February 18, 2020 § 1 Comment
Plaintiff files suit in county A. Defendant files a motion to transfer the suit to county B, claiming that venue is improper in county A. When the matter comes before the court for hearing, plaintiff offers her affidavit saying merely that venue is proper in A, without more. Defendant responds with a detailed affidavit. What law is the court to follow? How do we resolve the issue?
In Weir v. Mayze and Sago, an MSSC case decided January 16, 2020, Justice Ishee authored a succinct statement of the law:
¶6. At issue here is the trial court’s fact determination regarding the location of the accident. This Court has stated that the plaintiff’s choice of venue must be given the benefit of reasonable doubt and “must be sustained unless in the end there is no credible evidence supporting the factual basis for the claim of venue.” Flight Line, Inc. v. Tanksley, 608 So. 2d 1149, 1155 (Miss. 1992); see also Earwood v. Reeves, 798 So. 2d 508, 513 (Miss. 2001); Pisharodi v. Golden Triangle Reg’l Med. Ctr., 735 So. 2d 353, 354 (Miss. 1999). “[C]ourts begin with the well-pleaded allegations of the complaint,” which may be “supplemented—and contested—by affidavits or other evidence in cognizable form.” Tanksley, 608 So. 2d at 1155; see also Park on Lakeland Drive, Inc. v. Spence, 941 So. 2d 203, 207 (Miss. 2006). But if the “plaintiff wishes to defeat a motion to transfer venue, it follows that he or she should be prepared to present some credible evidence supporting his or her choice of forum.” Wilkerson v. Goss, 113 So. 3d 544, 557 (Miss. 2013).
This case involved a suit in county court, and the applicable venue statute was MCA 11-11-3, which is the circuit court statute. I see no reason why the rationale of the case law cited should not apply equally in chancery.
September 9, 2015 § 9 Comments
There are four fundamental facts you need to know about divorce in Mississippi:
- Venue is jurisdictional.
- Residence is jurisdictional.
- There must have been a marriage for there to be a divorce.
- 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.
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.
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:
- 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.
- 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).
- 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.
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]
July 26, 2010 § 4 Comments
[This outline is based in part on the 15th Chancery Court District Newsletter published by Chancellor Ed Patten]
Who is entitled to grandparent visitation?
Category One: Grandparents who have a change in status. § 93-16-3 (1), MCA.
— Child of the grandparents lost custody of the grandchild to the grandchild’s other parent, or
— Child of grandparents had parental rights terminated, or
— Child of grandparents is deceased.
Category Two: Grandparents who are not in Category One and have a “viable relationship.” § 93-16-3 (2), MCA.
— If grandparent had established a “viable relationship” with grandchild and grandchild’s parent or custodian hs unreasonably denied visitation with the grandchild, and
— Visitation rights will serve the grandchild’s best interest.
A “viable relationship” is where the grandparent has supported the grandchild in whole or in part for not less than six months prior to the filing of the petition, or the grandparent had frequent visitation for one year prior to the filing of the petition.
In order to determine whether visitation rights will serve the child’s best interest, and the extent of the visitation that should be ordered, the court must address the factors set out in Martin v. Coop, 693 So.2d 912, 916 (Miss. 1997), which are set out here.
Grandparent visitation is not available to grandparents of children given over for adoption, unless one legal parent is also a biological parent, or unless one adopting parent was related to the child by blood or marriage prior to the adoption. § 93-16-7, MCA.
Visitation is available to persons who become grandparetnts by virtue of adoption. § 93-16-7, MCA.
Siblings and other third parties have no common law or statutory right to visitation. Scruggs v. Satterfiel, 693 So.2d 924, 926 (Miss. 1997).
Venue is in the county where a child custody order was previously entered, or in the county where the child resides, if no custody order has been previously entered. § 93-16-3 (4), MCA.
Summons and service of process is had on the custodial parent(s), pursuant to Rule 81, MRCP.