In re Guardianship of ZJ, 2000-CA-02092-SCT.

Decision Date10 January 2002
Docket NumberNo. 2000-CA-02092-SCT.,2000-CA-02092-SCT.
Citation804 So.2d 1009
PartiesThe Matter of The GUARDIANSHIP OF Z. J., Minor.
CourtMississippi Supreme Court

Maxine D. Lawson-Conway, Attorney for Appellant.

Attorney for Appellee: No Brief Filed.

Before SMITH, P.J., COBB and DIAZ, JJ.

SMITH, Presiding Justice, for the court

¶ 1. Amanda Green and Calvin Green appeal to this Court from an adverse ruling of the Chancery Court of Jackson County regarding the guardianship of Z.J., a minor.

¶ 2. We conclude that the chancery court had personal jurisdiction over the parties. We also find that the lower court had subject matter jurisdiction pursuant to Miss.Code Ann. §§ 93-13-13 & 93-23-5 (1994).

¶ 3. Finally, contrary to the chancellor's findings, we hold that nonresidents of this state are not prevented from bringing a child custody proceeding in Mississippi and that § 93-11-65 (Supp.2001) does not deprive the chancery court of jurisdiction. We note, however, that § 93-23-13 allows the lower court to decline to exercise jurisdiction based upon a finding citing factors enumerated in that statute. The chancellor did not address these factors. Thus a remand to the lower court for that analysis is essential.

FACTS

¶ 4. On September 15, 2000, Amanda Green and Calvin Green filed a Petition for Letters of Guardianship of Z.J. in the Chancery Court of Jackson County, Mississippi. The Greens sought to be appointed guardians of Z.J.'s person only, and the petition states that Z.J. has no estate, real or personal.

¶ 5. Z.J. is the three-year-old daughter of Chasity Jackson, a minor, and Dekesta Lett, also a minor. Chasity is the daughter of Amanda Green and the step-daughter of Calvin Green. Chasity and Z.J. reside in Jackson County with Chasity's maternal grandparents, Robert Tucker and Annie Tucker. The Tuckers were appointed general guardians of Chasity on March 8, 1984. Dekesta Lett also resides in Jackson County. Amanda Green and Calvin Green are residents of Mobile County, Alabama.

¶ 6. Chasity Jackson, Robert and Annie Tucker, Dekesta Lett, and his mother, Jocelyn Lett, joined in the petition. At the time the petition was filed, Chasity was a high school senior, and upon her expected graduation from high school in May 2001, Chasity planned to enter the United States Air Force. In order to do so, the Air Force required that Chasity obtain a general guardianship for Z.J. prior to enlistment. All parties apparently agreed that Z.J. would continue to reside in Jackson County until Chasity's departure in June 2001. At that time, Z.J. would reside with the Greens in Alabama.

¶ 7. The chancery court expressed reservations regarding its jurisdiction at a hearing held September 20, 2000. Argument regarding jurisdiction was heard November 14, 2000. At the hearing, the court stated that it did not have jurisdiction to establish a guardianship which would be administered in Alabama. The court entered judgment on November 15, 2000, by which it denied the petition for guardianship on the grounds that it did not have jurisdiction of the parties and the subject matter.

¶ 8. The Greens timely filed a notice of appeal to this Court. The only issue presented for review is whether the chancery court erred in finding that it lacked jurisdiction to grant the petition for guardianship.

STANDARD OF REVIEW

¶ 9. Whether the chancery court had jurisdiction to hear a particular matter is a question of law, to which this Court must apply a de novo standard of review. Burch v. Land Partners, L.P., 784 So.2d 925, 927 (Miss.2001) (citing Saliba v. Saliba, 753 So.2d 1095, 1098 (Miss.2000); Entergy Miss., Inc. v. Burdette Gin Co., 726 So.2d 1202, 1204-05 (Miss.1998)).

DISCUSSION

¶ 10. In its judgment, the chancery court stated that it lacked jurisdiction over both the parties and the subject matter of the action. There is no question that the chancery court had personal jurisdiction over the parties. Z.J., the natural mother, and the natural father all reside in Jackson County. See Miss.Code Ann. § 93-13-13 (1994) (chancery court of the county of ward's residence may appoint guardian). See also In re Guardianship of Watson, 317 So.2d 30 (Miss.1975)

(residence of a minor is that of his parents). All parties, including the Greens, who reside in Alabama, submitted themselves to the jurisdiction of the court by appearance. See Department of Human Servs. v. Shelnut, 772 So.2d 1041, 1045 (Miss.2000) (citing Insurance Corp. of Ireland, Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 102 S.Ct. 2099, 72 L.Ed.2d 492 (1982)). Any defect in personal jurisdiction has been intentionally waived by the parties. Id.

¶ 11. The question of subject matter jurisdiction is not so easily disposed of. Though all parties agree that the chancery court possessed subject matter jurisdiction as well, the petitioners cannot, by agreement, confer such jurisdiction on the court. Donald v. Reeves Transp. Co., 538 So.2d 1191, 1194 (Miss.1989). Nevertheless, it is the opinion of this Court that the chancery court possessed subject matter jurisdiction of this matter.

¶ 12. Mississippi's statutory scheme regarding the appointment of guardians and conservators clearly states that the chancery court of the county in which the ward resides may appoint a guardian. Specifically, Miss.Code Ann. § 93-13-13 (1994) provides, in pertinent part:

When a testamentary guardian has not been appointed by the parent, or if appointed, has not qualified, the chancery court of the county of the residence of a ward who has an estate, real or personal, shall appoint a general guardian of his estate for him or may appoint a general guardian of his person and estate for him. If a ward have no estate the chancery court of the county of the residence of such ward may appoint a general guardian of his person only for him, giving preference in all cases to the natural guardian, or next of kin, if any apply, unless the applicant be manifestly unsuitable for the discharge of the duties.

(emphasis added). This Court has stated that this statute, "absent intervening factors," means that the chancery court of the minor's residence has the "exclusive jurisdiction" to appoint a guardian of the person of the minor. In re Watson, 317 So.2d 30, 32 (Miss.1975). This Court has more recently held that "[t]here can be no serious question of the jurisdiction" of a court, sitting in the territorial district where the ward has his legal domicile, to appoint a guardian. In re Jefferson, 573 So.2d 769, 771 (Miss.1990). The Greens also refer to Miss.Code Ann. § 93-11-65 (Supp.2001) which provides, in part:

(1)(a) In addition to the right to proceed under Section 93-5-23, Mississippi Code of 1972, and in addition to the remedy of habeas corpus in proper cases, and other existing remedies, the chancery court of the proper county shall have jurisdiction to entertain suits for the custody, care, support and maintenance of minor children and to hear and determine all such matters, and shall, if need be, require bond, sureties or other guarantee to secure any order for periodic payments for the maintenance or support of a child.... Proceedings may be brought by or against a resident or nonresident of the State of Mississippi, whether or not having the actual custody of minor children, for the purpose of judicially determining the legal custody of a child. All actions herein authorized may be brought in the county where the child is actually residing, or in the county of the residence of the party who has actual custody, or of the residence of the defendant.

(emphasis added).

¶ 13. The concerns of the chancellor regarding the court's lack of jurisdiction over the guardianship once Z.J. left the state apparently derive from a older concept still embedded in our statutory law, according to which the court of guardianship, acting through the guardian as its appointee, carries the principal responsibility for wards under its jurisdiction. 39 C.J.S. Guardian and Ward § 7 (1976). According to common law, only the appointing court has jurisdiction over the guardianship, and guardianship status is "terminated," that is, the guardian may not exercise his powers, where the persons involved leave the jurisdiction of the appointing court. Id.; 37 Am.Jur.2d Guardian and Ward § 35 (1999). Our statutes apply this concept even where the residence of the ward changes within the state:

If a guardian desire to remove the person and/or personal property of his ward to any county other than that in which he was appointed guardian, he may, on petition, be allowed to do so, if the court deem it proper, and it may make an order to that effect, on condition that the guardian will qualify in the county to which he removes, or it may allow the removal and retain jurisdiction over the guardianship. The court of the county to which he removes, on production of the order authorizing the removal, may appoint him guardian....

See Miss.Code Ann. § 93-13-61 (1994).

¶ 14. The concept that a guardianship is valid only in the appointing jurisdiction has been relaxed somewhat by principles of comity and, in some states, by statute, so that a guardian removing a ward from the appointing jurisdiction may exercise the authorities of the guardianship. 39 C.J.S. § 192. Alabama statutes, for instance, have been amended to incorporate the more modern view, espoused by the Uniform Guardianship and Protective Proceedings Act of 1982 (UGPPA), according to which guardianship status continues until judicially terminated without regard to the location of the guardian and ward. See Ala.Code § 26-2A-70, comment. See also Ala.Code § 26-2A-80 (providing that the court where the ward resides has concurrent jurisdiction with the appointing court, and if the court where the ward resides is not the appointing court nor the court in which acceptance is filed, the court shall notify the appointing court, in Alabama or another state, and after consultation determine whether to retain...

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