Morrow v. Morrow

• Decision Date: 11 December 1991
• Docket Number: No. 90-CA-1097,90-CA-1097
• Citation: 591 So.2d 829
• Parties: Alan Scott MORROW v. Colleen Ann Mustico MORROW.
• Court: Mississippi Supreme Court

Page 829

591 So.2d 829

Alan Scott MORROW v. Colleen Ann Mustico MORROW.

No. 90-CA-1097.

Supreme Court of Mississippi.

Dec. 11, 1991.

William B. Jacob, Daniel P. Self, Jr., Joseph A. Kieronski, Jr., Self & Jacob, Meridian, for appellant.

Earl P. Jordan, Jr., Jordan & Jones, Meridian, for appellee.

Before ROY NOBLE LEE, C.J., and PRATHER and PITTMAN, JJ.

PRATHER, Justice, for the Court:

This child custody modification case arose on the appeal of Alan S. Morrow, the complainant from the judgment of the Chancery Court of Lauderdale County in favor of Colleen Mustico Morrow, the defendant and appellee. The appellant timely filed a notice of appeal, assigning as error:

The court was manifestly in error in finding from the evidence a lack of material change of circumstances adversely affecting the minor child of the parties and that the chancellor was manifestly wrong in the application of Mississippi law.

Ms. Mustico argues in her brief, without properly cross-appealing, that the chancery court failed to comply with the Uniform Child Custody Jurisdiction Act and therefore lacked jurisdiction to conduct the proceedings below.

I.

Alan Morrow and Colleen Mustico married in August of 1979. On February 11, 1983, Mary was born. The Morrow family lived in Adak, Alaska, from August 1985 until March 1988. In March 1988, the couple separated and Ms. Mustico relocated to Rhode Island. During her time in Alaska and for two years in Rhode Island, Ms. Mustico worked as a director of youth programs for the U.S. Navy. From March 1988 until July 1989, Mary continued to live with her father in Adak. During that time, on June 13, the Morrows were divorced in an Alaska court. The court decreed that the parents share joint child custody of Mary in two-year alternations beginning with Mr. Morrow during the 1989-1991 school years. On June 1, 1989, Ms. Mustico picked up Mary and took her to Rhode Island for visitation. In late July, Mr. Morrow picked the child up and took her to Meridian. Mr. Morrow already had orders for Mississippi when the Alaska court granted a divorce, and Mary moved to Meridian with him when he reported to the Naval Air Station on July 27, 1989.

On May 31, 1990, in the Chancery Court of Lauderdale County, Alan Morrow filed a complaint to modify the Alaska decree of divorce, citation for contempt, and other relief against his former wife, Colleen Mustico. Mr. Morrow asserted a material change in Mary's welfare and asserted that the Mississippi chancery court had jurisdiction to modify the divorce decree.

On June 11, 1990, Ms. Mustico, as a complainant in a habeas corpus suit, having already been served with Mr. Morrow's complaint to modify custody, filed a request for special appearance to tender monies until a determination of jurisdiction could be made. On June 11, 1990, Chancellor Jerry G. Mason heard the second complaint for writ of habeas corpus filed by Ms. Mustico. The court ordered Ms. Mustico to pay child support arrearage and ordered On August 15, 1990, Ms. Mustico filed an answer to Mr. Morrow's modification complaint. She admitted that Mary had lived in Mississippi more than six months preceding the action, but denied Mr. Morrow's allegation that the Chancery Court of Lauderdale County had jurisdiction to modify the couple's Alaska divorce decree.

Mr. Morrow to give physical custody of Mary to Ms. Mustico immediately.

Mr. Morrow testified on the defendant's motion challenging jurisdiction that his connection with Mississippi was solely by virtue of his naval assignment. He testified that, at the time of his Alaska divorce, although his driver's license was from New York, his home of record was in New Hampshire, and in New York, the Alaska court had found him to be a resident and domiciliary of Alaska. At the time of the modification hearing, Mr. Morrow's car was registered in New York and he carried a New York driver's license. Having heard the above testimony, the chancellor overruled Ms. Mustico's motion to decline jurisdiction of the person under Miss.Code Ann. Sec. 93-23-27 (1972) and proceeded to hear the modification issue.

Morrow admitted on cross-examination that, in late September of 1989, Mary had expressed dissatisfaction with her sitter, and that he had engaged a new sitter in November. Mary's new sitter was Vickie, who was Red Cross certified, but was not authorized to baby-sit on base. Morrow testified that Vickie stayed over night at his home between November and January so she would not have to come unusually early when Mr. Morrow's work demanded he leave for work early; he stated that Vickie stayed on the couch.

Ms. Mustico and Mr. Morrow testified that Ms. Mustico visited at Thanksgiving, 1989, at her own request. Ms. Mustico stated that she wanted to see Mary although Thanksgiving was not scheduled visitation. During that visit she rejected Mr. Morrow's suggestion of reconciliation. However, the parties both acknowledged that, during Mustico's Christmas visit, they were unable to resolve their personal differences. After heated conversation and some violence and threatening language, Ms. Mustico left during the night with Mary, and returned her on January 2, 1990, to her father in Meridian.

Morrow testified at length about Ms. Mustico's unfulfilled promises of telephone calls and visits with her daughter and of the effects upon the daughter of these unrealized expectations. Ms. Mustico gave her explanations to the Court.

Both home environments were described by the parties and witnesses. Ms. Mustico was working two to three jobs at intervals. One job was as bartender, from which location she made her telephone calls to Mary since she had no home telephone. Mr. Morrow monitored the telephone calls "to be sure that [Mary] can understand what her mother is talking about."

Each party claimed that there were overnight visitors of the opposite sex in the other's home during Mary's presence. Ms. Mustico criticized Morrow's attention to his daughter's hygiene habits and his meal planning. Morrow complained of Ms. Mustico's drinking habits and her "live-in" male friends.

The chancery court rendered its opinion on September 4, 1990, and its judgment declining to modify custody on October 5, 1990. The chancellor found that, as defined by Miss.Code Ann. Sec. 93-23-5 (1972), Mary's homestate was Mississippi at that time and the chancery court did have jurisdiction of the parties and subject matter of Mr. Morrow's complaint. Regarding the substantive issues, the court found from the facts that Ms. Mustico had engaged in an "illicit relationship" during Mary's visit but that, under the totality of the circumstances, the relationship had not detrimentally affected Mary at her young age. The court declined to change the joint custody award as previously ordered because of the absence of a change of circumstances that adversely affected the child. However, in the judgment the chancellor ordered that

the Alaska Decree of Divorce is modified to the extent that the Defendant shall be prohibited from exercising visitation or custody with Maryeileen Morrow in the presence of any male to whom she is not Mr. Morrow appealed the judgment of the chancery court.

married or to whom she is not related from 10:30 P.M. to 7:00 o'clock A.M. on any day that Maryeileen Morrow has visitation with or is in the custody of the Defendant....

II. DID THE CHANCERY COURT HAVE JURISDICTION?

Ms. Mustico, appellee, raises the threshold issue of whether the chancery court committed procedural error in assuming jurisdiction to hear the petitioner/appellant's case in the first instance. The appellee's procedural posture bears examination. In order to preserve an objection to personal jurisdiction, the party making that objection must assert it in a pre-answer motion or in the answer. O'Neill v. O'Neill, 515 So.2d 1208, 1212 (Miss.1987); see also Alpaugh v. Moore, 568 So.2d 291, 294 (Miss.1990). Ms. Mustico did so. While her answer to the modification complaint did not specifically mention Civil Procedure Rule 12(h), she did deny the assertion of the chancery court's jurisdiction ¹. Prior to her answer, Ms. Mustico appeared before the Lauderdale County court on a complaint for habeas corpus. While her complaint in that action does not appear in this court file, this court file does include Ms. Mustico's special appearance to tender monies. In that document, she noted the yet-undetermined jurisdiction of the Lauderdale County court. Therefore, based on available records, it appears that Ms. Mustico preserved her objection to personal jurisdiction in the appearances she...