Ortega v. Lovell

• Citation: 725 So.2d 199
• Decision Date: 17 December 1998
• Docket Number: No. 97-CA-00241-SCT.,97-CA-00241-SCT.
• Parties: Mercedes Garcia Lovell ORTEGA v. John M. LOVELL.
• Court: United States State Supreme Court of Mississippi

725 So.2d 199

Mercedes Garcia Lovell ORTEGA v. John M. LOVELL.

No. 97-CA-00241-SCT.

Supreme Court of Mississippi.

December 17, 1998.

Walter W. Teel, Jackson, Attorney for Appellant.

W. Eugene Henry, Biloxi, Attorney for Appellee.

BEFORE PITTMAN, P.J., JAMES L. ROBERTS, Jr. AND SMITH, JJ.

PITTMAN, Presiding Justice, for the Court:

STATEMENT OF THE CASE

¶ 1. John M. Lovell, ("John") a U.S. citizen and Mercedes Garcia Lovell Ortega, ("Mercedes") a Spanish national citizen, were married in Charleston, South Carolina on June 12, 1975. The couple separated October 25, 1985, in Spain. The couple had one child, Kristina Mercedes Lovell, ("Kristina") who was born September 9, 1983.

¶ 2. John filed for a divorce in the Chancery Court of Harrison County, Mississippi in May of 1987. By order of the court, the couple was granted a divorce on July 20, 1987. The Judgment of Divorce granted joint custody of Kristina to John and Mercedes, but granted physical custody to Mercedes. The Judgment further ordered John to pay $200 per month in child support.

¶ 3. In March of 1989, John filed a Motion for Citation for Contempt against Mercedes complaining of her failure to grant his visitation rights. As a result of that Motion, the Chancery Court of Harrison County issued an order stating that it had jurisdiction of the parties. The chancellor further found Mercedes to be in willful and contumacious contempt of court for failing to provide John his specified visitation as set out in the original divorce decree. The chancellor further ordered that Kristina's custody was to be transferred from Mercedes to John for a period of nine (9) months commensurate with the 1989-1990 school year "to make up for lost times." At the end of nine (9) months Kristina was to be transferred back to her mother, and John's visitation reverted to summer months. Mercedes, however, did not comply with the court's order in that Kristina was never sent to live with John in Biloxi.

¶ 4. The case now before the Court arises from a motion filed by John in the Harrison County Chancery Court on July 5, 1994, seeking to cite Mercedes for contempt of court and requesting that he be granted full custody of Kristina. Mercedes, through her attorney, filed a special appearance to contest jurisdiction of the Harrison County Chancery Court pursuant to the provisions of the Uniform Child Custody Jurisdiction Act ("UCCJA").

¶ 5. The chancellor overruled Mercedes' objection to jurisdiction and proceeded with a hearing on John's motion on September 26, 1996. By order dated June 8, 1989, the court granted physical custody of Kristina to John.

¶ 6. Feeling aggrieved by this decision, Mercedes perfected an appeal to this Court raising the following issues:

I. THE COURT WAS MANIFESTLY IN ERROR WHEN IT OVERRULED THE APPELLANT'S OBJECTION TO JURISDICTION UNDER THE UNIFORM CHILD CUSTODY JURISDICTION ACT.

II. THE TRIAL COURT ERRED IN TRANSFERRING CUSTODY TO THE APPELLEE.

III. THE LOWER COURT ERRED IN ELIMINATING CHILD SUPPORT REQUIREMENTS.

IV. THE CHANCELLOR ERRED IN AWARDING ATTORNEY'S FEES.

ANALYSIS

I. THE COURT WAS MANIFESTLY IN ERROR WHEN IT OVERRULED THE APPELLANT'S OBJECTION TO JURISDICTION UNDER THE UNIFORM CHILD CUSTODY JURISDICTION ACT.

¶ 7. In appellant's first assignment of error, she argues that California, where she now resides and did reside at the time John filed his motion pursuant to the UCCJA, is the home state of the child under the provisions of the UCCJA and thus California was a more proper forum to decide the issues presented than was Mississippi. Mercedes argues that all of the evidence, witnesses, pertinent school records, friends, and surroundings regarding the child are located in the State of California and that California is the proper forum for a custody modification and not the State of Mississippi.

¶ 8. The appellee argues that because Mercedes had previously been held in contempt of the Harrison County Chancery Court for failure to comply with a visitation order, Mississippi was the only jurisdiction that had the right to enforce the contempt order. See Culpepper v. State, 516 So.2d 485 (Miss. 1987)

. The appellee further maintains that the trial court in the case at bar retained jurisdiction to see that previous orders of said court were carried through.

¶ 9. Both Mississippi and California were proper forums to hear this case. See Jones v. Starr, 586 So.2d 788 (Miss.1991)

; Johnson v. Ellis, 621 So.2d 661 (Miss.1993). "This Court has interpreted the UCCJA as providing for concurrent jurisdiction, not mutually exclusive jurisdiction. Typically, the two states sharing concurrent jurisdiction will be the state which issued the original divorce or custody decree, and the state to which the custodial parent and children have moved." Johnson, 621 So.2d at 665. Thus, Mississippi, where the original divorce decree was entered, and California, where both Mercedes and Kristina live, have concurrent jurisdiction.

¶ 10. "As a matter of state law, a court that enters the original custody decree has jurisdiction to subsequently modify the decree separate and apart from the jurisdictional section of the UCCJA." Jones, 586 So.2d at 790 (citing Stowers v. Humphrey, 576 So.2d 138, 141 (Miss.1991)

). However, in Jones this court determined that "[t]he court can decline to exercise its continuing jurisdiction if it is determined there is a more convenient forum." Id. See also Miss.CodeAnn. § 93-23-13 (1994). In Jones, this Court found that the Lauderdale County Chancery Court was incorrect in determining it did not have continuing jurisdiction over a custody matter contained in a judgment for divorce entered by the same court. However, this Court further determined that the Lauderdale County Chancery Court would not have been manifestly in error if it had determined that the Texas forum was a more appropriate forum. Id. at 791; See Stowers, 576 So.2d at 141; Hobbs v. Hobbs, 508 So.2d 677 (Miss. 1987). In the case at bar, the chancellor did not even consider whether the California forum was more convenient than Mississippi.

¶ 11. Section 93-23-5 of the Uniform Child Custody Jurisdiction Act provides for the circumstances under which a court of Mississippi may assume jurisdiction over matters of custody. Section 93-23-5 reads in its pertinent part as follows:

(1) 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 the proceeding, or (ii) had been the child's home state within six (6) months before commencement of the proceedings and the child is absent from this state because of his removal or retention by a person claiming his custody or for other reasons, and a parent or person acting as parent continues to live in this state; or

(b) It is in the best interest of the child that a court of this state assume jurisdiction because (i) the child and his parents, or the child and at least one (1) contestant, have a significant connection with the state, and (ii) there is available in this state substantial evidence concerning the child's present or future care, protection, training and personal relationships ...

Miss.Code Ann. § 93-23-5 (1994).

¶ 12. "Modification decree" is defined as "a custody decree which modifies or replaces a prior decree, whether made by the court which rendered the prior decree or by another court." Miss.Code Ann. § 93-23-3(h) (1994). See Johnson, 621 So.2d at 664

.

¶ 13. However, recent case law from this Court makes it clear that just because a Mississippi court can exercise jurisdiction does not mean it always should. The chancellor in the case sub judice relied solely on the fact that the original divorce decree was entered in this state in assuming jurisdiction over the custody of Kristina. A chancellor is not obliged to assume jurisdiction over a particular custody matter if another state's court is a more appropriate forum. Miss. Code Ann. § 93-23-13 (1994). This statute clearly supports a finding by a chancellor that even though his court may have jurisdiction, he is not obligated to assume it if another state is a more appropriate forum. California is the "home state" of Kristina, and it would be in her best interest to have the case decided there due to her significant connection with that state and the availability of evidence concerning her present or future care, protection, training and personal relationships.

¶ 14. This Court has established a three-step process for determining, under the UCCJA, whether a state should assume jurisdiction of a custody matter: A court must first determine if it has authority, or jurisdiction, to act following the guidelines of Miss.Code Ann. § 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 Miss.Code Ann. § 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. Stowers v. Humphrey, 576 So.2d 138, 140 (Miss.1991) (citing Hobbs v. Hobbs, 508 So.2d 677, 680 (Miss.1987)

).

¶ 15. This Court, in Johnson, reversed a chancellor who failed to relinquish jurisdiction to another forum holding that:

While the decision of whether to exercise or decline continuing jurisdiction is left to the chancellor, this Court has occasionally found error where a chancellor did not relinquish jurisdiction to another forum. In Siegel v. Alexander, 477 So.2d 1345 (Miss.1985), Ferrell and Brenda Alexander were divorced in Neshoba County in 1979, with custody of their two children awarded to Brenda.

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