Carpenter v. Allen

Decision Date15 March 1989
Docket NumberNo. 58172,58172
Citation540 So.2d 1334
PartiesMelinda S. Allen CARPENTER v. Edward E. ALLEN.
CourtMississippi Supreme Court

David Ringer, Hazel Cunningham, Ringer & Cunningham, Florence, for appellant.

Anselm J. McLaurin, McLaurin & McLaurin, Brandon, for appellee.

En Banc,

ROBERTSON, Justice, for the Court:

I.

The dispositive issue in this case arises by reason of the Uniform Child Custody Jurisdiction Act and transfer thereunder of an Ohio child custody matter to a chancery court in this state. The defendant father, though subject to in personam jurisdiction in Ohio, has no minimum contacts with Mississippi and objected, when sued regarding his child support obligations, to in personam jurisdiction in this state. The Chancery Court agreed and granted his motion to dismiss. Writing a variation on a theme by Kulko, we affirm.

II.

Melinda S. Allen Carpenter (Carpenter), formerly Melinda S. Allen, is an adult resident citizen of Rankin County, Mississippi. Carpenter was the plaintiff below and is the appellant here. Edward E. Allen (Allen) is an adult resident citizen of Fairhope, Alabama. Allen was the defendant below and is the appellee here.

Carpenter and Allen were formerly married to each other and lived in the state of Ohio. One child was born to the marriage, Diane M. Allen, whose date of birth is July 17, 1971. On November 29, 1974, the parties were divorced by a judgment of the Court of Common Pleas, Franklin County, Ohio. That judgment of divorce placed custody of the child, Diane, with Carpenter and ordered that Allen pay child support in the amount of $25.00 per week.

Carpenter has since remarried and has moved to Rankin County, Mississippi, where she lives with her new husband and, as well, the child, Diane, who is now seventeen years of age.

Carpenter suggests that Allen has fallen into arrears in his child support obligations. On September 2, 1986, she procured a judgment of the Court of Common Pleas, Franklin County, Ohio, transferring jurisdiction over this case to the Chancery Court of Rankin County, Mississippi, and on October 6, 1986, the Chancery Court entered its judgment accepting jurisdiction, 1 all in accordance with the Uniform Child Custody Jurisdiction Act (U.C.C.J.A.), 2 Miss.Code Ann. Secs. 93-23-1, et seq. (Supp.1988).

On January 8, 1987, Carpenter commenced the present proceedings by filing in the Chancery Court of Rankin County a complaint to modify judgment of divorce and for contempt citation. In her complaint, Carpenter sought an order increasing Allen's child support obligations to $200.00 per month--approximately double its present level, and that, in addition, Allen pay Diane's college tuition expenses. In addition, by reason of an alleged $325.00 arrearage, Carpenter demanded a monetary judgment against Allen and an order that he be adjudged in contempt and imprisoned until he purge himself of his contempt.

In due course, Allen moved to dismiss, see Rule 12(b)(2), Miss.R.Civ.P., arguing that he could not be subjected to in personam jurisdiction in the state of Mississippi consistent with the Due Process Clause of the Fourteenth Amendment to the Constitution of the United States. On March 13, 1987, the Chancery Court entered its order granting the motion and dismissed Carpenter's complaint "for lack of personal jurisdiction over the defendant." This appeal has followed.

III.

We have accepted our obligation to respect and enforce a non-resident father's federal due process rights, see, Kulko v. Superior Court, 436 U.S. 84, 98 S.Ct. 1690, 56 L.Ed.2d 132 (1978), when he is sued in this state regarding his child support obligations. Noble v. Noble, 502 So.2d 317, 319-20 (Miss.1987). In Noble the defendant father had claimed Mississippi as his domicile from 1956 until he retired from the Armed Forces in 1984 and moved to South Carolina. On those facts Noble quite correctly held the father constitutionally amenable to suit in Mississippi.

There is nothing in the brief record before us that suggests that Edward E. Allen has ever so much as set foot in the State of Mississippi. It may not fairly be said from this record that Allen has purposefully availed himself of the benefits of the laws of the state of Mississippi or that he derives personal or commercial benefit from his daughter's presence in Mississippi. Ordinarily where such is the case, we would be content to cite Kulko and affirm, for the fact that Mississippi has such contacts with the matter that its substantive law should apply to Carpenter's child support modification action does not render Allen, a citizen of Alabama, constitutionally amenable to suit here. See Boardman v. United Services Automobile Assn., 470 So.2d 1024, 1035 (Miss.1985).

By reason of the advent of the U.C.C.J.A., more need be said. While residents of Ohio, Carpenter and, more importantly, Allen became subject to in personam jurisdiction in the Court of Common Pleas of Franklin County, Ohio, in Case No. 74DR-02-1125. That court entered its judgment of divorce on October 18, 1974. Apparently Ohio law provides that once parties are before the court in a domestic relations matter and a divorce is granted, the court "maintains continuing jurisdiction over the parties." See Paragraph 1 of Judgment dated September 2, 1986, in Allen v. Allen, Court of Common Pleas, Franklin County, Ohio, No. 74DR-02-1125. 3 In that judgment, the Ohio court, acting pursuant to the U.C.C.J.A., transferred "jurisdiction over the subject matter and parties in Cause No. 74DR-02-1125 to the Chancery Court of Rankin County, Mississippi." [Emphasis added] Our question is whether this changes the result Kulko would ordinarily decree.

To begin with, the U.C.C.J.A. expressly excludes from its coverage matters "relating to child support or any other monetary obligations of any person." Miss.Code Ann. Sec. 93-23-3(c) (Supp.1988); Burrill v. Sturm, 490 So.2d 6, 8 (Ala.App.1986); Kioukis v. Kioukis, 185 Conn. 249, 253-54, 440 A.2d 894, 896 (1981) (citing identically worded section of U.C.C.J.A. as enacted in Connecticut); Lee v. DeShaney, 457 N.E.2d 604, 607 (Ind.App.1983) (same; Indiana); Warwick v. Gluck, 12 Kan.App.2d 563, 751 P.2d 1042, 1044 (1988) (same; Kansas).

More fundamentally, our answer may be gleaned from the indubitable premise that federal constitutional imperatives prevail over rights and authority emanating from subordinate sources and forms of law. Neither Ohio nor Mississippi, nor the legislatures or courts of either, have the power to abridge rights secured to Allen by the Due Process Clause of the Fourteenth Amendment. The fact that at one time Allen lived in Ohio and became subject to in personam jurisdiction in a court of that state is of no consequence here, as our inquiry is whether Allen is constitutionally amenable to in personam jurisdiction in Mississippi, not Ohio. Indeed, for purposes of considering Allen's due process point, the courts of this state are constitutionally enjoined to proceed as though the Ohio proceedings had never occurred.

Courts of other states facing the in personam jurisdiction questions in legally analogous circumstances have reached the same result we this day decree. Burrill v. Sturm, 490 So.2d 6 (Ala.Civ.App.1986) (parties divorced in Pennsylvania; mother and child moved to Alabama; father had moved to Maryland); Kumar v. Superior Court of Santa Clara County, 32 Cal.3d 689, 652 P.2d 1003, 1012-13, 186 Cal.Rptr. 772, 781-82 (1982) (parties divorced in New York; mother and child moved to California and registered the New York custody judgment in California); In re Marriage of Schuham, 120 Ill.App.3d 339, 76 Ill.Dec. 159, 458 N.E.2d 559 (1983) (parties divorced in Missouri; mother and children moved to Illinois and registered the Missouri custody judgment in Illinois); In re Marriage of Bremer, 334 N.W.2d 356 (Iowa App.1983) (parties divorced in Wisconsin; mother moved to Iowa with two of four children and registered Wisconsin custody judgment in Iowa); Ferguson v. Ferguson, 411 N.W.2d 238 (Minn.App.1987) (parties divorced in Montana; mother and children moved to Minnesota); Perry v. Ponder, 604 S.W.2d 306, 312-13, 322 (Tex.Civ.App.1980) (parties divorced in Alabama; mother and child moved to Texas).

To be sure, in personam jurisdiction and constitutional amenability thereto partake of personal rights which may be waived if not timely asserted. See Rule 12(h)(1), Miss.R.Civ.P.; Karenina By Vronsky v. Presley, 526 So.2d 518, 523 (Miss.1988); O'Neill v. O'Neill, 515 So.2d 1208, 1211-12 (Miss.1987); Brown v. Brown, 493 So.2d 961, 963 (Miss.1986). In some circumstances such waiver may be given in advance in the sense that a person may before suit consent to in personam jurisdiction in a state where he would not otherwise be amenable thereto, see Smith v. Those Certain Insurance Companies, Etc., 132 Ariz. 371, 373, 645 P.2d 1285, 1287 (App.1982); International Collection Service, Inc. v. Gibbs, 147 Vt. 105, 510 A.2d 1325, 1327 (1986), and in connection therewith, we have reviewed the record before us to see if prior to the Ohio judgment of September 2, 1986, Allen overtly expressed his consent to in personam jurisdiction in Mississippi. The record is silent on the point. Indeed, the Ohio judgment transferring jurisdiction entered September 2, 1986, does not even recite or find that Allen, who by that time had long been a resident of Alabama, was even given notice of the pendency of the transfer proceedings.

Our action this day, of course, is without prejudice to Carpenter's right to pursue either of two other courses: (1) filing suit in the appropriate Alabama court, or (2) proceeding under the Uniform Reciprocal Enforcement of Support Act. 4

AFFIRMED.

ROY NOBLE LEE, C.J., and SULLIVAN, ANDERSON and BLASS, JJ., concur.

PRATHER, J., HAWKINS and DAN M. LEE, P.JJ., and PITTMAN, J., dissent by separate written opinion.

PRATHER, Justice, dissenting:

There is a national crisis in child support enforcement....

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