October 1, 2019 § Leave a comment
Last week I posted about the Abercrombie case which relied on Burgess v. Williamson to reach the conclusion that res judicata may operate to bar raising a claim of lack of subject matter jurisdiction on appeal.
Back in April, the COA faced the same issue and reached the same conclusion.
On April 3, 2016, a chancellor granted grandparent visitation rights to Toni Lisenby-Grundy, the paternal grandmother, with her grandson, John. The defendant in that case was the maternal grandmother, Jessie Lou Price. A year later Jessie was found in contempt for not allowing Toni her visitation. Jessie never appealed either of these judgments, and she never raised the issue of lack of jurisdiction in either of them.
Again, in May, 2017, Jessie was found in contempt for the same behavior.
Following the May, 2017, contempt judgment Jessie appealed, asserting as one ground that the contempt judgment is void because the trial court never had jurisdiction in the first place to award grandparent visitation. The basis for her jurisdictional challenge is that neither her husband, Roy, nor her daughter Theresa, had been joined as required by statute. A post on who are those required parties is at this link. Jessie charged that the failure of the court to have jurisdiction over all persons required to be joined voids the original judgment and all of its subsequent judgments and renders them unenforceable. In other words, the trial court never acquired subject matter jurisdiction.
In the case of Price v. Lisenby-Grundy, an April 16, 2019, decision, the COA rejected Jessie’s position and affirmed. Judge Carlton wrote the majority opinion:
¶26. At no time did Jessie challenge the court’s jurisdiction as to Toni’s original grandparent’s visitation action; nor did Jessie appeal the April 3, 2015 visitation order. [Fn 6] The doctrine of res judicata, therefore, bars Jessie’s attempt to challenge that order on jurisdictional grounds in this appeal. We find that Burgess v. Williamson, No. 2017-CA-00788-COA, 2018 WL 4705709 (Miss. Ct. App. Oct. 2, 2018) [270 So. 3d 1031 (Miss. Ct. App. 2018)], is instructive on this issue. In that case, Burgess appealed a May 9, 2017 contempt order against her based upon the court’s determination that she failed to comply with a final judgment awarding custody and support entered on September 8, 2015. Burgess, 2018 WL 4705709, at *2 (¶¶11-12). Among other issues on appeal, Burgess asserted that the chancery court “erred in assuming jurisdiction” over the matter. Id. at *2 (¶12).
6 We also observe that at no time did Theresa Price or Roy Price object to the chancery court’s jurisdiction on any basis, and neither Roy nor Theresa Price appealed the April 2015 visitation order.
¶27. We held that “if Burgess is trying to argue that the chancery court lacked jurisdiction to enter the original (September 8, 2015) final judgment awarding custody and support, her claim is barred by the doctrine of res judicata.” Id. at *3 (¶17). In so holding, we found that Burgess had defended the original proceeding on the merits, and did not appeal the September 8, 2015 judgment. The same is true in this case. Jessie was a party to Toni’s visitation action, participated in that action on the merits, and never challenged the chancery court’s jurisdiction on any basis. Indeed, Jessie Price’s attorney agreed to the form of the final order of visitation entered in the consolidated proceeding, which specifically provides that “[the] Court has complete and plenary jurisdiction over the subject matter and the parties involved herein.” Finally, Jessie did not appeal the April 2015 visitation order.
¶28. As we explained in Burgess, 2018 WL 4705709, at *3 (¶17), “[a]ny challenge to the . . . court’s jurisdiction should have been taken up in the original proceeding or on direct appeal from the original order.” In this regard, “[o]nce a case is litigated to a final judgment, and no appeal is taken, a party who participated in the original litigation cannot collaterally attack the court’s jurisdiction in a later proceeding.” Id. (citing Phillips v. Kelley, 72 So. 3d 1079, 1084 (¶18) (Miss. 2011) (“[S]ubject matter jurisdiction . . . may not be attacked collaterally.”) (quoting Travelers Indem. Co. v. Bailey, 557 U.S. 137, 152 (2009)). See also Dep’t of Human Servs. v. Shelnut, 772 So. 2d 1041, 1045 (¶13) (Miss. 2000) (“The principles of res judicata apply to questions of jurisdiction as well as to other issues whether the questions relate to jurisdiction of the subject matter or jurisdiction of the parties.”); Restatement (Second) of Judgments §12 (1982) (“When a court has rendered a judgment in a contested action, the judgment precludes the parties from litigating the question of the court’s subject matter jurisdiction in subsequent litigation [subject to three narrow exceptions, inapplicable in this case].”). We find the same principle applies here and bars Jessie’s attempt to challenge the April 3, 2015 visitation order on jurisdictional grounds.
Not much more to say about that.
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.
September 24, 2019 § Leave a comment
Yesterday we visited the COA’s decision in Abercrombie v. Abercrombie, in which the majority rejected Faith Abercrombie’s argument that the trial court’s order should be set aside for lack of UCCJEA subject matter jurisdiction. The COA ruled that the issue was precluded by operation of res judicata.
Judge McCarty lodged a strong dissent that bears reading. Here it is:
¶36. The revelation of the extensive fraud that both parents purportedly committed destroys jurisdiction because we have learned for a fact that this case is centered in Louisiana. Since subject matter jurisdiction cannot be waived and cannot be achieved through deception or fraud, I believe we are required to reverse for lack of jurisdiction.
¶37. Our Uniform Child Custody Jurisdiction and Enforcement Act decrees that “[n]o infant shall be adopted to any person if either parent, having been summoned, shall appear and object thereto before the making of a decree for adoption . . . .” Miss. Code Ann. § 93-17-7 (Rev. 2014). The Act establishes that both parents are necessary parties to an adoption proceeding. Id. We know for a fact that this prerequisite of the Act was not complied with because the slow [sic] reveal that the natural father was not made aware of (much less provided consent for) the child’s adoption.
¶38. This was fraud, as even the parties have now belatedly conceded. “When consent for a supposedly ‘uncontested’ adoption is gained by intentionally concealing the identity of a known natural parent from the chancellor, a fraud is perpetrated upon the court.” Doe v. Smith, 200 So. 3d 1028, 1030 (¶1) (Miss. 2016). There was fraud in Doe too, where the natural mother falsified her son’s birth certificate to facilitate his adoption, and this “deception caused the court to grant an adoption to a third party based on false, material representations.” Id.
¶39. Such a fraud thwarted the whole purpose of the Act and the court’s role in following it because “an intentional fraud aimed solely to circumvent a natural parent’s statutorily mandated consent to an adoption undermines the effective administration of justice.” Id. at 1033 (¶17).
¶40. Because the adoption is void based upon fraud, neither of those two people who committed the fraud should have standing. “[A] lack of standing robs the court of jurisdiction to hear the case.” In re Estate of Ivy, 121 So. 3d 226, 243-44 (¶88) (Miss. Ct. App. 2012). Therefore, “any ruling on a case brought by someone who lacked standing is void ab initio.” Id. When a divorce decree is invalidated on grounds of fraud related to child custody and adoption, it follows that all subsequent custody determinations should be deemed void ab initio. We have previously held that “when a divorce is invalidated, all matters decided as a result of the divorce decree are null and void and should be brought in another hearing.” Clark v. Clark, 43 So. 3d 496, 502 (¶25) (Miss. Ct. App. 2010). Such matters to be reversed include the award of “alimony, child custody, and child support.” Id. (emphasis added). When the chancery court vacated the original judgment of divorce in this case, as it was required to do, it should have also vacated all custody determinations stemming from the divorce.
¶41. Our inquiry should end there. A court cannot find that it has jurisdiction over a custody dispute between two adoptive “parents” when the validity of the adoption itself has been shown to be fraudulent. For our courts to assert jurisdiction over a child born to a Louisiana resident, “adopted” by pretense in Louisiana, and who has resided in Louisiana at all times following the so-called adoption, would directly contradict the very purpose of the Act. The UCCJEA, now nearly universal, was enacted among the separate states in part to prevent exactly this forum-shopping.
¶42. The fact that the issue of jurisdiction arises at this late date does not matter because subject matter jurisdiction cannot be waived. Ridgeway v. Hooker, 240 So. 3d 1202, 1208 (¶23) (Miss. 2018). Nor can subject matter jurisdiction be acquired through the passage of time because a party may raise the issue of subject matter jurisdiction at any point, including on appeal. Pierce v. Pierce, 132 So. 3d 553, 560 (¶14) (Miss. 2014). Our Supreme Court has long been blunt that we must examine whether we have jurisdiction because “[s]ubject matter jurisdiction, which is succinctly defined as the authority of a court to hear and decide a particular case, depends on the type of case at issue, and we have the primary duty [to
determine sua sponte] whether a particular case lies within our jurisdiction.” Common Cause of Miss. v. Smith, 548 So. 2d 412, 414 (Miss. 1989).
¶43. The United States Supreme Court agrees this is a core duty of courts. “When a requirement goes to subject-matter jurisdiction, courts are obligated to consider issues [sua sponte] that the parties have disclaimed or have not presented.” Gonzalez v. Thaler, 565 U.S. 134, 141 (2012). This can be frustrating to the Judiciary, as the Court points out, because “[t]he objections [to jurisdiction] may be resurrected at any point in the litigation, and a valid objection may lead a court midway through briefing to dismiss a complaint in its entirety.” Id. As a result “months of work on the part of the attorneys and the court may be wasted.” Id.
¶44. This is unfortunately one such case—where months of effort by the lawyers and the court system end up with a dismissal. Yet we must reverse, and since when we do not have jurisdiction, we should not rule. Accord Common Cause of Miss., 548 So. 2d at 418 (dismissing the appeal sua sponte for lack of jurisdiction because contempt was criminal, not civil); Dudley, 979 So. 2d at 693 (finding a lack of jurisdiction sua sponte due the notice of appeal being filed untimely); Cotton v. Veterans Cab. Co., 344 So. 2d 730, 731 (Miss. 1977) (finding a lack of jurisdiction sua sponte because there was not a final judgment); Bolivar v. Waltman, 85 So. 3d 335, 339 (¶14) (Miss. Ct. App. 2012) (finding a lack of jurisdiction because necessary parties were not included).
¶45. Our prior rulings related to this point do not result in a procedural bar either. In the case addressed supra, we reviewed the nonpayment of child support, not custody, making the issue of jurisdiction under the UCCJEA inapplicable. Burgess v. Williamson, 270 So. 3d 1031, 1035 (¶16) (Miss. Ct. App. 2018). More importantly, the mother’s challenge of subject matter jurisdiction was deemed res judicata because she “answered [the] original petition for custody and child support, she filed a counterclaim, the case proceeded to trial, and the chancery court entered a final judgment.” Id. at 1036 (¶18). The mother in this case took none of these procedural steps taken by the mother in the prior litigation.
¶46. Even if the mother’s claim was barred under the doctrine of res judicata, the law recognizes three exceptions to allow a party to litigate the issue of subject matter jurisdiction after a judgment has been rendered:
(1) The subject matter of the action was so plainly beyond the court’s jurisdiction that its entertaining the action was a manifest abuse of authority; or
(2) Allowing the judgment to stand would substantially infringe the authority of another tribunal or agency of government; or
(3) The judgment was rendered by a court lacking capability to make an adequately informed determination of a question concerning its own jurisdiction and as a matter of procedural fairness the party seeking to avoid the judgment should have opportunity belatedly to attack the court’s subject matter jurisdiction.
Restatement (Second) of Judgments § 12 (1982).
¶47. In the present case, the subject matter was so plainly beyond Mississippi’s jurisdiction that it was an abuse of authority for the chancery court to hear the case. The only connections between the child and Mississippi are that he was born in Mississippi and his “adoptive” father currently resides in Mississippi. Both points fail to secure jurisdiction: the child has lived in Louisiana since shortly after his birth, and because the validity of the “adoption” has been brought into question, we cannot assume jurisdiction based on this fact.
¶48. For Mississippi to assert jurisdiction over this case would be to usurp jurisdiction from Louisiana, infringing upon the State’s authority to govern its own citizens. The child in question was born to a Louisiana resident, was allegedly “adopted” in Louisiana, and domiciled in Louisiana at all times following the “adoption.”
¶49. Further, the Abercrombies’ actions of defrauding and concealing facts from the chancery court deprived the court of the ability to properly make an adequate and informed decision regarding whether it had jurisdiction to hear the case. With the truth concerning the alleged adoption now unearthed, it is clear that our State does not and could not have jurisdiction over the matter.
¶50. Our courts do have continuing jurisdiction over the misrepresentations the parties made in this case because they were submitted to our courts and made within our State. See M.R.C.P. 11. It is a felony to “willfully and corruptly swear, testify, or affirm falsely to any material matter . . . in any court of law or equity . . . .” Miss. Code Ann. § 97-9-59 (Rev. 2014) (emphasis added); see also Miss. Code Ann. § 97-9-61 (Rev. 2014) (penalty of perjury in a non-felony trial not to exceed ten years). While this case should be dismissed for lack of jurisdiction, that does not mean the repeated fraud on our court system should go without penalty.
¶51. For these reasons I must respectfully dissent.
September 23, 2019 § Leave a comment
We all know that subject matter jurisdiction cannot be waived or conferred on a court by consent. The court either has it or does not. And it is often said that it can be raised at any stage of the proceeding, although that is too sweeping a statement, as we will see.
But can the issue of subject matter jurisdiction become res judicata so that, if facts emerge that call it into question later, the issue cannot be raised at that point?
That question was at the center of a recent case before the COA. The procedural history is somewhat convoluted. Faith Abercrombie and her ex, Jonathan, were engaged in lengthy, contentious litigation over their adopted son, Reed. There had been prior judgments adjudicating that Mississippi had jurisdiction under the UCCJEA that had been appealed twice and were affirmed. After the chancellor ruled on March 9, 2017, on various issues, Faith filed a motion to set aside the order and all prior orders touching custody for lack of jurisdiction, claiming that Mississippi was not her son’s home state at any relevant time. When the motion was denied, Faith appealed.
In the meantime, with the appeal pending, Faith’s attorney learned that the adoption had been procured by fraud on the part of both Faith and Jonathan, and disclosed the fact to the court. On December 7, 2018, the chancellor vacated the original judgment of divorce, fined both of them, issued a writ of habeas corpus for the child, and directed the clerk to send copies of its order to the Louisiana adoption court and the district attorney. Faith filed a motion with the COA asking the court to stay execution of the order vacating the divorce, and a panel of the court denied the motion because the December, 2018, order was not the subject of the order appealed from.
In Abercrombie v. Abercrombie, handed down August 20, 2019, the COA affirmed. Judge Jack Wilson wrote for the 9-1 majority:
¶22. Faith argues that the chancery court lacked subject matter jurisdiction to make an “initial child custody determination” under the UCCJEA, Miss. Code Ann. § 93-27-201, because Mississippi was not Reed’s home state. She further argues that all subsequent orders touching on Reed’s custody and visitation are void due to lack of jurisdiction. However, we conclude that Faith is barred from re-litigating this issue, which has been decided in at least three prior final judgments. [Fn 2]
[Fn 2] Although the chancery court set aside the original divorce judgment based on fraud on the court, we conclude that this issue is not moot for at least three reasons. First, even after setting aside the divorce judgment, the chancery court has continued to exercise jurisdiction with respect to Reed’s custody, and Faith continues to contest the court’s jurisdiction to do so. Second, Faith argues that all of the chancery court’s prior judgments and orders touching on Reed’s custody and visitation must be set aside for lack of jurisdiction, including prior orders finding her in contempt and awarding attorney’s fees. However, the chancery court’s December 7, 2018 order only set aside the original divorce judgment, not all of the court’s judgments and orders. Third, if we agreed with Faith that the chancery court lacked jurisdiction, we would also be compelled to reverse and render the award of attorney’s fees that we address below in Part II.
¶23. This Court recently addressed a similar issue in Burgess v. Williamson, 270 So. 3d 1031 (Miss. Ct. App. 2018). In Burgess, the father (Williamson) filed a petition for custody;the mother (Burgess) filed an answer and a counterclaim for custody; the chancery court found that it had jurisdiction and awarded custody to Williamson; and Burgess did not appeal from the final judgment. Id. at 1033, 1037 (¶¶4-6, 18). In a subsequent contempt proceeding, Burgess argued that the chancery court lacked subject matter jurisdiction under the UCCJEA to enter its original judgment determining the child’s custody. However, this Court held that the doctrine of res judicata barred Burgess’s argument. Id. at 1035-36 (¶¶17-18). We explained that “[o]nce a case is litigated to a final judgment, and no appeal is taken, a party who participated in the original litigation cannot collaterally attack the court’s jurisdiction in a later proceeding.” Id. at 1036 (¶17); see also Phillips v. Kelley, 72 So. 3d
1079, 1084 (¶18) (Miss. 2011) (“[S]ubject matter jurisdiction . . . may not be attacked collaterally.”); Dep’t of Human Servs. v. Shelnut, 772 So. 2d 1041, 1045 (¶13) (Miss. 2000) (“The principles of res judicata apply to questions of jurisdiction . . . whether the questions relate to jurisdiction of the subject matter or jurisdiction of the parties.”).
¶24. The same reasoning applies here. [Fn 3] Indeed, whereas Burgess involved just one prior final judgment, this case had been litigated to a final judgment three times before Faith filed the motion that is the subject of this appeal. In each of those prior judgments, the chancellor found that the chancery court had jurisdiction over the parties and the subject matter, and each time the court’s judgment was affirmed on appeal or was not appealed. First, the April 2015 final judgment of divorce specifically found that the court had jurisdiction over the parties and the subject matter. Faith appealed, but this Court affirmed the final judgment of the chancery court because there was no evidence in the record to support Faith’s assertion that the chancery court lacked jurisdiction. Abercrombie, 193 So. 3d at 683 (¶¶10, 12). Second, in June 2015, Faith filed a motion for relief from judgment in which she attacked the chancery court’s jurisdiction. The chancellor denied Faith’s motion in an August 2016 final judgment that (a) again specifically found that the court had continuing, exclusive jurisdiction and (b) clearly noted that it was a “Final Judgment” for purposes of Mississippi Rule of Civil Procedure 54. Faith did not appeal from that final judgment. Third, in March 2017, the chancellor entered an order on issues of custody, visitation, child support, and attorney’s fees. That order again found that the court had continuing, exclusive jurisdiction. Faith did not appeal that ruling either; instead, she waited more than thirty days and then filed yet another motion attacking the chancery court’s jurisdiction.
3 Contrary to the dissent’s assertions, Burgess is not materially distinguishable. In Burgess, this Court addressed Burgess’s argument “that the chancery court lacked jurisdiction to enter the original . . . final judgment awarding custody and support,” and we held that her claim was “barred by the doctrine of res judicata.” Burgess, 270 So. 3d at 1035 (¶17). We noted that even the issue of subject matter jurisdiction is subject to the doctrine of res judicata. Id. at 1036 (¶17). In doing so, we simply reiterated what the Supreme Court had already held in both Phillips and Shelnut, supra.
¶25. Because this case has been litigated to a final judgment three times previously, the chancery court’s jurisdiction to enter its original judgment and initial determination of custody is res judicata. Phillips, 72 So. 3d at 1084 (¶18); Shelnut, 772 So. 2d at 1045 (¶13); Burgess, 270 So. 3d at 1035-36 (¶¶17-18). Therefore, the chancellor correctly ruled that Faith’s challenge to the court’s jurisdiction is barred. [Fn 4]
[Fn 4] Although the chancellor denied Faith’s motion based on the somewhat related concepts of waiver and judicial estoppel, we may affirm on alternative grounds. See Brocato v. Miss. Publishers Corp., 503 So. 2d 241, 244 (Miss. 1987).
Judge McCarty wrote a sharp dissent that we will look at tomorrow.
June 24, 2019 § Leave a comment
Jhonte Wiggins received $350,000 in a personal-injury settlement. Almost all of the money wound up in accounts of his fiancé, Chasity Anderson. Jhonte became seriously ill and died. His mother, Darnice Wiggins, was appointed administratrix of her son’s estate, and, as administratrix, Darnice sued Chasity for conversion. The chancellor granted summary judgment, and Chasity appealed claiming that chancery court lacked subject matter jurisdiction.
The COA affirmed in Anderson v. Wiggins, decided May 14, 2019. Here is how Judge Greenlee’s opinion addressed the issue:
¶8. Anderson argues that chancery court was not the proper court in which to file a claim for conversion. She asserts that the court lacked subject-matter jurisdiction over the claim. “The question of subject matter jurisdiction is an issue of law to which this Court must apply a de novo standard of review.” In re Adoption of J.D.S., 953 So. 2d 1133, 1136 (¶11) (Miss. Ct. App. 2007).
¶9. Our State’s Constitution limits chancery-court jurisdiction:
The chancery court shall have full jurisdiction in the following matters and
(a) All matters in equity;
(b) Divorce and alimony;
(c) Matters testamentary and of administration;
(d) Minor’s business;
(e) Cases of idiocy, lunacy, and persons of unsound mind;
(f) All cases of which the said court had jurisdiction under the laws in
force when this Constitution is put in operation.
Miss. Const. art. 6, § 159.
¶10. The matter before us is a conversion claim. “Although property of which conversion is alleged is in the custody of a chancery court,” Georgia-Pac. Corp. v. Blakeney, 353 So. 2d 769, 772 (Miss. 1978) (quoting 18 Am. Jur. 2d Conversion § 135 (1955)), an action for conversion alone is best heard in the circuit court. But if “there is one issue of exclusive equity cognizance, that issue can bring the entire case within subject matter jurisdiction of the chancery court and that court may proceed to adjudicate all legal issues as well.” Newton v. Brown, 198 So. 3d 1284, 1288 (¶20) (Miss. Ct. App. 2016) (internal quotation marks omitted).
¶11. Wiggins’s complaint only asserts a claim for conversion. She does not indicate any other tort or any other claim for the chancery court to consider. She asserts that the protection of the estate’s assets entitles her to jurisdiction within the chancery court. She contends that Anderson cannot now claim a lack of subject-matter jurisdiction because the chancery court already rendered its decision. But jurisdictional challenges may be raised at any point during litigation, as well as on appeal. Pierce v. Pierce, 132 So. 3d 553, 560 (¶14) (Miss. 2014). Mississippi Rule of Civil Procedure Rule 12(h)(3) provides that “[w]henever it appears by suggestion that the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action or transfer the action to the court of proper jurisdiction.” Additionally, our state constitution determines the ability of appellate courts to reverse a judgment of a chancery court when it lacks jurisdiction:
No judgment or decree in any chancery or circuit court rendered in a civil cause shall be reversed or annulled on the ground of want of jurisdiction to render said judgment or decree, from any error or mistake as to whether the cause in which it was rendered was of equity or common-law jurisdiction; but if the Supreme Court shall find error in the proceedings other than as to jurisdiction, and it shall be necessary to remand the case, the Supreme Court may remand it to that court which, in its opinion, can best determine the controversy.
Miss. Const. art 6, § 147.
¶12. At the summary-judgment hearing, the chancery court discussed the jurisdictional concerns and found that it had jurisdiction over the claim. Specifically, it found that under Wiggins v. Perry, 989 So. 2d 419, 430 (¶28) (Miss. Ct. App. 2008), Anderson could not complain about subject-matter jurisdiction after the court ruled on the motion for summary judgment.
¶13. In that case, Wiggins did not raise the issue of subject-matter jurisdiction until after the chancery court granted summary judgment. Therefore, on appeal, our court was unable to reverse the case on the issue of subject-matter jurisdiction alone. Id. at 430-31 (¶28). We ultimately reversed the decision on other grounds and remanded the case with instructions that it be transferred to the proper court. Id. at 433 (¶47).
¶14. In the present case, the chancery court held:
Now, [the Mississippi Constitution] says a lot. And our case law says even more. In one case . . . it is stated that: “Because a party did not raise the issue of subject matter jurisdiction until after summary judgment had been granted in favor of the adverse party, the reviewing court could only reverse for lack of subject matter jurisdiction where there was also some other trial court error warranting reversal.”
The chancery court found that subject-matter jurisdiction was never an issue before the motion for summary judgment. In her answer to the conversion complaint, Anderson asserted lack of subject-matter jurisdiction as an affirmative defense. But at no point thereafter did she actively pursue that defense. In fact, she never filed any motion based on those grounds. As in Wiggins, without some other error, precedent prevents us from reversing this case on
the issue of subject-matter jurisdiction alone in this situation. [Fn 1]
[Fn 1] 3 Jeffrey Jackson, Mary Miller, and Donald Campbell, Encyclopedia of Mississippi Law § 19:188 (2d ed. 2018) (“Ordinarily, a court of appeals could reverse for lack of subject matter jurisdiction in the trial court even where the parties may not have raised the issue. Section 147 of the Mississippi Constitution provides that the supreme court is without power to reverse where the only error found is ‘want of jurisdiction to render said judgment or
decree, from any error or mistake as to whether the cause . . . was of equity or common-law jurisdiction.’”); James W. Shelton, Miss. Chancery Prac. § 2:7 (2018) (“[T]he Constitution prohibits the Supreme Court from reversing a case where the only error is that the case was brought in chancery court when it should have been brought in circuit court, or vice versa.”); c.f. Waits v. Black Bayou Drainage Dist., 186 Miss. 270, 185 So. 577, 578 (1939) (“Section 147 of the Constitution has no application. It provides that no cause shall be reversed by the Supreme Court on the ground alone of a mistake in the trial court as to whether it is of law or equity jurisdiction. The trouble here is that neither the chancery court nor the circuit court had jurisdiction of this cause, as we will undertake to demonstrate. In the case of Indianola Compress & Storage Co. v. Southern R.R. Co., 110 Miss. 602, 70 So. 703, [704 (Miss. 1916),] [s]ection 147 of the Constitution applied for it was not a question of jurisdiction, but a mistake in jurisdiction.”).
I posted about a circuit judge reforming a deed on June 5, 2019.
February 15, 2011 § Leave a comment
Before a Mississippi Chancery Court can consider whether to grant a divorce, it must make four fundamental findings:
- That the parties were married to each other (subject matter jurisdiction);
- That the parties are properly before the court by process and notice (personal jurisdiction);
- That the action is filed in the appropriate county (venue, also called “venue jurisdiction”); and
- That at least one of the parties meets the statutory residency requirement, and that residence in Mississippi was not obtained in order to get a divorce.
These are commonly referred to as the “jurisdictional facts,” and you can not even get to address whether there are grounds, or equitable distribution, or any other divorce issues unless the jurisdictional facts are established in the record.
If you are in doubt about the proper venue of your action, consulting MCA § 93-5-11 will give you the answer.
All of the above may appear elementary to you, but it is astonishing to me how many contested divorce cases I see presented where neither attorney establishes even one or more of the jurisdictional facts, and there are many where none of them are mentioned. In some cases, I have invoked MRE 614(b) to get the information myself into the record; after all, if I lack subject matter jurisdiction or venue is improper any action I take is void, and if I lack personal jurisdiction any action is voidable.
Remember that your pleadings are not evidence. Just because you pled it does not put it into the record. If you don’t establish jurisdiction on the record so that the judge’s finding of jurisdiction is supported by evidence, you are leaving your client’s judgment vulnerable to attack by the disgruntled other party.
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:
- 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.
- 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).
- 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]