Saint v. Quick
| Docket Number: | 2008-CA-01333-COA | |
| Court of Appeals: |
Opinion Link Opinion Date: 12-15-2009 Opinion Author: Irving, J. Holding: Affirmed in part, reversed and remanded in part. |
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| Additional Case Information: |
Topic: Modification of child custody - Appealable claims - Motion to dismiss - Res judicata - M.R.C.P. 60(b) motion - Visitation - Security bond Judge(s) Concurring: KING, C.J., LEE AND MYERS, P.JJ., GRIFFIS, BARNES, ISHEE, ROBERTS, CARLTON AND MAXWELL, JJ. Procedural History: Bench Trial Nature of the Case: CIVIL - DOMESTIC RELATIONS |
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| Trial Court: |
Date of Trial Judgment: 05-21-2008 Appealed from: SIMPSON COUNTY CHANCERY COURT Judge: Joe Dale Walker Disposition: DENIAL OF RECONSIDERATION OF CUSTODY ORDER, CONTEMPT, AND TRANSFER TO ALABAMA COURT Case Number: 2006-016 |
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| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | TABATHA RENEE QUICK SAINT |
PHILIP A. GUNN |
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| Appellee: | JEFFREY DALE QUICK | TERRELL STUBBS | ||
Synopsis provided by:  If you are interested in subscribing to the weekly synopses of all Mississippi Supreme Court and Court of Appeals hand downs please contact Tammy Upton in the MLI Press office. |
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| Topic: | Modification of child custody - Appealable claims - Motion to dismiss - Res judicata - M.R.C.P. 60(b) motion - Visitation - Security bond |
| Summary of the Facts: | When Jeffrey Quick and Tabatha Quick Saint divorced, the parties agreed that Tabatha and Jeffrey would share joint legal custody of the couple's children, but that Tabatha would have primary physical custody of them. Thereafter, Jeffrey filed a petition for modification of the custody agreement, alleging that a material change in circumstances that affected the children had occurred. Tabatha requested that the case be transferred to Alabama, where she had moved after the divorce. After a hearing that both parties attended, the chancery court declined to transfer the case to Alabama. When a hearing was held to adjudicate Jeffrey’s petition, Tabatha refused to attend this hearing on the ground that she had not received notice and that the chancery court did not have jurisdiction over her. The chancery court found that it had continuing jurisdiction over the parties and their children, custody be transferred from Tabatha to Jeffrey, Tabatha be jailed until she delivered the children to Jeffrey, and Tabatha be denied any visitation with the children until such was specifically granted by the chancery court. Tabatha appeals. |
| Summary of Opinion Analysis: | Issue 1: Appealable claims The only notice of appeal that Tabatha ever filed was filed within thirty days of the July 14, 2008, orders, one of which found Tabatha in contempt and required her to post the $7,500 security bond, and the others of which dealt only with Tabatha’s M.R.C.P. 60(b) motion and her motion to dismiss. Therefore, the only issues that are properly before the Court are those that were raised in those two motions, as well as any issue based on the July 18 order of contempt. The July 18 contempt order found that Tabatha had failed to deliver the children to Jeffrey, as was ordered by the chancery court on January 7. The order did not adjudicate the Albright factors or grant Jeffrey primary custody of the children, as both had already been done by a prior court order, which Tabatha never appealed. Therefore, the only issues that Tabatha can appeal regarding the contempt order is her jailing, the requirement that she pay for the guardian ad litem’s services, her lack of visitation, and the requirement that she post a $7,500 bond. As Tabatha is no longer in jail, any complaint about that aspect of the court’s ruling is moot. Tabatha does not complain about the court’s requirement that she pay for the GAL’s services. Therefore, the only two issues from the contempt order that are still alive are the imposition of the security bond and the court’s refusal to allow Tabatha visitation with her children. Issue 2: Motion to dismiss In her motion to dismiss, Tabatha asserted that she did not receive notice of the January 7, 2008, hearing, and that the chancery court did not have jurisdiction due to the UCCJEA. Tabatha’s contentions in the motion are procedurally barred by the doctrine of res judicata. Tabatha raised the issue of the UCCJEA and jurisdiction in August 2007, and the chancery court had a hearing on August 9, 2007, on Tabatha’s motion. Thereafter, on September 18, 2007, the chancery court entered an order finding that it had full jurisdiction over the case and that the case would not be transferred to Alabama. Tabatha did nothing to appeal the September 18 order at the trial or appellate level. As to notice of the January 7, 2008, hearing, the chancery court implicitly found that Tabatha had been served with notice of the hearing when it proceeded on that date without her present. Tabatha did not appeal the resulting order that was entered on January 10, 2008, within thirty days. Therefore, she is also procedurally barred from protesting any alleged lack of notice concerning the January 7 hearing. Issue 3: M.R.C.P. 60(b) motion Tabatha’s Rule 60(b) motion was filed on February 22, 2008, approximately six weeks after the chancery court entered its order. The motion asserted that the January 10 order of contempt was void. The motion also asserted, without referencing any basis in Rule 60, that Tabatha should be granted relief because she and the children had moved to Alabama. Essentially, the Rule 60(b) motion raised the same grounds as the motion to dismiss. The issue of where Tabatha and the children resided, and the resulting implications raised by the UCCJEA are barred as res judicata. Furthermore, this complaint does not fall under any of the grounds for relief in Rule 60. As for any allegation that the chancery court had no personal jurisdiction over Tabatha, it is uncontradicted that Tabatha appeared before the court on August 9, 2007, and submitted to the court’s jurisdiction. There is nothing in the record to indicate that Tabatha’s August 9 appearance was a special appearance solely to contest jurisdiction. Issue 4: Visitation In granting or denying visitation, a chancellor’s primary concern must be the best interest of the child, while still considering the rights of the non-custodial parent, recognizing the need to maintain a healthy, loving relationship between the non-custodial parent and his child. Furthermore, there must be evidence presented that a particular restriction on visitation is necessary to avoid harm to the child before a chancellor may properly impose the restriction. Here, the chancellor abused his discretion in refusing to award any visitation to Tabatha. There is no indication that there was any impending harm to the children sufficient to justify a complete denial of visitation to Tabatha. Issue 5: Security bond The issue of the security bond is also remanded to the chancery court. While the use of a bond in visitation cases is not unheard of in Mississippi, the purpose of the ne exeat bond is to ensure that the orders of the court will not be ignored. Here, the bond should be required only if there is a substantial risk that necessitates such an imposition, taking into account whatever other restrictions the chancellor imposes on Tabatha’s visitation with the children. |
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