Marr v. Adair, 2001-CA-01723-COA.

• Decision Date: 08 April 2003
• Docket Number: No. 2001-CA-01723-COA.,2001-CA-01723-COA.
• Citation: 841 So.2d 1195
• Parties: John MARR, Jr., Appellant v. Darnay Marr ADAIR, Appellee.
• Court: Mississippi Court of Appeals

841 So.2d 1195

John MARR, Jr., Appellant v. Darnay Marr ADAIR, Appellee.

No. 2001-CA-01723-COA.

Court of Appeals of Mississippi.

April 8, 2003.

Kelly Michael Rayburn, for appellant.

Darnay Marr Adair (pro se), appellee.

EN BANC.

IRVING, J., FOR THE COURT:

¶ 1. John Marr appeals from a judgment of the Harrison County Chancery Court relinquishing the jurisdiction which it had assumed over child custody and support matters emanating from a Louisiana judgment of divorce. John argues in his appeal that the chancery court erred when it relinquished jurisdiction and vacated previously-entered orders relating to matters of custody. John also argues that the chancery court erred in dismissing several of his motions dealing with issues of contempt and custody due to Darnay's failure to comply with prior orders of the court. John argues further that the chancery court erred in finding that, under the Uniform Child Custody Jurisdictional Act, the State of Louisiana was the more appropriate forum to consider the issues regarding custody of the minor children.

FACTS

¶ 2. John and Darnay Marr Adair were divorced on March 8, 1996, by a judgment of the 22nd Judicial District Court of St. Tammany Parish, Louisiana. The court ordered John to pay Darnay $400 per month in child support. Pursuant to a joint stipulation, both parents received joint custody of their three children, Kristina, Kayla, and Christopher, with primary custody being awarded to Darnay. Approximately three years after the parties' divorce, John, now a resident of Mississippi, filed a motion for contempt and custody and a motion to enroll the Louisiana judgment in the Chancery Court of Harrison County, Mississippi. The motions alleged that Darnay was denying John visitation with his children, as well as violating other provisions of the Louisiana judgment of divorce. John further claimed that the children were neglected in the care of their mother and living in an unstable environment. At the time these motions were filed, Darnay had relocated to Texas.

¶ 3. On March 22, 1999, the chancery court determined that it did not have jurisdiction over the custody matters involved, presumably because the children did not reside in Mississippi at the time. A ruling was issued from the bench; however, no written order was entered.

¶ 4. On January 10, 2000, John and Darnay executed a document entitled "Consent Judgment" whereby they agreed to share joint legal custody of the three minor children, with John having primary custody of the two girls, Kristina and Kayla, and Darnay retaining custody of Christopher. Although the document is styled as a Consent Judgment of the 22nd Judicial District Court of St. Tammany Parish, Louisiana, it was not signed by a judge, nor was it filed of record with that court. It appears, however, that John assumed custody of the two girls pursuant to this agreement and brought them to Mississippi.

¶ 5. On September 1, 2000, after Kristina and Kayla had lived with him in Mississippi for approximately eight months, John again petitioned the Harrison County Chancery Court to enroll the Louisiana judgment and to ask the Louisiana trial court to release its jurisdiction over the case. Although custody was a part of the relief requested, John did not file until August 31, 2001, the affidavit required by Mississippi Code Annotated section 93-23-17 (Rev.1994). Also, on September 1, 2000, John filed a petition for an ex parte temporary restraining order seeking custody and asking that Darnay be enjoined from coming within 500 yards of him, his wife, or the girls. The court granted John temporary custody of the minor children, and Darnay was enjoined from contacting them pending further order from the chancery court.

¶ 6. On September 13, 2000, Darnay, proceeding pro se, filed motions with the chancery court opposing the enrollment of the Louisiana judgment in Mississippi, challenging the restraining order, and contesting the court's jurisdiction. ¶ 7. After the filing of Darnay's motions and responses to John's motions, the chancery court, on September 13, 2000, proceeded to hear the pending motions. However, during the hearing, the parties reached a settlement which essentially reflected the terms and provisions of the "Consent Judgment" that they had executed in January of 2000. The settlement agreement gave custody of Kristina and Kayla to John and custody of Christopher to Darnay. The parties further agreed that the Harrison County Chancery Court had jurisdiction over the parties and subject matter involved. The terms of the settlement agreement were read into the record on the date of the hearing, and both John and Darnay verbally acknowledged that the agreement read in open court accurately reflected the terms and conditions of the settlement agreement reached by them. However, the judgment encompassing the terms and conditions of the settlement agreement was not entered until February 19, 2001. Neither John nor Darnay signed the judgment.

¶ 8. On February 20, 2001, John filed a motion for contempt alleging that Darnay had taken the girls for weekend visitation and refused to return them. A hearing was held on March 7, 2001, and based on evidence adduced at the hearing, the court entered an order awarding temporary custody of Kristina and Kayla to the Harrison County Youth Court/Shelter. John, as the girls' primary custodian, was directed to make appointments for them to receive counseling through the Gulf Coast Mental Health Center.

¶ 9. On March 15, 2001, the chancery court entered an order finding Darnay in contempt of the court's February 19, 2001 judgment for failing to return the children to John following visitation. She was sentenced to six months' incarceration, suspended, and ordered to pay attorney's fees.

¶ 10. On March 30, 2001, Darnay filed a motion to set aside the court's March 15, 2001 contempt order. She also sought an order of dismissal of the case, along with an order setting aside all previous orders on the basis that Harrison County Chancery Court lacked jurisdiction over the ongoing custody dispute between the parties. At this point, Darnay had retained the services of an attorney.

¶ 11. On April 4, 2001, the court entered an order releasing Kristina and Kayla from the care of the youth shelter to the temporary custody of Darnay. On August 3, 2001, John filed another motion for contempt, a petition for an ex parte injunction and a temporary restraining order. On August 9, 2001, John filed a motion seeking a modification of the court's April 4, 2001 order which granted temporary custody to Darnay.

¶ 12. Sensing a possibility of conflicting jurisdiction, the chancery court contacted the 22nd Judicial District Court of St. Tammany, Louisiana, to inquire as to the existence of any proceedings pending in that court. It was discovered that all the while the Mississippi chancery court had proceeded, a Louisiana district attorney had been pursuing a non-payment action against John in Louisiana for failure to pay child support. That action had commenced on July 21, 1999, and was set for hearing in November of 2001. It was also discovered that a motion by John contesting the Louisiana court's jurisdiction was also pending in the Louisiana court while proceedings were moving forward in the Mississippi chancery court.

¶ 13. On October 2, 2001, the Harrison County Chancery Court entered an order setting aside all previously-entered orders on the basis that it lacked jurisdiction over the ongoing custody dispute between the parties. Excepted from this vacation of orders was the chancery court's March 15, 2001 order of contempt against Darnay. The chancery court also found that it would be capable of exercising jurisdiction over the parties' custody dispute consistent with the jurisdictional provisions of the Uniform Child Custody Jurisdictional Act (UCCJA) and the Parental Kidnapping Prevention Act (KPA). However, the chancery court expressed concern over John's failure to timely file a UCCJA affidavit and the effect of that omission on the court's power to assert jurisdiction over the case. The court further enunciated that it could not find that Darnay waived the UCCJA affidavit requirement. Moreover, it acknowledged that Louisiana was the more convenient forum in which to hear the parties' custody dispute. Nevertheless, the chancery court saw fit to allow its March 15, 2001 order finding Darnay in contempt of court to stand.

STANDARD OF REVIEW

¶ 14. In domestic relations cases, our scope of review is limited by the substantial evidence/manifest error rule. Jundoosing v. Jundoosing, 826 So.2d 85, 88(¶ 10) (Miss.2002) (citing Magee v. Magee, 661 So.2d 1117, 1122 (Miss.1995)). This Court may reverse a chancellor's findings of fact only when there is no "substantial credible evidence in the record" to justify his finding. Id. (citing Henderson v. Henderson, 757 So.2d 285, 289(¶ 19) (Miss.2000)). "Our scope of review in domestic relations matters is limited under the familiar rule that this Court will not disturb a chancellor's findings unless manifestly wrong, clearly erroneous, or unless the chancellor applied an erroneous legal standard." Id. (citing Johnson v. Johnson, 650 So.2d 1281, 1285 (Miss. 1994)).

ANALYSIS AND DISCUSSION OF THE ISSUES

¶ 15. The core issue raised by John is whether the chancery court acted properly in relinquishing jurisdiction of the Louisiana domestic relations judgment after initially assuming jurisdiction and deciding attendant issues of custody and support. Therefore, we combine his two issues in a singular discussion.

A court of this state which is competent to decide child custody matters has jurisdiction to make a child custody determination by initial or modification decree if:

(a) This state (i) is the home state of the child at the time of commencement of proceeding, or (ii) had been the child's home state within six (6) months before commencement of the proceeding and

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