Cooley v. Cooley
| Citation | 574 So.2d 694 |
| Decision Date | 23 January 1991 |
| Docket Number | No. 89-CA-1162,89-CA-1162 |
| Parties | Deneice Pugh COOLEY v. Ronald V. COOLEY. |
| Court | United States State Supreme Court of Mississippi |
Mike Sims, Heidelberg, for appellant.
Jack Parsons, Rebecca Cartledge Taylor, Parsons & Taylor, Wiggins, for appellee.
Before ROY NOBLE LEE, C.J., and PRATHER and SULLIVAN, JJ.
On February 15, 1985, Ronald V. Cooley and Deneice Pugh Cooley were granted a divorce in the George County Chancery Court on the basis of irreconcilable differences. Deneice was given custody of the two children of the marriage. A visitation schedule provided Ronald visitation with the children at specified times. Ronald was ordered to pay $400.00 a month in child support.
Since the divorce, these two parties have returned to court on many occasions. The results of the litigation have been modifications in visitation. Custody of the children has always remained in Deneice.
The course of this litigation has been complicated by the fact that Deneice has moved a number of times. Since October of 1984, she has lived in Mobile, Alabama; McComb, Mississippi; Metairie, Louisiana Algiers, Louisiana; and currently has a job with the Department of Defense in Japan.
A further complication has resulted from the fact that Deneice has changed counsel several times. Originally, John L. Hunter was her counsel. He withdrew in September of 1986, and Deneice retained the firm of Guirola and Jackson. Guirola withdrew in September of 1988. John Sims was retained by Deneice to file a Special Entry of Appearance and is acting for Deneice in the current action.
This appeal is a result of a Nunc Pro Tunc Judgment entered by the George County Chancery Court on September 13, 1989. That Judgment was in response to three Complaints filed by Ronald on September 1, 1987, October 21, 1988, and February 10, 1989.
In the Judgment, Chancellor Glenn Barlow found Deneice in willful, contumacious contempt of court for failing to permit her former husband to visit their two children. Deneice was ordered to serve a ninety (90) day period in the George County Jail which sentence would be stayed until August 15, 1989. She was ordered to deliver the children to Ronald on or before that date for six weeks visitation. Child support payments were ordered abated until such time as Deneice would personally appear before the Court asking for relief. Temporary custody was given to Ronald effective August 16, 1989, if Deneice failed to deliver the children on or before August 15, 1989. Deneice was ordered to pay attorneys fees in the sum of $6,032.00.
From this ruling, Deneice assigns eleven errors. We address only those which merit some discussion.
Deneice contends that the George County Chancery Court should have declined jurisdiction of this case under the Uniform Child Custody Jurisdiction Act. Deneice makes this claim based on the fact that she and the children had established residency in Louisiana six months prior to the two Complaints which Ronald filed on October 21, 1988 and February 10, 1989.
Mississippi adopted the Uniform Child Custody Jurisdiction Act (UCCJA) in 1982. See Miss.Code Ann. Secs. 93-23-1 to 93-23-47 (Supp.1990). According to Sec. 93-23-5, a Mississippi court has jurisdiction to hear a child custody matter if
(a) This state (i) is the home state of the child at the time of commencement of the proceeding, or (ii) had been the child's home state within six (6) months before commencement of the proceeding and the child is absent from this state because of his removal or retention by a person claiming his custody or for other reasons, and a parent or person acting as parent continues to live in this state; or
(b) It is in the best interest of the child that a court of this state assume jurisdiction because (i) the child and his parents, or the child and at least one (1) contestant, have a significant connection with the state, and (ii) there is available in this state substantial evidence concerning the child's present or future care, protection, training and personal relationships; or
(c) The child is physically present in this state and (i) the child has been abandoned, or (ii) it is necessary in an emergency to protect the child because he had been subjected to or threatened with mistreatment or abuse or is otherwise neglected or dependent; or
(d)(i) It appears that no other state would have jurisdiction under prerequisites substantially in accordance with paragraphs (a), (b) or (c), or another state has declined to exercise jurisdiction on the ground that this state is more appropriate forum to determine the custody of the child, and (ii) it is in the best interest of the child that this court assume jurisdiction.
In Roberts v. Fuhr, 523 So.2d 20 (Miss.1987), we found that Mississippi had continuing jurisdiction in the child custody action because Mr. Roberts was required to post a ne exeat bond and because "the Mississippi court exercised continuous and ongoing jurisdiction of the matter with full notice and appearance by all principals." Roberts, 523 So.2d at 27.
We declined to exercise our continuous jurisdiction in Walker v. Luckey, 474 So.2d 608 (Miss.1985). We found that Florida had jurisdiction because Mrs. Luckey signed a waiver agreeing to the allegations in Mr. Walker's petition and submitting to the jurisdiction of the Florida court.
We have recognized that while a Mississippi court might have continuing jurisdiction, it may also have concurrent jurisdiction of a child custody proceeding. In Matter of Marriage of Smith, 555 So.2d 73 (Miss.1989), we recognized that the language in the UCCJA allows concurrent jurisdiction. Since both Mississippi and Alabama could have jurisdiction in Smith, Mississippi properly exercised its jurisdiction.
The foregoing authority indicates that the George County Chancery Court properly exercised jurisdiction of this child custody matter since it has had continuing jurisdiction of this matter from its first award of custody. As Chancellor Barlow indicated, there has been a pending motion or complaint in this case almost constantly since 1984. Also, Deneice has continued to use the court to enforce her rights under the decrees.
Deneice instituted proceedings in Louisiana on November 21, 1988. She filed a Petition for Modification of Visitation asking the Louisiana court to assume jurisdiction and grant a change in Ronald's visitation rights.
Deneice contends that Chancellor Barlow erred in failing to contact the Louisiana court under the provisions of the UCCJA. She relies on Sec. 93-23-11(3) of the Act which provides:
If a court is informed during the course of the proceeding that a proceeding concerning the custody of the child was pending in another state before the court assumed jurisdiction, it shall stay the proceeding and communicate with the court in which the other proceeding is pending to the end that the issue may be litigated in the more appropriate forum and that information be exchanged in accordance with sections 93-23-37 through 93-23-43. If a court of this state has made a custody decree before being informed of a pending proceeding in a court of another state, it shall immediately inform that court of the fact. If the court is informed that a proceeding was commenced in another state after it assumed jurisdiction, it shall likewise inform the other court to the end that the issues may be litigated in the more appropriate forum.
In Hobbs v. Hobbs, 508 So.2d 677 (Miss.1987), child custody proceedings were begun simultaneously in Mississippi and Louisiana. We addressed the meaning of the phrase "assumed jurisdiction" as found in Sec. 93-23-11 and said that Hobbs, 508 So.2d at 680.
Chancellor Barlow should have stayed the proceeding only if the proceedings in Louisiana were pending before the George County Chancery Court assumed jurisdiction. The proceeding in Louisiana was initiated by the appellant on November 21, 1988. In the Mississippi proceeding, a Judgment was entered by the Chancellor on November 15, 1988 for the hearing which had been held on November 1, 1988. In that Judgment, Chancellor Barlow found "that [the George County Chancery Court] has jurisdiction of the subject matter and of the parties." The Mississippi court thus assumed jurisdiction before any proceeding was even begun in Louisiana.
Deneice further contends that she received no notice or service of process. However, her former counsel, Louis Guirola, testified that he received a copy of the September 1, 1987 Complaint and did tell Deneice about the Complaint over the phone. Deneice says this was not enough.
Notice to a person outside the State of Mississippi under the UCCJA is governed by Sec. 93-23-9. That section allows notice to be given "in the manner, time and form as provided by law for service of process."
When a divorce has been granted by a Mississippi court and the court "had personal jurisdiction of the defendant at the time of the divorce that personal jurisdiction continues." Covington v. Covington, 459 So.2d 780, 781 (Miss.1984). Since the court has personal jurisdiction over the parties, notice rather than actual service of process is all that is required for subsequent pleadings. Covington at 782.
M.R.C.P. 5 mandates the giving of notice for pleadings subsequent to the original complaint. It allows service to be made upon the attorney of record for a subsequent pleading. It can be delivered or mailed. Notice given to the attorney of record has been held to be sufficient notice. See Laskosky v. Laskosky, 504 So.2d 726, 730 (Miss.1987), and Covington, supra, at 782.
When the Complaint was filed in September of 1987, a copy...
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