McCubbin v. Seay, 98-CA-00042-COA.

• Decision Date: 27 July 1999
• Docket Number: No. 98-CA-00042-COA.,98-CA-00042-COA.
• Citation: 749 So.2d 1127
• Parties: Jack Hamblin McCUBBIN, Appellant, v. Rebecca Wells SEAY, Appellee.
• Court: Mississippi Court of Appeals

749 So.2d 1127

Jack Hamblin McCUBBIN, Appellant, v. Rebecca Wells SEAY, Appellee.

No. 98-CA-00042-COA.

Court of Appeals of Mississippi.

July 27, 1999.

Michael Allen Akers, Keith D. Obert, Brandon, Attorneys for Appellant.

William R. Wright, W. Benton Gregg, Stacey P. Stracener, Jackson, Attorneys for Appellee.

BEFORE McMILLIN, C.J., IRVING, AND PAYNE, JJ.

McMILLIN, C.J., for the Court:

¶ 1. This case is an appeal from a judgment of the Chancery Court of Hinds County adjudicating Jack McCubbin to be in contempt for his failure to perform his support obligations created under a Tennessee judgment of divorce. McCubbin has appealed on a number of grounds, including a claim that the chancellor lacked personal jurisdiction over him. Finding this issue to have merit, we vacate the order of contempt and dismiss this case for lack of jurisdiction. The dismissal is without prejudice for Seay to pursue the merits of her claim by proper proceeding.

I.

Facts

¶ 2. Jack McCubbin and Rebecca Seay were married in Mississippi in 1975. There is no indication in the record, however, that they ever resided in this state after their marriage. To the contrary, it appears that the parties spent their entire married life as residents of the State of Tennessee where they were divorced in 1983 on the ground of irreconcilable differences. As a part of that proceeding, the parties entered into a property settlement agreement that was approved by the court and incorporated into the divorce decree. The parties had one minor daughter, Memrie, who was five years old at the time and the agreement made a substantial number of provisions regarding the future care and education of the child. Custody was, by agreement, placed with Seay.

¶ 3. Shortly after the divorce, Seay and the child relocated their residence to Mississippi and McCubbin moved to Texas. Besides sending his support payments to Mississippi, McCubbin has had no contact with this state at any time since the divorce. In July 1996, Seay commenced a contempt proceeding in the Hinds County Chancery Court alleging that McCubbin was in default on payment of certain amounts of child support due under an escalation clause contained in the property settlement agreement. McCubbin was served with a summons and a copy of the contempt motion by process server in Texas. McCubbin, through counsel, filed a responsive pleading that, among other things, sought dismissal under Mississippi Rule of Civil Procedure 12(b)(2) for lack of jurisdiction over his person. The chancellor denied the motion to dismiss on that ground and proceeded to reach the merits of the case. He found McCubbin in contempt for his failure to pay certain of Memrie's college education expenses and certain amounts due under the escalation clause, entered judgment against McCubbin for the sums so adjudicated, and assessed McCubbin with $7,762.29 in attorney's fees. This appeal ensued.

II.

In Personam Jurisdiction

¶ 4. McCubbin claims that he was not subject to being personally sued in Mississippi since he had never been a resident of this state, had no significant contacts with Mississippi, and the judgment sought to be enforced was a Tennessee decree. McCubbin's attack on this state's attempt to exercise jurisdiction over his person is based on jurisprudence developed under the due process clause of the United States Constitution that prevents a citizen of one state from being hauled into the courts of another state when to do so would "offend traditional notions of fair play and substantial justice." International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945). United States Supreme Court decisions in this area pose two considerations that determine whether an attempt to exercise in personam jurisdiction over a nonresident can survive a due process challenge. The two areas of inquiry are "the presence of reasonable notice to the defendant that an action has been brought, ... and a sufficient connection between the defendant and the forum State as to make it fair to require defense of the action in the forum." Kulko v. Superior Court of California, 436 U.S. 84, 91, 98 S.Ct. 1690, 56 L.Ed.2d 132 (1978) (citations omitted). With the growing use of private process servers outside the borders of a particular state, as opposed to publication as a means of service, the importance of the notice provision has grown less important. In fact, it is not a legitimate factor in this proceeding since there can be little argument that McCubbin received reasonable notice of the pendency of this contempt action. Nevertheless, that finding does nothing to lessen the importance of the second consideration.

¶ 5. Thus, the issue squarely facing this Court is whether McCubbin had a sufficient connection with the State of Mississippi solely because of his daughter's physical presence in Mississippi to subject him to in personam jurisdiction to resolve a dispute as to his support obligations. The chancellor held that McCubbin did have the necessary connection. He appeared to base his conclusion on several factors. He first said that the Full Faith and Credit for Child Support Orders Act, as enacted by Congress, suggested, though without specifically so holding, that "actions against nonresident defendants were contemplated by Congress." 28 U.S.C.S § 1738B (Law. Co-op 1989). Our review of the chancellor's decisions on matters of law is de novo. Morreale v. Morreale, 646 So.2d 1264, 1267 (Miss.1994). This Court has reviewed the full text of the Act and can discover no provision that suggests an expansion of traditional views concerning the propriety of a state court assuming personal jurisdiction over a nonresident respondent in a situation such as this. The Act concerns itself primarily with preventing the courts of one state from modifying a support order issued by another state except under certain limited circumstances. 28 U.S.C.S. § 1738B (Law. Co-op 1989). It does not speak to the issue of jurisdiction over a nonresident obligor. We find that the chancellor was in error in his determination on the effect of 28 U.S.C. 1738B on the question of personal jurisdiction, and consider the issue to be one resolved by traditional concepts of due process jurisprudence applicable to all forms of civil litigation. "Personal jurisdiction jurisprudence, constitutional statutory amenability, as well as implementing procedure, is no different in domestic relations litigation than in other cases." Petters v. Petters, 560 So.2d 722, 725 (Miss. 1990).

¶ 6. As a possible second basis for exercising jurisdiction over McCubbin's person, the chancellor suggested that the length of time that McCubbin had paid child support into the State of Mississippi to a Mississippi resident as well as the fact that the parties were married in Mississippi provided the necessary connection between McCubbin and this state. We conclude that this is without merit. There is no indication in this record that the parties, at the time of their marriage, intended to make Mississippi their marital domicile. In fact, every indication is to the contrary. The location that marriage vows were exchanged, standing alone, provides only the most tenuous connection between the marriage partners and the state and would seem insufficient to create a basis for the exercise of personal jurisdiction of a dispute arising many years after the marriage ceremony....