Curtis v. Curtis

• Decision Date: 27 December 1990
• Docket Number: No. 90-CA-0075,90-CA-0075
• Citation: 574 So.2d 24
• Parties: Lauralee CURTIS v. William Gregory CURTIS.
• Court: Mississippi Supreme Court

Page 24

574 So.2d 24

Lauralee CURTIS v. William Gregory CURTIS.

No. 90-CA-0075.

Supreme Court of Mississippi.

Dec. 27, 1990.

Ray Charles Evans, Forest, Wilton A. McNair, Pascagoula, for appellant.

Pat Donald, Morton, for appellee.

Before DAN M. LEE, P.J., and ROBERTSON and BLASS, JJ.

ROBERTSON, Justice, for the Court:

I.

This case is of a genre that tests the law's capacity to regulate human behavior. Interstate parental kidnappings following family breakups have been a scourge upon society. A decade ago the federal government and then this (and every other) state enacted comprehensive laws designed to end interstate jurisdictional wars wherein the courts of the several states had treated kidnapped children like cross-country ping pong balls.

This case presents a classic case of the parental and judicial behavior the statutes were designed to and do proscribe. A valid Utah decree granted custody of four children to their mother. Ten weeks later, the father took advantage of his weekend visitation and wrongfully brought the children to Mississippi and enlisted the aid of this state's courts to give him custody. The children have since been caught in the middle of a tug of war.

We hold the Utah courts never lost jurisdiction of the matter of the permanent custody of the children. With this we adjudge the legal issues tendered. In doing this almost three years after the fact, we have no illusion that we have ability to put Humpty Dumpty back together again. We hope from this fall all may know of our seriousness of purpose that the law's injunction be respected.

II.

A.

What is vital to keep in mind is that none of the parties to or affected by this proceedings had ever so much as set foot in Mississippi prior to Presidents' Day weekend in February of 1988.

Lauralee Curtis is, and at all relevant times has been, an adult resident citizen of Orem, Utah, and is approximately forty-three years of age. Lauralee was the Defendant below and is the Appellant here.

William Gregory Curtis was born January 20, 1947, and testified below that his address was Route 2, Box 139, Lena, Scott County, Mississippi, although he acknowledged that prior to February 14, 1988, he had been domiciled in Moroni, Utah. He has since moved to 291 Broad Street, Forest, Mississippi. Gregory was the Plaintiff below and is the Appellee here.

Lauralee and Gregory were married on January 21, 1967, at Hornbeck, Louisiana, at a time when each was nineteen years of age. Eight children were born of the marriage. The oldest child, Cheree Curtis, got married in June 1986, and has been emancipated. The other children whose custody is the subject of litigation are:

Grover Dale Curtis, born February 21, 1971.

Jolene Curtis, born April 14, 1974.

Gregory Jason Curtis, born January 31, 1976.

Darla Curtis, born June 25, 1979.

Charlotte Curtis, born August 5, 1982.

William Brett Curtis, born March 26, 1983.

Jacob Walker Curtis, born April 26, 1985.

For twenty-one years, the Curtises were a mobile family, residing in a number of states, including Louisiana, Arizona, Texas, Idaho, and finally Utah--but never Mississippi.

B.

On March 9, 1986, at a time when the Curtises still lived in Utah, Lauralee filed suit for divorce in the District Court for the Fourth Judicial District of Utah. On December 4, 1987, the Utah District Court entered its final decree of divorce, dissolving the marriage of Lauralee and Gregory and placing with Lauralee the care, custody and control of the youngest four of the seven children, to-wit: Jacob Walker Curtis, William Brett Curtis, Charlotte Curtis, Darla Curtis. The three older children, Grover Dale Curtis, Jolene Curtis and Gregory Jason Curtis, were each given the choice which parent he or she wished to live with. Each chose his or her father. The decree further granted the non-custodial parent reasonable visitation rights in the case of each of the seven children.

C.

On or about February 11, 1988--only ten weeks later--Presidents Day was approaching and Gregory asked Lauralee if he could have the four younger children over the long holiday weekend. Lauralee agreed, Gregory promising to return them by Tuesday, February 16, 1988. Instead, learning (as he puts it) that the children had been abused while in Lauralee's custody, Gregory took off for Mississippi, arriving on February 14 at the home of Jim Moore, a friend who lived in Pearl. On February 16, 1988, Gregory filed with the Chancery Court of Scott County, a two-count complaint asking, first, for modification of the Utah custody decree, and, second, for a protective order under the Mississippi Protection From Domestic Abuse Law, Miss.Code Ann. Secs. 93-21-1, et seq. (Supp.1990) (hereinafter the "PDA").

Following an ex parte hearing, the Chancery Court entered an order vesting temporary custody of the four children in Gregory. The Chancery Court then caused process to issue for Lauralee which was served upon her in Utah by certified mail. Lauralee answered the Mississippi proceedings, first challenging subject matter and personal jurisdiction here and, thereafter, asserting the Utah custody decree and alleging that Gregory wrongfully detained the children in Mississippi contrary to the Uniform Child Custody Jurisdiction Act, Miss.Code Ann. Sec. 93-23-15 (Supp.1990) ¹ (hereafter "UCCJA"), and the Federal Parental Kidnapping Prevention Act of 1980, 28 U.S.C. Sec. 1738(A)(g) ² (hereafter "PKPA").

On February 29, 1988, the Chancery Court of Scott County commenced a three-day hearing with both parties present and represented by counsel. At the conclusion of the hearing, the Court continued temporary custody in Gregory and otherwise took the entire matter under advisement. Nothing happened for over five months until August 9, 1988, when the Chancery Court entered its order, holding that the PKPA stripped the Court of any authority to modify the Utah custody decree. Inexplicably, the Court continued in effect custody in Gregory under the authority of the Protection From Domestic Abuse Act, providing that this order "will remain in effect until further order of this Court."

On September 12, 1988, Lauralee repaired to the District Court for Utah's Fourth Judicial District and obtained an order requiring Gregory to show cause why he should not be held in contempt for withholding custody of the children contrary to the December 4, 1987, final decree of divorce. Back in Mississippi, on September 23, 1988, Lauralee moved anew to dissolve the protective order which the Chancery Court had continued in effect in its August 9 ruling. On December 5, 1988, the Chancery Court summarily denied Lauralee's motion and on grounds that it was frivolous assessed her with fees and expenses.

On October 4, 1988, Lauralee secured the services of Jerry Cobb, a Viet Nam veteran and self-styled "mercenary," and they came to Mississippi and (re)kidnapped the children and returned them to Utah. In response, Gregory returned to Chancery Court on October 24 with a second motion to modify the Utah custody decree and further for an order holding Lauralee in contempt. Following a hearing which Lauralee did not attend but at which she was represented by counsel, the Chancery Court, on December 5, 1988, held that it had jurisdiction because (a) the children had now been present in Mississippi for more than six months, (b) the parties had significant connections with Mississippi, and (c) modification was in the best interest of the children, presumably alluding to the UCCJA and specifically Section 93-23-5(1)(b) ³ thereof. The Chancery Court then entered an order granting Gregory permanent custody of all seven children.

Lauralee presses the present appeal from this order.

D.

While this appeal has been pending, further and important proceedings have taken place in Utah. In January of 1989, the judge of the Utah District Court apparently conferred by telephone with the Chancery Judge in Scott County, see Miss.Code Ann. Sec. 93-23-11(3) ⁴; Hobbs v. Hobbs, 508 So.2d 677, 680 (Miss.1987); Coppedge v. Harding, 714 P.2d 1121 (Utah 1985), and became informed as to the course of proceedings in Mississippi. On January 12, 1989, the Utah District Court entered an order acceding to the Mississippi custody modification decree and relinquishing jurisdiction. Lauralee appealed and on March 27, 1990, the Court of Appeals of Utah reversed, holding the matter controlled by the federal PKPA, 28 U.S.C. Sec. 1738(A)(d) ⁵. Curtis v. Curtis, 789 P.2d 717 (Utah Ct.App.1990).

The Utah Court correctly read the PKPA as imposing three requisites for Utah's continuing jurisdiction:

(1) That Utah had jurisdiction for the initial custody decree;

(2) That Utah had current jurisdiction under its own state laws; and

(3) That the children or a parent reside in Utah.

Curtis, 789 P.2d at 725. Applying these requisites, the Court found, first, that there was no question of Utah's jurisdiction to enter the original decree back in December of 1987. Second, the Court found that Utah law provided for continuing jurisdiction in matters regarding the custody and support of children incident to divorce decrees. Finally, the Court found that Lauralee had continued Utah as her state of domicile. The Court further found that Utah had not declined to exercise its jurisdiction for the simple reason that Gregory never attempted to have the Utah courts consider and adjudge his claims that the custody of the children be modified. In the end, the Court of Appeals held

... that Utah neither lost nor declined to exercise its jurisdiction over the custody dispute in this case. It follows that, as a matter of federal law, Mississippi had no subject matter jurisdiction to modify the decree. This is so even though Mississippi might have had jurisdiction to enter an initial custody decree under the facts as they otherwise existed except for Utah's already having done so.

Curtis, 789 P.2d at 725.

III.

We first consider the emergency jurisdiction of...