Hunt v. Hunt
| Decision Date | 10 December 1992 |
| Docket Number | No. 91-CA-0934,91-CA-0934 |
| Citation | 629 So.2d 548 |
| Parties | Rita Gayle Allen HUNT v. Donald Corwin HUNT. |
| Court | Mississippi Supreme Court |
J. Niles McNeel, David E. Bane, Jr., McNeel & Ballard, Louisville, for appellant.
G. Jyles Eaves, Eaves & Eaves, Louisville, for appellee.
Before ROY NOBLE LEE, C.J., and PRATHER and BANKS, JJ.
Affirmed.
EN BANC.
ON PETITION FOR REHEARING
I. INTRODUCTION
This case was initially affirmed, per curiam, by order dated December 31, 1992. After considering the arguments posited by the parties on petition for rehearing, the Court issues the following opinion detailing its reasoning.
In this case, the appellant, Rita Hunt, appeals from an order by the Chancery Court of Winston County, granting custody of her two sons to the father-appellee, Donald Hunt. Rita assigns the following as error.
(1) The Chancery Court did not have personal jurisdiction over Rita Gayle Allen Hunt.
(2) The Chancery Court lacked subject matter jurisdiction in this case.
(3) Mississippi was an inconvenient forum under the Uniform Child Custody Jurisdiction Act. (UCCJA)
II. STATEMENT OF THE CASE
Donald and Rita Hunt were married on October 10, 1985. They resided in Winston County, where Donald had lived his entire life. During the marriage, one child, Joshua, was born. The marriage lasted only a short time until Donald filed for divorce on October 19, 1987. He alleged as grounds for the divorce habitual cruel and inhuman treatment, uncondoned adultery and irreconcilable differences. Donald sought custody of Joshua and alleged that Rita was not a fit parent due to her criminal record and mental problems which caused her to shoplift.
The chancellor entered a temporary decree on January 1, 1988, which granted temporary custody of Joshua to Donald. Another temporary decree was entered on February 5, 1988, which continued the prior temporary decree and further ordered both parties to submit to blood tests to determine the paternity of the child which Rita was then carrying. Rita delivered the baby, Albert, on June 8, 1988, in Fort Worth, Texas. She had grown up in Fort Worth and had returned there after the separation from Donald.
The chancellor entered a "Final Decree of Divorce" on September 16, 1988. The decree granted a divorce to Donald on grounds of habitual cruel and inhuman treatment and awarded him permanent custody of Joshua, finding that Rita was an unfit mother. The chancellor granted temporary custody of Albert to Rita and ordered Donald to pay $200 per month in child support, but reserved a ruling on the permanent custody of Albert until blood tests were completed.
On May 5, 1989, Rita filed a motion seeking permanent custody of Albert and child support, as well as a citation of contempt against Donald. Donald filed a cross-complaint seeking custody of Albert, since it had been determined through the blood test that he was Albert's father. The court's "final decree," filed June 24, 1989, continued permanent custody of Joshua with Donald, since On August 17, 1990, Donald filed a "Petition for Modification" of custody. He elected to have a process server serve the summons on Rita in Fort Worth. Keith Killough, a private investigator from Jackson, testified that he served process on Rita.
no material change in circumstances had been shown, and granted permanent custody of Albert to Rita. The decree also provided that Donald pay $200 per month in child support and $750 in attorney's fees to Rita. Visitation rights were also granted to both parents.
Rita testified that she received a subpoena stating only that she had to go to court in Winston County on September 6, 1990, and that nothing else was attached to the subpoena. She travelled to Winston County and was in court on September 6, when she asked the chancellor to grant her a five day continuance to obtain counsel. The chancellor granted Donald's request for the entry of a default judgment on October 9, 1990, after Rita failed to contact the court. On October 11, 1990, after a hearing on the custody modification petition was held in Rita's absence, the chancellor ordered that custody of Albert Hunt be given to Donald and that Rita pay $200 per month in child support.
Apparently, Donald took physical custody from Rita the day after Thanksgiving, 1990, when Rita brought Albert for visitation and he showed her the court's decree. She then filed her motion for reconsideration pursuant to MRCP 60(b)(4), on December 4, 1990, in which she alleged that the Chancery Court of Winston County had no jurisdiction to modify Albert's custody under the Uniform Child Custody Jurisdiction Act.
The chancellor agreed with Rita and entered an order, dated February 11, 1991, sustaining her motion for reconsideration and vacating the order granting Donald custody of Albert. In turn, on March 4, 1991, Donald filed a motion for reconsideration of the February 11, 1991, order. Finally, the court entered an order and opinion dated August 3, 1991, setting aside the February 11, 1991, order and reinstating its October 9, 1990 order granting custody of Albert to Donald.
III. ANALYSIS
In appeals from Chancery Court, this Court will not disturb the chancellor's finding of fact unless it is not supported by substantial evidence or is manifestly wrong. Gregg v. Montgomery, 587 So.2d 928 (Miss.1991); Stevenson v. Stevenson, 579 So.2d 550, 552-53 (Miss.1991); Caldwell v. Caldwell, 579 So.2d 543, 547 (Miss.1991); Clark v. Myrick, 523 So.2d 79, 80 (Miss.1988). However, "when the determination is one of law rather than fact, 'the familiar manifest error/substantial evidence rule does not prevent this Court from conducting a de novo review of the chancellor's findings.' " Stevenson, 579 So.2d at 553 (quoting Planters Bank & Trust Co. v. Sklar, 555 So.2d 1024, 1028 (Miss.1990).
Issue (1): The Chancery Court did not have personal jurisdiction over Rita Allen Hunt.
Rita's first argument is that the Chancery Court never had personal jurisdiction over her because she did not receive proper service of process prior to the hearing against her in October of 1990, where the court granted custody of Joshua and Albert to Donald. Donald argues that her admission of actual notice and her appearance in court were sufficient for the court to obtain personal jurisdiction.
Cooley v. Cooley, 574 So.2d 694 (Miss.1991), is dispositive of this issue, despite Rita's protestations to the contrary. This Court stated in Cooley that:
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 Id. at 697-98.
process is all that is required for subsequent pleadings. Covington at 782.
Cooley plainly holds that personal jurisdiction continues for the court that entered the divorce decree and that actual notice to a party is all that is required. This assignment of error has no merit.
Issue (2): The Chancery Court lacked subject matter jurisdiction in this case.
Subject matter jurisdiction deals with the power and authority of a court to consider a case. Matter of Adoption of R.M.P.C., 512 So.2d 702, 706 (Miss.1987). As such, subject matter jurisdiction may not be waived and may be asserted at any stage of the proceeding or even collaterally. Id.
Rita argues that under the provisions of the Uniform Child Custody Jurisdiction Act, codified as Miss.Code Ann. Secs. 93-23-1--93-23-47 (Supp.1992), the Chancery Court of Winston County has never had jurisdiction to determine who has custody of Albert, who was born in Texas prior even to the entry of the divorce decree. Donald argues that the court had continuing jurisdiction because it entered the divorce decree and the temporary original custody decree.
In connection with our analysis of this issue, we find the following facts to be especially helpful. First, the parties were married in Mississippi and resided in this State throughout the marriage. One child, Joshua, was born in this State. Donald Hunt was granted a divorce on the grounds of habitual cruel and inhuman treatment by a Mississippi court (the same court that entered the decree now on appeal). As part of the contested divorce, Donald was given custody of Joshua and tests were ordered to eventually determine the paternity of the child Rita was carrying. Rita Gayle Allen Hunt removed herself from this State with the result that Albert was born in Texas. Later, she voluntarily returned and petitioned the lower court to enter a custody decree with respect to Albert. Finally, it must be noted that Donald and Joshua Hunt continue to reside in Mississippi.
In considering whether a Chancery Court should proceed in a child custody matter, this Court has held that the chancellor must undertake a three step process.
A court must first determine if it has authority, or jurisdiction, to act following the guidelines of Sec. 93-23-5. If a court determines that it does not have jurisdiction the process stops there. However, if that hurdle is cleared, a determination is made as to which court is the more appropriate and convenient forum under the guidelines of Sec. 93-23-13. A court may decline to exercise jurisdiction if it is not the most appropriate or convenient forum. If the court accepts jurisdiction as the more convenient forum, the court must determine if the action to be taken is foreclosed by an order or judgment of the other state court. Hobbs v. Hobbs, 508 So.2d 677, 680 (Miss.1987).
Stowers v. Humphrey, 576 So.2d 138, 140 (Miss.1991).
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