Walker v. Luckey
| Decision Date | 07 August 1985 |
| Docket Number | No. 55962,55962 |
| Citation | 474 So.2d 608 |
| Parties | Gary Curtis WALKER v. Sharon Dawn Walker LUCKEY. |
| Court | Mississippi Supreme Court |
L.C. James, Jackson, Harris Sullivan, Danny Welch, Mendenhall, for appellant.
Aleita M. Sullivan, Mendenhall, for appellee.
Before ROY NOBLE LEE, P.J., and DAN M. LEE and ROBERTSON, JJ.
This is what we perceive to be a case of first impression under Uniform Child Custody Jurisdiction Act (UCCJA) passed by the Legislature of the State of Mississippi and which became effective on July 1, 1982. The best intentions of loving parents that have caused a seven-year-old child, Jeremy Walker, to become "Interstate Jeremy" are the subject of this unfortunate legal battle. It would require the wisdom of Solomon and the patience of Job to solve this age old problem. Possessed with a dearth of both, an eye on a stable environment, the best interest of Jeremy, and the deepest empathy for all, we proceed.
Gary Walker and Sharon Dawn Walker were married on May 10, 1974, in Simpson County, Mississippi. Their only child, Jeremy Clay Walker, was born in May, 1976. The parties were divorced in Simpson County in April, 1979. The divorce was based on irreconcilable differences, and the parties agreed on the following custody arrangement: Mrs. Luckey was to have permanent custody of Jeremy, with Mr. Walker exercising visitation rights on weekends, Wednesday evenings, one month during the summer and alternating Christmas and Thanksgiving holidays.
After the divorce, Mr. Walker, who is in the construction business, moved to Jackson where he lived until March, 1981, when he was transferred to Orlando, Florida. Walker lived there for approximately two years, and at the time this action was brought, had been living in Titusville, Florida, for approximately two months.
Mrs. Luckey, following the divorce, moved to Biloxi, Mississippi, in May, 1979. From May, 1979, until the time that she brought this action, in August, 1983, Mrs. Luckey moved eleven times, married Bobby Outzen, divorced him, and married Robert Luckey.
According to the record in this case, during the time immediately following the divorce of the parties, Jeremy spent time with both of his parents. Although he was in the primary custody of his mother, he often visited his father. In September, 1981, Mrs. Luckey was having serious problems in her marriage with Mr. Outzen. She was also having serious financial problems, and she contacted Mr. Walker to ask him to take Jeremy. According to Mrs. Luckey, Jeremy was to stay with his father until she got on her feet. According to Mr. Walker, the understanding was that he would assume primary care for Jeremy.
Mr. Walker took Jeremy to Florida and enrolled him in kindergarden. With the exception of his Christmas vacation, Jeremy remained with his father until June, 1982. In May, 1982, Mr. Walker filed a petition in Brevard County to modify the original divorce decree. He sought permanent primary custody of Jeremy Walker. Mrs. Luckey suggested one change in the modification, and signed the response and waiver. According to Mrs. Luckey, she only signed the papers after being told that Jeremy would not be sent to her for the summer if she did not sign them. However, she did admit that she had the advice of an attorney before signing the papers.
The Circuit Court of Brevard County found that it had jurisdiction over the subject matter of the case, and entered an order on August 13, 1982, giving primary custody of Jeremy to his father. Mr. Walker was to have custody of Jeremy during the school year, with Mrs. Luckey having him over the holidays and the summer. Pursuant to the terms of the order, Mrs. Luckey returned Jeremy to his father in August, 1982, for him to be taken to Florida. Jeremy spent the next Christmas holiday with his mother and she subsequently returned him to his father in Florida. At the end of the school year, in June, 1983, Jeremy returned again to Mississippi to visit his mother for the summer. However, at the end of the summer, Mrs. Luckey informed Mr. Walker that she had spoken with an attorney, and intended not to return Jeremy. She filed her petition to void the Florida order on August 17, 1983.
While neither parent had alleged that the other was unfit, at trial, each of them offered evidence tending to show that the other was unstable. Both parties offered several witnesses to corroborate the quality of their home life and the quality of their relationship with their son. The record indicated that Jeremy enjoys a close and loving relationship with both of his parents. After Mr. Walker and Mrs. Luckey had testified, the court made the statement that
The court issued a temporary order granting custody of Jeremy to Mrs. Luckey. The final order, issued June 12, 1984, made a finding that Mrs. Luckey only signed the waiver in the Florida proceedings in order to get custody of Jeremy for the summer. The court held that the Circuit Court of Brevard County had no jurisdiction to enter its order because Mrs. Luckey agreed to it only under a form of duress. It also found that the best interest of the child would be served by giving custody to the mother, particularly in light of its finding that Mississippi was the home state of the child. The court required a $3,000 bond of Mr. Walker, conditioned on his returning Jeremy to Mrs. Luckey at the end of each of his visitation periods. It further ruled that each party pay its own attorneys fees, and that Gary Walker pay all court costs.
The appellant's only assignment of error is:
The chancellor erred in assuming and exercising jurisdiction of this cause without regard for the operation of the Uniform Child Custody Jurisdiction Act; failing to award fees and expenses.
The primary issue in this case is whether the decree issued by the Florida court, giving custody of Jeremy to his father, was valid. We hold that it was, and, thus, reverse the decision of the chancellor below.
Gary Walker filed his petition for modification in Florida in June, 1982. At that time, Florida had adopted the Uniform Child Custody Jurisdiction Act (UCCJA). The UCCJA allowed Florida to assume jurisdiction over the child, as long as the child had lived in the state, with a parent, for at least six months, and as long as no other state asserted its jurisdiction over the child. Fla.Stat. Secs. 61.1306, 61.1308 (Supp.1984). When Gary Walker filed his petition, Jeremy had been living with him, at the request of Mrs. Luckey, for over nine months. Walker fully complied with all the requirements of the Florida courts in filing his petition, including the filing of an affidavit providing his address, and the address of the child, for the last five years.
More importantly, Walker notified his ex-wife of the petition approximately one month before he filed it. Mrs. Luckey admitted in her testimony that she received a copy of the petition and that she talked to an attorney about it. The response to the petition, which she signed and returned to Walker, submitted herself to the jurisdiction of the Florida court and consented to the entry of an order there. The response to petition for modification and waiver of notice and hearing, signed and filed by appellee, is as follows:
RESPONSE TO PETITION FOR MODIFICATION AND WAIVER OF NOTICE
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