White v. White
| Docket Number: | 2008-CA-01246-SCT | |
| Supreme Court: | Opinion Link Opinion Date: 01-28-2010 Opinion Author: Dickinson, J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Child custody - Jurisdiction - UCCJEA - Section 93-27-202(a) - Section 93-27-209(2) - Forum non conveniens - Section 93-27-208 - Material change in circumstances Judge(s) Concurring: Waller, C.J., Carlson and Graves, P.JJ., Randolph, Lamar, Kitchens, Chandler and Pierce, JJ. Procedural History: Bench Trial Nature of the Case: CIVIL - CUSTODY |
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| Trial Court: |
Date of Trial Judgment: 05-15-2008 Appealed from: TISHOMINGO COUNTY CHANCERY COURT Judge: Kenneth M. Burns Disposition: The trial court awarded physical custody of the minor child to John R. White, with Vicki White having reasonable visitation rights. Case Number: 97-0369 |
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| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | VICKI D. WHITE |
ADAM A. PITTMAN, HELEN BAGWELL KELLY |
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| Appellee: | JOHN R. WHITE | GREGORY D. KEENUM | ||
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: | Child custody - Jurisdiction - UCCJEA - Section 93-27-202(a) - Section 93-27-209(2) - Forum non conveniens - Section 93-27-208 - Material change in circumstances |
| Summary of the Facts: | Rusty White and Vicki White were divorced in 1998. They agreed that they would share joint legal custody of the couple’s three children and that Vicki would have physical custody of the children. Vicki moved with the three children to Texas in 1999. In 2001, without either party consulting the chancery court, the parties’ oldest child moved back to Mississippi to live with Rusty. In 2003, Rusty filed a Petition to Modify the Divorce Decree seeking custody of the children because Vicki had moved to Texas, and because the oldest child had been living with him for two years before the petition was filed. The parties’ youngest son remained with Vicki in Texas from the time she moved in 1999 until a period of extended visitation with Rusty began in 2006. In 2006, Rusty filed a Petition for Modification of Final Decree seeking custody of the children and related relief, but no process was had on this petition. Rusty and Vicki agreed that the youngest son would visit Vicki in a hotel room in Corinth, Miss. Without informing Rusty, Vicki took her son back to Texas in the middle of the night, and refused to take calls on her cell phone from Rusty or the guardian ad litem. Upon petition from Rusty, the chancery court found Vicki to be in willful contempt of the court’s order, granted emergency custody to Rusty, and ordered the immediate return of the son to Rusty, but no process was ever served on Vicki. Vicki filed a Motion to Dissolve Order Granting Emergency Custody. The emergency temporary order was set aside and the terms of the original divorce decree were reinstated. On the same day, Rusty filed a motion for a Rule 65 hearing. Vicki filed her response, along with a motion to dismiss based on lack of jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act and forum non conveniens. In 2007, Vicki filed a custody action in Texas state court. In 2008, the chancery court awarded Rusty custody of the couple’s youngest son. Vicki appeals. |
| Summary of Opinion Analysis: | Issue 1: Jurisdiction Vicki argues that the chancery court lacked jurisdiction to hear the case, because Rusty failed to make disclosures required by the UCCJEA; the chancellor erred by failing to consider section 93-27-202(a); the chancellor should have transferred the proceedings to Texas on the basis of forum non conveniens; and the chancery court should have declined to exercise jurisdiction because Rusty has engaged in unjustifiable conduct. The chancery court’s jurisdiction is set by the Mississippi Constitution, and cannot be diminished by statute. Also, the plain language of section 93-27-209(2) provides that, in the event the required disclosures are not filed, the court may stay the proceeding. This issue is not jurisdictional and was within the sound discretion of the chancellor. Because Rusty continuously has resided in Mississippi, it was within the chancellor’s discretion to determine that both the child and Rusty had a significant connection with this state as provided in section 93-27-202. Thus, the chancery court properly has retained continuous, exclusive jurisdiction over this matter. Nothing in the record suggests that the chancellor abused his discretion by failing to grant the motion pertaining to forum non conveniens. Section 93-27-208 provides that if a court of this state has jurisdiction under this chapter because a person seeking to invoke its jurisdiction has engaged in unjustifiable conduct, the court shall decline to exercise its jurisdiction. Mississippi has continuous, exclusive jurisdiction over this matter because it entered the initial child-custody order, not because of any alleged unjustifiable conduct on the part of Rusty. Issue 2: Change in custody Vicki argues that the court erred in finding a material change in circumstances, that the court failed to make any findings that the change in circumstances had an adverse effect upon the couple’s son, and that the chancellor’s findings under the Albright analysis were not supported by substantial evidence, were manifestly wrong, or clearly erroneous. Modification of custody is warranted in the event that the moving parent successfully shows that an application of the Albright factors reveals that there had been a material change in those circumstances which has an adverse effect on the child and modification of custody would be in the child's best interest. The chancellor found the following to be a material change in circumstances adversely affecting the son: Vicki’s violation of the July 2006 order when she removed the son from his father’s care and took him to Texas; the son’s excessive absences from school; Vicki’s lack of cooperation with the guardian ad litem; Vicki’s failure to properly discipline the son; and Vicki’s allowing her daughter and the daughter’s boyfriend to share a bedroom while she had custody of the son. Interference with the exercise of custody can constitute a material change in circumstances. Testimony was given by both sides as to the necessity of the son’s absences from school, including testimony by Rusty that the son had missed only two days of school while in his care. It was not manifest error for the chancellor to consider this issue, and his factual findings were supported by substantial evidence. The guardian ad litem’s report states that Vicki missed appointments and did not regularly make the son available to speak on the phone. Vicki also failed to deliver records requested by the guardian ad litem. It was not error for the chancellor to consider Vicki’s admitted lack of knowledge of how to discipline her fourteen-year-old son as part of his material-change in circumstances and best-interest analysis. The chancellor applied the correct legal standard, and his decision to modify custody from Vicki to Rusty is based upon substantial evidence. |
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