’s birth and the filing of the adoption petition. Id. at 249. The father failed to seek custody of the child, and never had significant responsibility for the child regarding supervision, education, and care. Id. at 247, 256. The Supreme Court held that the natural father’s substantive rights under the Due Process Clause were not violated by applying the “best interest of the child” standard in this instance, and the adoption was affirmed. Id. at 254, 256. In Caban v. Mohammed, 441 U.S. 380, 392-94 (1979), the Supreme Court concluded the unwed father, who had had custody of his children for several years and thereby established a significant, supportive relationship, should have the privilege of vetoing the adoption of his children, not merely receiving notice.

The court went on to affirm the chancellor’s ruling, holding that if a biological father has failed to establish the quality of relationship described in the US Supreme Court decisions and in MCA 93-17-6, then he has no constitutionally protected right to process and participation in the proceeding, and failure to serve him with process does not void the adoption judgment.

Several observations:

  • Not a criticism of counsel, but wouldn’t it have been more prudent to get a consent from Vincent? The undisputed facts establish that he was agreeable with the adoption at the time it was in process. If he did not want to admit paternity, language could have been added to the consent to the effect that he did not know whether he was the father, but, in the event that he might be, he consented to the adoption. Lawyers sometimes yield to the client’s desire to do it the easiest way, when a little more trouble now could avoid lots more down the line.
  • Add some protective language to your consents. Add language to the effect that it was not coerced, was freely given, and that the signer knows and understands that it is irrevocable and can not later be undone. It may not be conclusive in a later attack, but it would certainly buttress the defense of the original judgment.
  • Ponder measures you can take to immunize your judgment from attack months and even years down the road. Make sure you have tended to every detail, especially jurisdictional detail, in strict compliance with the statutes. In the past few years, it has become increasingly common for parties to agree to one thing, and then to hire another lawyer to try to set the agreement aside. The more armor-plating you add to your judgments (and property settlement agreements and contracts, for that matter), the more likely it is that they will survive attack.  

A UCCJEA TUG-OF-WAR

March 6, 2013 § Leave a comment

Many lawyers believe that the six-month provision of the UCCJEA fixes jurisdiction in the home state of the child. That’s not always the case, though.

Take, for instance, the case of Clifton v. Shannon, decided by the COA June 26, 2012.

Thomas and Dawn Clifton were divorced in DeSoto County in 1999. Dawn was awarded physical custody of their three-year-old daughter, Ashley, and they were to share joint legal custody. Thomas had reasonable visitation.

In December, 2005, Dawn moved to Colorado and remarried. In 2006, they entered into an agreed judgment adjusting visitation to accommodate the move.

In 2010, Thomas filed a petition in the Chancery Court of DeSoto County seeking modification of custody an an adjudication of contempt.

Dawn objected to jurisdiction, pointing out that Ashley’s home had been in Colorado for the preceding four-and-one-half years, and that there were no significant connections to Mississippi that would justify exercise of jurisdiction.

The chancellor took jurisdiction and awarded Thomas custody, based primarily on Ashley’s preference, and Dawn appealed. She challenged both jurisdiction and the chancellor’s substantive ruling.

On the issue of jurisdiction, here’s what Judge Fair’s opinion stated:

¶7. “Whether a court had jurisdiction under the UCCJEA to hear a child-custody dispute is a question of law, which we review de novo.” Miller v. Mills, 64 So. 3d 1023, 1026 (¶11) (Miss. Ct. App. 2011) (citing Yeager v. Kittrell, 35 So. 3d 1221, 1223 (¶¶12, 14) (Miss. Ct. App. 2009)). However, the factual findings underpinning the jurisdiction question are reviewed under the familiar substantial evidence and abuse of discretion standard. See White v. White, 26 So. 3d 342, 346-48 (¶¶10, 14) (Miss. 2010).

¶8. In Yeager, this Court stated “[a] court issuing an initial determination has continuing jurisdiction over the parties; no other court may modify the decree.” Yeager, 35 So. 3d at 1224 (¶16) (citing Miss. Code Ann. § 93-27-201 (Supp. 2009)). However, even if only one party remains in the state, a second state may modify the order if the issuing court finds that neither the child, nor the child and one parent, have a significant connection with the state, and that substantial evidence is no longer available in the issuing state. Only the issuing state may make this determination. Id. (internal citation omitted).

¶9. There was sufficient evidence that Ashley still maintained a significant connection to Mississippi because her father and extended family reside here. In a recent opinion addressing a chancery court’s jurisdiction over a proceeding for modification of custody, the Mississippi Supreme Court held that since the father had continuously resided in Mississippi:

[I]t was within the chancellor’s discretion to determine that both the child and [the father] had a “significant connection with this state.” Therefore, the chancery court properly has retained continuous, exclusive jurisdiction over [the] matter . . . . White v. White, 26 So. 3d 342, 347-48 (¶14) (Miss. 2010).

¶10. The DeSoto County Chancery Court was the court of original jurisdiction. Nothing in the record suggests that the chancellor erred in retaining jurisdiction. In fact, the Colorado court, where Dawn filed another custody action, had declined jurisdiction on the emergency relief that was requested and did not assume jurisdiction.

¶11. Dawn further contends that Mississippi is an inconvenient forum, as “the overwhelming abundance of substantial evidence and witnesses” with regard to the child’s home life are located in Colorado. She cites Mississippi Code Annotated section 93-27-207, which states in pertinent part:

(1) A court of this state which has jurisdiction under this chapter to make a child custody determination may decline to exercise its jurisdiction at any time if it determines that it is an inconvenient forum under the circumstances and that a court of another state is a more appropriate forum. The issue of inconvenient forum may be raised upon motion of a party, the court’s own motion, or request of another court.

(2) Before determining whether it is an inconvenient forum, a court of this state shall consider whether it is appropriate for a court of another state to exercise jurisdiction. For this purpose, the court shall allow the parties to submit information and shall consider all relevant factors, including:

(a) Whether domestic violence has occurred and is likely to continue in the future and which state could best protect the parties and the child;

(b) The length of time the child has resided outside this state;

(c) The distance between the court in this state and the court in the state that would assume jurisdiction;

(d) The relative financial circumstances of the parties;

(e) Any agreement of the parties as to which state should assume jurisdiction;

(f) The nature and location of the evidence required to resolve the pending litigation, including testimony of the child;

(g) The ability of the court of each state to decide the issue expeditiously and the procedures necessary to present the evidence; and

(h) The familiarity of the court of each state with the facts and issues in the pending litigation.

(Emphasis added.)

¶12. While Colorado may have been a more convenient forum for Dawn, the chancery court is endowed with the discretion to make that decision. Prior custody proceedings were conducted in Mississippi, and Ashley spent several weeks in Mississippi during the year visiting her father and family. We find that Mississippi was an appropriate forum and that the chancery court properly retained exclusive jurisdiction.

What you can draw from this aspect of the case is that the chancellor will have broad discretion in making a determination whether as the court of original jurisdiction it should take jurisdiction. You would be wise to make a record invoking as many of the factors set out in 93-27-207 as are applicable and favorable to your client’s side of the case. That discretion is not unfettered; there should be some basis in the record to support it. It seems to me that “The nature and location of the evidence required to resolve the pending litigation …” and “The ability of the court of each state to decide the issue expeditiously and the procedures necessary to present the evidence …” would be the key factors on which to focus your efforts.

Another lesson: don’t stop your analysis with where the home state of the child is located. That’s only one of a number of factors.

Remember that only the issuing state may determine whether it should continue to exercise jurisdiction. And MCA 93-27-202(1) provides that the original state no longer has continuing, exclusive jurisdiction after both parents have moved from the original state.

PLEADING THAT WHICH MUST BE PLED

July 26, 2011 § 2 Comments

If you will read the statutes that apply in your case, you will find exactly the language you need to plead a proper claim and lay out jurisdiction and venue. It’s right there in the code. The closer you adhere to the statutory language, the more likely it is that your complaint will withstand an MRCP 12(b)(6) motion.

For example, in a divorce case, you must plead all of the following: either one or more grounds set out in MCA §93-5-1, and/or irreconcilable differences as in MCA § 93-5-2; and proper venue as in MCA § 93-5-11; and that one of the parties meets the residence requirement of MCA § 93-5-5. All of the language you need to do that is right there in the statutes for your penalty-free plagiarization.

As a side note, many older chancellors through the years required the complaint to quote the language of the residency statute for divorce that, ” … [plaintiff] has been an actual bona fide resident within this state for six (6) months next preceding the commencement of this suit.” If you varied by a single word, you had pled yourself out of court. There may still be chancellors adhering to that practice. Whether your chancellor does or not, you can’t go wrong tracking the language of the statute.

Some lawyers copy other lawyers’ pleadings. That’s fine as long as the copied pleadings are adequate. Several years ago a few new lawyers used pleadings filed by a weathered, older lawyer as their template. You could tell because they slavishly replicated the older lawyer’s misstatement that “Plaintiff is entitled to a divorce from the defendant on the ground of habitual cruel and inhuman treatment as codiciled in Section 93-5-1, MCA.” If you’re going to copy, at least put some thought into what you’re doing.

The MRCP offer another source of pleading material. For instance, if you will read Rule 57, you will find every word you need to plead to obtain a declaratory judgment. Same with Rule 56 summary judgment. Same with Rule 65 for temporary restraining orders, temporary injunctions, and preliminary and permanent injunctions.

In modification of custody cases, you will be out of court on your ear unless you plead specifically in your petition that (1) there has been a material change in circumstances that (2) is having or has had an adverse effect on the minor child(ren), and (3) that it is in the best interest of the child(ren) to change custody to your client. McMurry v. Sadler, 846 So.2d 240, 243-4 (Miss. App. 2002). Note that in McMurry, the petitioner had pled only a material change justifying modification. The respondent moved to dismiss for failure to state a claim at the outset of trial, and the judge even prompted counsel that the word “adverse” was absent. The judge dismissed the pleading with leave to amend, and counsel for petitioner moved ore tenus to amend to add the language that an adverse effect would occur if modification were not granted. At that point, the chancellor found the pleadings insufficient as a matter of law and dismissed with prejudice. The COA affirmed.

As McMurry illustrates, faulty pleading will cause nothing but trouble. And it can be fatal. Look what happened there: the judge granted leave to amend as is prescribed in MRCP 12(b), but when counsel failed to fix the problem by amendment, the judge took the case off of the respirator and it died.

What if counsel for the respondent had said nothing about the adequacy of the pleadings before trial, but then had objected to every question about any adverse effect on the basis that it had not been pled? I saw that on more than one occasion when I was in practice, and the judge always sustained the objections, effectively gutting the petitioner’s case, or, more accurately, letting it gut itself. If you’re in that situation and you’re not too discombulated to think clearly, you might try making a Rule 15 motion for leave to amend. Maybe the judge will let you off the hook. At least you will have it in the record.

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:

  1. 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.      
  2. 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).      
  3. 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.

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.

MORE ON JURISDICTION FOR ADOPTION

June 16, 2010 § 5 Comments

I have already made the case for incorporating the adoption jurisdiction statute into your pleading forms here

What I want to emphasize is that there is so much more to the jurisdictional statute than just a change from 90-day to six-month residency since its amendment in 2007 that you need to be aware of and address.

The statute is § 93-17-3, MCA.  Pull out the statute and read it.  This is important.

Subsection (1) sets out five different, basic scenarios for jurisdiction: (a) that the minor lived in Mississippi with a parent, guardian, prospective adoptive parent or other person acting as a parent for six months AND there is available in Mississippi “substantial evidence concerning the minor’s present or future care”; or (b) the prospective adoptive parent lived in the state for six months AND there is available in Mississippi “substantial evidence concerning the minor’s present or future care”; or (c) the agency that placed the child for adoption is licensed in Mississippi and it is in the child’s best interest to adopt because the minor’s parents or the minor and the adoptive parents have a significant connection with this state AND there is available in Mississippi “substantial evidence concerning the minor’s present or future care”; or (d) the minor and the prospective adoptive parent are physically present in Mississippi and the child has been abandoned or there is an emergency to protect the child from mistreatment or neglect; or (e) no other state would have jurisdiction under prerequisites as (a) through (d), or another state has declined jurisdiction, and it is in the best interest of the minor for Mississippi to take jurisdiction.

From the foregoing, it is clear that it is not sufficient to allege merely that the parties have been residents of Mississippi for six months.  All of the applicable elements must be pled in order to invoke jurisdiction.

Subsections (2) and (3) prohibit Mississippi from taking jurisdiction where there is any action for custody of the minor pending in another state.   

In order to avoid problems with Section (2) and (3), the best practice would be to add an affirmative provision to your pleading addressing the jurisdictional issues raised in them, and adding a complete UCCJEA pleading would be prudent.

Subsection (4) limits adoption to an unmarried adult or a married person whose spouse joins in the petition.  Your pleading should make it clear what is the marital status of your adoptive parent(s).

Other provisions of Subsection (4):  The petition must be sworn and ” … filed in the chancery court of the county in which the adopting petitioner or petitioners reside or in which the child to be adopted resides or was born, or was found when abandoned or deserted, or in which the home is located to which the child has been surrendered by a person authorized to so do.” 

In my opinion, the pleading must set out one of the residency bases for jurisdiction, and it must be one that applies to the facts in your case.

The old requirements for a physician’s or nurse practitioner’s certificate and statement of property still continue in effect.

Subsection (4) also includes a requirement that the petitioner(s) must make an affidavit disclosing the amount of fees charged by adoption agencies or facilitators ” … and any other expenses paid by the petitioner or petitioners in the adoption process as of the time of filing the petition.”

In my opinion, the disclosure of fees and expenses requires a combination of any or as many of the following that apply: (a) a statement itemizing all such fees; (b) a statement that no fees have been incurred; (c) an itemization of “any other expenses.”  I believe that the phrase “any other expenses” includes attorney’s fees.

Adoption is a purely statutory creature.  Since it is in derogation of common law, the statute must be strictly construed and applied.  If you do not properly invoke jurisdiction of the court in your pleadings, you are running the risk that at some later point someone will try to get the adoption decree set aside — most likely after a wrongful death suit has been filed — and you will be embarassed or worse. 

Read the statute and plead it.  The extra trouble will be worth it.

JURISDICTION FOR ADOPTION

June 14, 2010 § 1 Comment

Effective July 1, 2007, Mississippi’s adoption statute was amended to change the residency requirement from 90 days to six months.  

§ 93-17-3, MCA, sets out the jurisdictional requirements, which now read more like the UCCJEA than like the old, familiar adoption statutes.  There are now jurisdictional requirements about availability in the state of information about the child, licensure of any adoption agency involved, and pendency of any adoption or custody proceeding in another state. 

PRACTICE TIP:  Get into your computers and add all of the statutory language verbatim into your adoption Complaint forms.  Then, when preparing your pleadings, strip out what does not apply.

Most judges I have spoken with agree that if the jurisdictional and other statutory language is not included in your Complaint, you will have to start over, which may include obtaining a second Consent or Joinder.

At least twice a month I have to point these matters out to attorneys.  Don’t embarass yourself with a client by being one of them.

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