Stowers v. Humphrey

• Decision Date: 20 February 1991
• Docket Number: No. 90-CA-0336,90-CA-0336
• Citation: 576 So.2d 138
• Parties: Rexford V. STOWERS v. Susan C. HUMPHREY.
• Court: Mississippi Supreme Court

Page 138

576 So.2d 138

Rexford V. STOWERS v. Susan C. HUMPHREY.

No. 90-CA-0336.

Supreme Court of Mississippi.

Feb. 20, 1991.

Rehearing Denied March 13, 1991.

John Ott, McComb, for appellant.

Michael A. Boland, Jackson, for appellee.

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

PRATHER, Justice, for the Court:

I.

This case involves the question of whether the trial court properly found the Mississippi Court lacked jurisdiction under the Uniform Child Custody Jurisdiction Act (UCCJA), Miss.Code Ann. 93-23-1, et seq. and whether the trial court properly stayed its proceedings in favor of proceedings in the Alabama court.

The significant facts of this case begin with the Pike County Chancery Court's granting a divorce to Susan C. Humphrey, (then Stowers), and Rexford V. Stowers on November 26, 1986. ¹ The final divorce decree gave Susan custody of the couple's two minor children, Allison Dawn Stowers, aged 14, and Alicia Dianne Stowers, aged 9, with Rex receiving reasonable visitation rights. In June of 1987, Susan moved to Huntsville, Alabama with the two girls.

On July 13, 1988, Rex was granted a modification of the final divorce decree. The record does not disclose any of the details of this modification. On October 30, 1989, Rex again petitioned the Pike County Chancery Court for further modifications of the final divorce decree, i.e. (1) a reduction of monthly child support, (2) an order requiring Susan to provide the girls transportation to Jackson for visits with their father, (3) and an order for the submission to Rex of the girls' report cards, standardized test scores, and notice of any hospitalization of the girls. ²

On December 5, 1989, Susan filed a complaint in the Circuit Court of Madison County, Alabama, requesting a limitation or, in the alternative, a termination of Rex' visitation privileges. ³ On December 19, 1989, Susan filed a motion in the Pike County Chancery Court, based on the UCCJA, specifically Miss.Code Ann. Secs. 93-23-5, 93-23-11, and 93-23-13 (Supp.1990), to dismiss the October 30 petition, for lack of jurisdiction, or to stay the proceedings and make a determination that the Circuit Court of Madison County, Alabama, was a more appropriate forum and that the Pike County Chancery Court was an inconvenient forum.

At the hearing, the chancellor found that Susan and the girls had resided in Alabama for over 2 and 1/2 years and that Alabama was their home state and that Rex had moved to Hinds County and was no longer a resident of Pike County. The chancellor stated that Mississippi did not have jurisdiction under the UCCJA to modify the final divorce decree; and that the Alabama court was the more appropriate forum to resolve the issues involved. The chancellor stayed the Mississippi proceeding pending a decision by the Alabama court.

Rex appeals the decision and contends the chancellor incorrectly declined jurisdiction and stayed the proceedings of the Mississippi court under the UCCJA and that he erred in basing his decision on Rex's presence in Hinds County.

II.

First, as in all cases coming before this Court, it is important to establish the standard of review. The findings made by a chancery court sitting as a finder of fact are reviewed under the substantial evidence/manifest error standard. Shearer v. Shearer, 540 So.2d 9, 11 (Miss.1989). This standard provides that the findings of the chancellor will not be reversed if supported by substantial evidence; or that the finding will be upheld unless manifestly in error. Applying this standard, the Court turns now to the law.

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 Sec. 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 Sec. 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).

The jurisdiction provision of the UCCJA states:

Sec. 93-23-5. Jurisdiction.

(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.

Miss.Code Ann. Sec. 93-23-5(1) (Supp.1990).

The UCCJA notwithstanding, this Court has stated that a chancery court that enters the original 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). Bradshaw preceded the adoption of the UCCJA by this state; however, subsequent cases interpreting the UCCJA's jurisdiction section do not reject continuing jurisdiction. See Siegel v. Alexander, 477 So.2d 1345 (Miss.1985); Hobbs v. Hobbs, 508 So.2d 677 (Miss.1987); Roberts v. Fuhr, 523 So.2d 20 (Miss.1987) (continuing jurisdiction found because of the existence of a ne exeat bond). 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.

Applying this principle to the case sub judice, the chancellor incorrectly found that the Pike County Chancery Court was without jurisdiction. The original divorce and custody decree was made in Pike County, giving that court continuing jurisdiction to make modifications. Even though Susan and the girls moved to another state, the Pike...