Peters v. Peters, 98-CA-00477-COA.

Decision Date23 March 1999
Docket NumberNo. 98-CA-00477-COA.,98-CA-00477-COA.
Citation744 So.2d 803
PartiesDaniel PETERS, Appellant, v. Theresa PETERS, Appellees.
CourtMississippi Court of Appeals

David P. Oliver, Gulfport, Attorney for Appellant.

Otto A. Wusnack, Biloxi, Attorney for Appellees.

EN BANC.

PAYNE, J., for the Court:

PROCEDURAL HISTORY AND FACTS

¶ 1. The Peters were married on January 10, 1988 in Tennessee. The couple had one child, Travis Peters, born December 15, 1988. Thereafter, the Peters moved to Virginia. On September 20, 1991, an order for child support was entered by the Commonwealth of Virginia. On December 23, 1996, this action was commenced in Harrison County, Mississippi by the filing of a complaint of divorce based on irreconcilable differences by Daniel Peters against his wife, Theresa Peters. On July 16, 1997, Daniel Peters filed an amended complaint for divorce in which he alleged statutory grounds (habitual cruel and inhuman treatment). An answer was filed by Theresa Peters on August 18, 1997. A motion for temporary relief was filed by Daniel Peters on August 22, 1997. The answer and exhibits were filed by Theresa Peters on August 25, 1997 and August 30, 1997. A temporary support order was entered on October 9, 1997, by the Harrison County chancellor requiring Daniel to pay $257 per month for temporary child support. The court ruled on February 20, 1998, that it lacked jurisdiction to hear any matters regarding child custody, support, and visitation. The chancellor based his decision on the Mississippi Uniform Child Custody Act. Feeling aggrieved by this judgment, Daniel filed his notice of appeal on March 20, 1998. Having reviewed the record and studied the law attendant to the issues presented, we agree that the Harrison County Chancery Court does not have jurisdiction over child custody, support, and visitation.

ARGUMENT AND DISCUSSION OF THE LAW

¶ 2. The standard of review in this case is de novo, because the issue presented is one of law and not fact. Harrison County v. City of Gulfport, 557 So.2d 780, 784 (Miss.1990).

ISSUE PRESENTED

I. WHETHER THE COURT ERRED IN DECLINING TO ASSUME JURISDICTION.

¶ 3. In order to address the question of jurisdiction, a review of statutory law on divorce in Mississippi is helpful. After jurisdiction over the person (which we will discuss below) is determined, we look to the subject matter included in a divorce proceeding. Miss.Code Ann. § 93-5-23 (Rev.1994) says:

When a divorce shall be decreed from the bonds of matrimony, the court, may, in its discretion, having regard to the circumstances of the parties and the nature of the case, as may seem equitable and just, make all orders touching the care, custody, and maintenance of the children of the marriage....

So, it is obvious, within the constraints of the rest of that passage, which are unnecessary for our discussion here, the chancery judge who has in personam jurisdiction over the parties of the marriage may deal not only with divorce but also with care, custody (which includes visitation) and maintenance (support) of the children.

¶ 4. There are requirements in regard to jurisdiction over the parties. In Mississippi, for a couple to begin the process of divorce, at least one party must be a resident of this State for six months. Miss. Code Ann. § 93-5-5 (Rev.1994). In this instance, Daniel met this requirement. Next, in irreconcilable differences cases, as this was originated, the plaintiff and defendant must join in the complaint, or the complaint must be filed "where the defendant can be personally served with process or where the defendant has written an appearance by written waiver of process." Miss.Code Ann. § 93-5-2 (Rev.1994). The divorce papers, no matter the grounds on which the request for divorce is based, must be filed in the county where the Mississippi resident party resides. Miss. Code Ann. § 93-5-11 (Rev.1994). Daniel, a resident of Harrison County, Mississippi filed his divorce papers in Harrison County, as his wife Theresa lives in Virginia.

¶ 5. Almost seven months later on July 16, 1997, Daniel amended his complaint to charge Theresa with habitual cruel and inhuman treatment. Theresa filed an answer on August 18, 1997, and on August 25, 1997, she filed an additional answer. On February 20, 1998, the chancellor granted the parties a divorce, having considered the situation that was presented.

¶ 6. On appeal, Daniel insists that Theresa entered a general appearance in Mississippi for the matter concerning divorce by responding to the divorce complaint —this appearance necessarily including matters pertaining to the child. Thus the question raised—which must be answered —is whether the appearance by Theresa on the matter of divorce invokes jurisdiction on the matters pertaining to the child. Mississippi does not recognize "special appearances" except where a party appears solely to object to the court's jurisdiction over his person on grounds that he is not amenable to process. Mladinich v. Kohn, 250 Miss. 138, 156, 164 So.2d 785, 791 (1964).

¶ 7. The basis for jurisdiction over a non-resident party as found in Miss.Code Ann. § 93-25-9 (Rev.1994) states:

In a proceeding to establish, enforce or modify a support order or to determine parentage, a tribunal of this state may exercise personal jurisdiction over a nonresident individual or the individual's guardian or conservator if:
(b) The individual submits to the jurisdiction of this state by consent, by entering a general appearance or by filing a responsive document having the effect of waiving any contest to personal jurisdiction.

Due to the fact that Theresa had entered several answers to the divorce proceedings, she has entered a "general appearance" and thus has qualified for having personal jurisdiction exercised against her personally. With the issue of personal jurisdiction concluded, we turn toward the issues pertaining to the child.

¶ 8. On appeal, Daniel argues that the chancery court had jurisdiction to adjudicate all matters pending before that court, including child support, visitation rights and custody, and that because the chancellor, having authority, has failed to invoke jurisdiction, error has been committed. Daniel assumes that because the Mississippi trial court invoked jurisdiction over the matter of divorce, that necessarily, the chancellor was compelled to address proceedings which had been resolved in the State of Virginia. We disagree.

OUT OF STATE CUSTODY RULINGS

¶ 9. First we turn to the application of the Uniform Child Custody Jurisdiction Act in order to address the issue of visitation and custody. As stated in Stowers v. Humphrey, 576 So.2d 138, 140-41 (Miss. 1991) the application of the UCCJA in a dispute over jurisdiction between two states is a three step process.

A court must first determine if it has authority, or jurisdiction, to act following the guidelines of § 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 § 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. Hobbs v. Hobbs, 508 So.2d 677, 680 (Miss.1987).

Miss.Code Ann. § 93-23-5 (Rev.1994) (the jurisdiction provision of the UCCJA) states:

(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 proceeding 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; or
(c) The child is physically present in this state and (i) the child has been abandoned, or (ii) it is necessary in an emergency to protect the child because he has been subjected to or threatened with mistreatment or abuse or is otherwise neglected or dependent; or
(d)(i) It appears that no other state would have jurisdiction under prerequisites substantially in accordance with paragraph (a), (b) or (c), or another state has declined to exercise jurisdiction on the ground that this state is the more appropriate forum to determine the custody of the child, and (ii) it is the best interest of the child that this court assume jurisdiction.

¶ 10. From our review of the facts in this case, the child had been living with his mother in Virginia since June of 1995. The child is not a resident of Mississippi, and notwithstanding his father's presence here, he has no connections. Furthermore, we cannot say that it would be in the child's best interest for Mississippi to assume jurisdiction. Virginia has shown an interest in the welfare of this child. Accordingly, we find sufficient evidence to warrant denying the Harrison County Chancery Court jurisdiction over the issue of child custody and visitation based upon the UCCJA.

OUT OF STATE CHILD SUPPORT ORDERS

¶ 11. We now turn our attention to addressing child support. The chancellor decided to defer judgment on matters concerning the child to the ...

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