Roberts v. Fuhr

• Decision Date: 12 November 1987
• Docket Number: No. 57076,57076
• Citation: 523 So.2d 20
• Parties: Donald Wayne ROBERTS v. Jacqueline FUHR.
• Court: Mississippi Supreme Court

Page 20

523 So.2d 20

Donald Wayne ROBERTS v. Jacqueline FUHR.

No. 57076.

Supreme Court of Mississippi.

Nov. 12, 1987.

Rehearing Denied April 27, 1988.

Carter Dobbs, Jr., Amory, for appellant.

Barry J. Walker, Roy O. Parker, Tupelo, for appellee.

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

PRATHER, Justice, for the Court:

Although efforts to accomplish the aims of the Uniform Child Custody Jurisdiction Act are well intended, courts of sister states may still hold conflicting results on jurisdictional questions. Such opposite results have been reached by the Chancery Court of Itawamba County and a court of similar jurisdiction in Rock Island County, Illinois, in a modification of a child custody and visitation decree. Donald Wayne Roberts, father of Donald Wayne Roberts, Jr., refused the mother, Jacqueline Roberts Fuhr, her visitation rights with their child in reliance on an Illinois decree. The Itawamba Chancery Court, finding that jurisdiction rested in its court, forfeited a ne exeat bond previously posted by the father and adjudicated the father in contempt. The Itawamba Chancery Court action is affirmed.

Donald Roberts, disagreeing with the bond forfeiture and contempt finding, appeals assigning as error:

(1) The chancery court erred in ruling that the Mississippi Court had jurisdiction.

(2) The chancery court erred in overruling the motions of appellant Donald Wayne Roberts who was serving on active duty in the United States Army to stay the proceedings pursuant to provisions of the Soldiers' and Sailors' Civil Relief Act, 50 U.S.C.A.App. Sec. 510 et seq.

(3) The chancery court erred in entering an order on November 12, 1985 finding appellant Donald Wayne Roberts in contempt of court after the Supreme Court obtained jurisdiction by appellants filing a petition for appeal on August 12, 1985 and a notice to court reporter to transcribe notes and designation of record on appeal on August 29, 1985.

I.

The factual situation in this case is necessarily detailed, evidencing proceedings in two states simultaneously after custody dispute arose. Donald Wayne Roberts (hereinafter Roberts) and Jacqueline Roberts Fuhr, (hereinafter Fuhr) were married on December 29, 1969, in Fulton, Mississippi. They had one child, Donald Wayne Roberts II, who was born August 2, 1971.

On August 5, 1975 the couple divorced in Itawamba County, Mississippi, the county of their residence. Custody of the minor child, Donald Wayne Roberts, was awarded to Fuhr, and Roberts was ordered to pay $150.00 per month as child support. During the summer visitation of 1978, the father took the child with him to Germany, where the child remained. After several confrontations concerning custody of the child, on July 15, 1983 a consent decree was entered between the parties providing:

(1) That Roberts had purged himself of all previous allegations of contempt.

(2) A material change in circumstances required that child support payable to Fuhr be increased to $175.00 per month.

(3) Roberts would have visitation rights for one month in the summer and on other specified dates.

(4) Roberts would pay Fuhr $500.00 in attorney's fees.

(5) Roberts would post a ne exeat bond in the amount of $20,000 requiring full compliance with the consent decree.

On January 19, 1984, Roberts filed a motion for modification in the Itawamba Chancery Court alleging that material changes of circumstances adversely affecting the minor child had occurred and that the minor child, age 12, had expressed his desire to live with his father and that custody of the child should be awarded to Roberts.

On May 25, 1984, Fuhr answered the motion for modification denying that there had been any material change in the circumstances. She filed a cross-complaint alleging material changes in circumstances for herself, asking Roberts to pay $400 per month as child support and to pay all medical bills incurred by the minor child. On June 27, 1984, a final decree was entered ordering that:

(1) Roberts be awarded permanent care, custody and control of the minor child;

(2) Fuhr be awarded custody during two months of the summer, Spring or Easter holidays, and Christmas holidays of each year. She was granted other visitation as long as it did not adversely affect the child's education.

(3) Roberts was to pay Fuhr $300 per month during the two months visitation.

(4) Roberts was to pay for all medical bills incurred by the minor child.

(5) Roberts was to pay Fuhr $500 for her attorney's fee.

(6) The ne exeat bond of $20,000 was continued in order that Roberts fully comply with all provisions of the decree.

On May 13, 1985 Roberts filed a petition to modify in the Circuit Court of Rock Island County, Illinois under the Uniform Child Custody Jurisdiction Act of the State of Illinois, alleging that the child suffered physically and psychologically from visitation periods with his mother, that it would be in the best interest of the minor child to modify the two months summer visitation period with Fuhr and that the State of Illinois was the "home state of the minor child". Notice of hearing was sent to Mrs. Fuhr presumably in compliance with Illinois law.

On May 25, 1985, Fuhr filed a complaint for citation for contempt and forfeiture of the ne exeat bond required by the Itawamba Chancery Court against Roberts alleging that Roberts had filed a proceedings in the State of Illinois to modify the previous decree of the Itawamba County Chancery Court.

The record represents that on May 31, 1985 Judge David Dedoncker, Circuit Judge of the Fourteenth Judicial District of Rock Island County, State of Illinois entered an order finding that it should assume jurisdiction with respect to custody and modification pursuant to the Uniform Child Custody Jurisdiction Act of the State of Illinois, that the minor child and Donald Wayne Roberts had significant connections with the State of Illinois and that substantial evidence existed in Illinois concerning the best interests of the child and that there presently existed an emergency concerning the health and well-being of the child, mentally and physically, which dictated that jurisdiction be assumed. The court in its order enjoined Fuhr from contact with the minor child.

On June 18, 1985 a hearing was held in the Itawamba County Court on the complaint for citation for contempt and forfeiture of the ne exeat bond against Roberts. Roberts filed a motion to dismiss because the Illinois Circuit Court had assumed jurisdiction. His motion was overruled.

On June 24, 1985 Chancellor Malski ruled that a hearing had been held in Rock Island County, Illinois concerning the petition filed by Donald Wayne Roberts; that Honorable Joseph F. Beatty, Judge of that court, took the proceedings under advisement; that the Illinois Court would not assume jurisdiction and was convinced that the minor child was in need of immediate surgery to be scheduled in Illinois; and that if Roberts failed to deliver the child to Fuhr for visitation once the child was able to travel, the court would then deal with the complaint for citation for contempt and for forfeiture of ne exeat bond.

Exhibits concerning the physical and psychological reports on the minor child were filed in the Itawamba Court alleging adverse effects on the child by visitation with his mother.

On July 29, 1985 Donald Wayne Roberts filed a motion for stay of proceedings under the Soldiers' and Sailors' Civil Relief Act, alleging that he was serving on active duty in the United States Army under orders that made it impossible for him to appear in court in Mississippi before September 1985, and that his ability to conduct his defense was materially affected by reason of his military service. This motion was overruled.

Also, on July 29, 1985 Fuhr filed in the Itawamba Chancery Court a petition to modify the decree and for citation of contempt against Roberts, alleging that the minor child had suffered physical and psychological problems while in the custody of Roberts and asking that custody be changed to her, that Roberts be required to pay $400.00 per month as child support, tuition and private schooling and all medical, dental and optical expenses of the child and a reasonable attorney's fee, and that the court find Roberts in contempt of court for violation of the previous decree of the court dated June 27, 1984.

On July 30, 1985, Honorable Joseph F. Beatty, Circuit Judge of the Fourteenth Judicial District of the State of Illinois, entered an order pursuant to the petition to modify filed by Roberts. Judge Beatty continued the matter generally, required the minor child to receive medical treatment as soon as possible and rescheduled the matter for further hearing after the minor had corrective surgery and had recovered fully.

On the same date in Mississippi, July 30, 1985, the Itawamba court ordered the $20,000 ne exeat bond forfeited to Fuhr, and judgment was entered against Roberts, Horace Roberts and Henry F. Rogers in the sum of $20,000 plus eight (8) percent per annum interest in costs if the minor child Donald Wayne Roberts, II was not delivered to Mrs. Fuhr on August 5, 1985. The matter of contempt was deferred until after August 5, 1985. On August 12, 1985 Roberts filed a petition for appeal.

On September 18, 1985 an opinion of Circuit Judge Joseph F. Beatty, Illinois, was filed. This opinion found that the Illinois Court had jurisdiction of Roberts and Fuhr and the minor child Donald Wayne Roberts II, under requirements of the Uniform Child Custody Jurisdiction Act of the State of Illinois, had been a resident citizen of the State of Illinois for over one year, that visitation by Fuhr, the natural mother, could not be carried out without psychological and physical damage to the minor child, that the child (14 years of age) had a strong desire to stay with his natural father and stepmother and never speak to or see his natural mother again, and that it was in the best...