Rose v. Upshaw


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Docket Number: 2010-CA-00503-COA

Court of Appeals: Opinion Link
Opinion Date: 08-30-2011
Opinion Author: Maxwell, J.
Holding: Affirmed

Additional Case Information: Topic: Grandparent visitation rights - Modification of visitation - M.R.C.P. 15(b) - Subject matter jurisdiction - Section 93-27-203(b)
Judge(s) Concurring: Lee, C.J., Irving and Griffis, P.JJ., Myers, Barnes, Ishee, Roberts, Carlton and Russell, JJ.
Procedural History: Bench Trial
Nature of the Case: CIVIL - CUSTODY

Trial Court: Date of Trial Judgment: 02-26-2010
Appealed from: Rankin County Chancery Court
Judge: Dan Fairly
Disposition: FOUND CONTEMPT AND MODIFIED VISITATION
Case Number: 62,343

  Party Name: Attorney Name:  
Appellant: Russell Dale Rose, Jr.




CHRISTOPHER A. TABB



 

Appellee: Debbie Upshaw ROBERT RUSSELL WILLIARD  

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Topic: Grandparent visitation rights - Modification of visitation - M.R.C.P. 15(b) - Subject matter jurisdiction - Section 93-27-203(b)

Summary of the Facts: Caroline Rose was ten months old when her mother, Dawn, passed away in June 2006. A legal battle immediately ensued between Dawn’s husband, Russell Rose, and mother, Debbie Upshaw, over custody of Caroline. All parties lived in Louisiana at the time. Based on Rose and Upshaw’s agreement, the Louisiana court granted Rose sole custody and permitted him to relocate with Caroline to Mississippi. But it awarded Upshaw five consecutive days per month (sixty days per year) of visitation. This Louisiana judgment was to remain in effect “until the child reaches school age, or under further order of this court.” Rose registered the Louisiana custody order in the Rankin County Chancery Court, in compliance with Mississippi’s Uniform Child Custody Jurisdiction and Enforcement Act. Two years later, Rose filed a petition in the chancery court to modify the Louisiana visitation order. But before Rose served Upshaw with the petition, Upshaw filed a motion for contempt, alleging Rose had denied her the court ordered visitation. Rose responded with a counterclaim requesting modification of the custody and visitation order. He specifically requested Upshaw’s visitation be restricted to a minimum. The chancery court issued an order finding Rose in contempt and modifying Upshaw’s visitation. Rose appeals.

Summary of Opinion Analysis: Rose argues the chancellor erred by granting Upshaw relief she did not request and granting grandparent visitation rights commensurate with the rights of a parent, in violation of his due-process rights and contrary to the Louisiana order. The Mississippi chancellor did not grant Upshaw visitation. The Louisiana court did. And it did so upon an agreed order. Rose never appealed this order claiming it violated his due-process rights or Louisiana law. Instead, he asked Mississippi to give the Louisiana order full faith and credit. Therefore, the sole concern on appeal is the chancellor’s decision to modify the Louisiana visitation order. As a preliminary matter, there is no merit in Rose’s argument that Upshaw could not benefit from the modification because she did not request such relief. The issue of modification was both pled and proved. Rose raised the issue of modification in his answer and counterclaim to Upshaw’s contempt motion. And both parties presented evidence about how the current visitation schedule was not working. Thus, pursuant to M.R.C.P. 15(b), the issue of modification was squarely before the chancellor. Rose argues, since he was the one to plead modification, the chancellor could only modify the visitation order to meet Rose’s specific request that Upshaw’s visitation be restricted. However, on visitation issues, the chancery court enjoys a large amount of discretion in making its determination of what is in the best interest of the child. The chancellor determined it was in Caroline’s best interest to continue a relationship with her deceased mother’s family. But both parties presented the chancellor with evidence the current visitation schedule was not working. Thus, the chancellor was well within his discretion to grant relief in the form of a modified schedule. Although neither party challenges Mississippi’s jurisdiction to modify the Louisiana order, subject-matter jurisdiction cannot be waived. With the Louisiana order properly registered in Mississippi, Mississippi courts gained jurisdiction to enforce the Louisiana order. However, Mississippi court could not modify the order unless the Mississippi court had jurisdiction to make an initial child-custody determination and either Louisiana determined that it no longer had exclusive jurisdiction or that Mississippi would be the more convenient forum or a Mississippi court determined neither the child, the child’s parents, nor any person acting as a parent presently does not reside in Louisiana. Because Caroline had been living in Mississippi for over two years prior to the modification, Mississippi was her “home state” at the time of modification. Because the record contains no determination by Louisiana that it no longer had exclusive jurisdiction or that Mississippi would be the more convenient forum, Mississippi’s jurisdiction depends on whether neither Caroline, nor her father, nor any person acting as a parent still lived in Louisiana at the time of modification. The chancellor specifically determined Rose and Caroline actually moved to Mississippi. Because Upshaw was not awarded legal custody of Caroline, she was not “a person acting as a parent.” Therefore, under section 93-27-203(b), Mississippi obtained jurisdiction to modify the Louisiana order.


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