MISSING THE ADVERSE EFFECT TO MODIFY
April 1, 2013 § 1 Comment
In Roberts, v. Roberts, decided March 19, 2013, the COA (majority opinion by Judge Roberts, btw) reversed a chancellor’s decision modifying custody where the chancellor did find material change in circumstances, but did not make a finding of adverse effect on the child, and did not address the Albright factors.
Scott Roberts and his ex-wife Stephanie had come to an agreement that their son Tristan could live with Scott, and that Scott could reduce the child support concomitantly. Scott did not pay the reduced amount as agreed, however. Stephanie later sued Scott for unpaid child support in the amount originally ordered by the court. Scott counterclaimed for custody and defended against her claim for child support that he should be liable only for the extra-judicial amount to which the parties had agreed.
Scott’s pleading for custody, styled “counter motion for custody,” did not expressly pray for modification of custody. Instead, it asked that “hereafter, each party should be responsible for child support of the child in their respective custody with neither party responsible for future support of the other.” It also stated that because Tristan had moved in with Scott full-time, there had been a material change in circumstances warranting modification so that neither should pay child support to the other. The COA, at ¶ 29 found these allegations sufficient to put the issue of modification of custody before the trial court, on the basis that, under MRCP 8(f), “All pleadings shall be construed to do substantial justice” and, per the comment, ” … that the rights of the client are not lost by the poor drafting skills of counsel.” The court concluded that to do otherwise would be to favor form over substance.
The court reversed and remanded the issue of custody, however. Here’s what the decision said:
The COA reversed and remanded, however, so the pleading, with its flaws, goes back for the chancellor for a do-over. Here’s what the COA said:
¶30. Next, Stephanie claims the chancellor erred by modifying custody of Tristan without first finding that there had been a material change in circumstances adverse to Tristan’s best interest. “The Mississippi Supreme Court [has] held that the prerequisites to the modification of child custody are: (1) proving a material change in circumstances which adversely affects the welfare of the child and (2) finding that the best interest of the child requires the change of custody.” McMurry v. Sadler, 846 So. 2d 240, 243 (¶13) (Miss. Ct. App. 2002) (citing Touchstone v. Touchstone, 682 So. 2d 374, 377 (Miss. 1996)). “[F]or the custody order to be modified so as to transfer custody to the non-custodial parent, the non-custodial parent must prove that since the entry of the decree or order sought to be modified, a material change of circumstances has occurred within the custodial home which adversely affects the minor child’s welfare.” Id. at 244 (¶13). “Therefore, in order for the court to proceed on a matter for custody modification, the pleadings must contain allegations that a material change has occurred which adversely affects the child.” Id. It is inappropriate to modify child custody when the non-custodial parent did not file a motion that specifically stated or alleged that there had been a material change in circumstances that adversely affected a child. Id. at (¶14).
¶31. Scott did not claim that there had been a material change in circumstances or that such a change was adverse to Tristan. Furthermore, the chancellor merely held that there had been a material change in circumstances. The chancellor did not find that a material change in circumstances was adverse to Tristan. Furthermore, the chancellor did not conduct an Albright analysis to determine which parent should have custody of Tristan. This Court has held that when considering a modification of child custody, the proper approach is to first identify the specific change in circumstances, and then analyze and apply the Albright factors in light of that change. Where there is no specific identification of the alleged change in circumstances, this Court is placed in the position of attempting to guess what the chancellor determined was a proper basis for a change in custody. Thornell v. Thornell, 860 So. 2d 1241, 1243 (¶6) (Miss. Ct. App. 2003) (quoting Sturgis v. Sturgis, 792 So. 2d 1020, 1025 (¶19) (Miss. Ct. App. 2001)) (quotation marks omitted). Here, we can only guess why the chancellor found that a material change in circumstances was adverse to Tristan’s best interest. Furthermore, the chancellor did not conduct an Albright analysis before he found that it was appropriate to award custody of Tristan to Scott. In Thornell, 860 So. 2d at 1243 (¶¶7-8), this Court reversed a chancellor’s decision to modify child custody, because the chancellor failed to identify a specific change in circumstances that adversely affected the welfare of the child, and the chancellor failed to conduct an on-the-record analysis of the Albright factors. This Court concluded that it was appropriate to reverse the chancellor’s judgment and remand the matter to the chancellor for further proceedings. Id. at (¶¶8-9). Following Thornell, we remand this matter to the chancellor for further proceedings regarding how Tristan’s decision to live primarily with Scott amounted to a material change in circumstances adverse to Tristan’s best interest in light of the fact that Scott and Stephanie agreed that they would have joint physical custody of Tristan and Carleigh.
I agree that the case should have been reversed, but in my opinion the pleadings were fatally defective on two counts:
- In McMurry v. Sadler, 846 So.2d 240, 243-4 (Miss. App. 2002), it was held that a mere allegation of material change in circumstances in a pleading was inadequate to support a claim for modification, and that the pleading must expressly include the allegation that the change has had an adverse effect on the child. A distinguishing factor here is that, apparently, that issue was not contemporaneously raised to the chancellor as it was via a motion to dismiss in McMurry; but it was raised in this case by Stephanie on appeal. Although the appellate opinion references McMurry, it does so not for the pleading aspect of the case, but only for its holding that the proof must support a finding of adverse effect. I agree with Judge Roberts that the requirement imposed in McMurry elevates form over substance, but that is what the appellate court specifically mandated for this specific cause of action, “notice pleading” notwithstanding.
- These pleadings do not even state a claim upon which relief can be granted. In Arnold v. Conwill, 562 So.2d 97 (Miss. 1990), the supreme court held that where the parties agree for a child to live for a time with the other parent, that circumstance standing alone does not support modification of custody. Since that is all that Scott pled, I don’t see how he could get a permanent modification on the strength of this pleading.
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.
The Better Chancery Practice Blog 