Sanford v. Arinder, 2000-CA-00294-COA.

• Court: Court of Appeals of Mississippi
• Writing for the Court: Before McMILLIN, C.J., THOMAS, and CHANDLER, JJ.
• Citation: 800 So.2d 1267
• Parties: Kimberly Arinder SANFORD, Appellant, v. Charles Scott ARINDER, Appellee.
• Docket Number: No. 2000-CA-00294-COA.,2000-CA-00294-COA.
• Decision Date: 04 December 2001

800 So.2d 1267

Kimberly Arinder SANFORD, Appellant,
v.
Charles Scott ARINDER, Appellee

No. 2000-CA-00294-COA.

Court of Appeals of Mississippi.

December 4, 2001.

800 So.2d 1269

Robert R. Marshall, Hattiesburg, Attorney for Appellant

Martha Renee McBride Porter, Columbia, Attorney for Appellee.

Before McMILLIN, C.J., THOMAS, and CHANDLER, JJ.

THOMAS, J., for the Court.

¶ 1. Kimberly Arinder, the natural mother, appeals the lower court's order of custody modification which transferred custody of the two children to Charles Scott Arinder, the natural father. Kim asserts the following issues:

I. THE CHANCERY COURT DID NOT HAVE JURISDICTION OF THE PROCEEDINGS.

II. THE CHANCERY COURT DENIED KIM DUE PROCESS OF LAW.

III. CHANCELLOR THOMAS SHOULD HAVE RECUSED HIMSELF ON JULY 12, 1999 AND SET ASIDE THE ORDER OF JUNE 8, 1999.

IV. THE CHANCELLOR COMMITTED REVERSIBLE ERROR IN ORDERING A MODIFICATION OF CUSTODY.

V. THE CHANCELLOR COMMITTED REVERSIBLE ERROR BY APPOINTING A GUARDIAN AD LITEM AND ACCEPTING THE REPORT OF THAT GUARDIAN AD LITEM.

FACTS

¶ 2. Kim and Scott were married on May 23, 1990. They had two children, Devin, born March 27, 1991, and Dustin, born May 1, 1994. Kim and Scott divorced on the grounds of irreconcilable differences on January 25, 1996. The divorce decree provided that both Kim and Scott had joint legal custody of the children, while Kim was given physical custody and Scott was given liberal visitation rights. The parties have been in continuous litigation involving visitation and custody of the children ever since. As Scott points out, there have been over fifty entries in the docket since the divorce and prior to January 1999.

¶ 3. Scott filed an amended complaint to cite for contempt and for modification of custody on January 11, 1999, and served Kim with a summons to appear and answer on February 22, 1999. Kim appeared and the matter was set for trial on April 21, 1999.

¶ 4. Some time between May 24 and May 30, 1999, and while the above mentioned matter was pending before the court, Kim moved to Guam, taking the children with her. Kim gave Scott no notice of the move. Scott was to receive alternate weeks of summer visitation with the children beginning May 30, 1999. On May 30, 1999, Scott arrived at Kim's house to find it empty. Scott called Kim's attorney and learned from her that Kim and the children had moved to Guam.

¶ 5. Scott filed a motion for emergency relief and Dawn Fulce, Kim's attorney at that time, was given notice of the motion. Fulce appeared and the matter proceeded to trial. After hearing the motion, on June 8, 1999, Chancellor Thomas granted Scott temporary custody of the children and suspended child support payments while finding Kim in contempt and ordering her to return the children to Mississippi

800 So.2d 1270

immediately. Kim ignored this order of the court and kept the children in Guam

¶ 6. Kim filed a motion to recuse Chancellor Thomas and set aside the June 8, 1999 order. There was a hearing on such motions on July 13, 1999, wherein both motions were denied.

¶ 7. Scott traveled to Guam and brought the matter before the appropriate court in that territory. That judge enforced the temporary custody order and delivered physical custody of the children to Scott. Scott returned to Mississippi with the children at that time.

¶ 8. Kim then returned to Mississippi and filed a complaint for writ of habeas corpus and alleged that Scott had abused the children. The court, upon Kim's motion, appointed a guardian ad litem, Sheila Smallwood. The matter was heard again on September 13, 1999, where the court heard testimony from the guardian ad litem which clearly indicated that there was no abuse. The court also held that the issue of custody was deserving of a full trial and until that time it was in the best interests of the children to remain in Scott's custody. Due to ex parte contacts from Kim and members of her family, Chancellor Thomas recused himself from the case. Kim filed a second complaint for writ of habeas corpus which was heard by Chancellor Dale. The matter proceeded to trial in December of 1999, wherein the chancellor ordered a modification of custody, giving physical custody of the children to Scott.

ANALYSIS

I. DID THE CHANCERY COURT HAVE JURISDICTION OF THE PROCEEDINGS?

¶ 9. There is nothing in the record indicating that the chancery court lacked jurisdiction during the December 1999 trial. The chancery court had personal jurisdiction because "when a divorce has been granted by a Mississippi court and the court had personal jurisdiction of the defendant at the time of the divorce that personal jurisdiction continues." Covington v. Covington, 459 So.2d 780, 781 (Miss.1984). The Mississippi Supreme Court has held that a chancery court that enters the original divorce decree has continuing jurisdiction to subsequently modify its custody order even after the parent and child have moved from the state. Bradshaw v. Bradshaw, 418 So.2d 64, 65 (Miss. 1982). Since the chancery court had personal jurisdiction over the parties, notice is all that is required for subsequent pleadings (rather than actual service of process). Covington, 459 So.2d at 782.

II. DID THE CHANCERY COURT DENY KIM DUE PROCESS OF LAW?

¶ 10. There is nothing in the record indicating that the December 1999 trial did not afford Kim due process. Kim claims that the June 8, 1999 order was announced prior to any witness testimony. There is nothing in the record to support this assertion.

III. SHOULD CHANCELLOR THOMAS HAVE RECUSED HIMSELF ON JULY 12, 1999, AND SET ASIDE THE ORDER OF JUNE 8, 1999?

¶ 11. There is nothing in the record indicating that the December 1999 trial was marred by any bias or improper contact with Chancellor Thomas. Therefore, this issue is without merit. We refuse to give way to Kim's argument that the orders and proceedings prior to the December 1999 trial prejudiced Kim in any way. The December 1999 trial was properly conducted and the holding was based on the testimony presented at that trial. However, it should also be noted that,

800 So.2d 1271

given the unusual circumstances, Chancellor Thomas made no improper actions in his role of chancellor

¶ 12. While ex parte communications pertaining to an open case with either party, attorney or witness is improper, the improper ex parte communications that eventually caused Thomas to recuse himself were those that Kim and members of her family initiated. For Kim to now complain of ex parte communications is a farce. A hearing was held on the motion to recuse and testimony was given which established and supported the holding that Thomas was not biased...