Clifton v. Shannon
| Docket Number: | 2011-CA-00037-COA | |
| Court of Appeals: |
Opinion Link Opinion Date: 06-26-2012 Opinion Author: Fair, J. Holding: Affirmed in part, reversed and remanded in part. |
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| Additional Case Information: |
Topic: Child custody - Jurisdiction - Uniform Child Custody Jurisdiction and Enforcement Act - Modification of custody - Material change in circumstances - Albright analysis - Attorney's fees Judge(s) Concurring: Ishee, Roberts, Maxwell and Russell, JJ. Concur in Part, Dissent in Part 1: Lee, C.J. Concur in Part, Dissent in Part Joined By 1: Carlton, J. Nature of the Case: CIVIL - CUSTODY |
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| Trial Court: |
Date of Trial Judgment: 01-14-2011 Appealed from: DeSoto County Chancery Court Judge: HON. VICKI B. COBB Disposition: PHYSICAL CUSTODY OF MINOR CHILD MODIFIED AND AWARDED TO APPELLEE Case Number: 99-2-275 |
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| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | Dawn Smith Shannon Clifton |
MITZI CONAR JOHNSON |
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| Appellee: | Thomas R. Shannon | JOHN THOMAS LAMAR JR. | ||
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 - Uniform Child Custody Jurisdiction and Enforcement Act - Modification of custody - Material change in circumstances - Albright analysis - Attorney's fees |
| Summary of the Facts: | Thomas Shannon and Dawn Clifton were divorced in 1999. Dawn was awarded custody of their daughter. Both parents were given joint legal custody, and Thomas was awarded reasonable visitation. Dawn moved to Colorado in December 2005, and shortly thereafter remarried. Thomas also remarried and remains in DeSoto County. In 2006, Thomas’s visitation schedule was modified by agreement, as it was impractical due to the travel distance between the parties. Thomas filed a petition for contempt and modification of custody in 2010, and the daughter joined in the petition. He claimed that a material change in circumstances adversely affecting the child had occurred. Dawn objected to the chancery court’s jurisdiction. The chancellor, retaining jurisdiction over issues of custody, awarded Thomas temporary custody. Five months later, the chancellor entered a judgment awarding “primary physical custody” to Thomas, determining that it was “in the best interest of the minor child . . . .” The decision to modify custody was based in major part on the daughter’s testimony and expressed preference to reside with her father. Dawn appeals. |
| Summary of Opinion Analysis: | Issue 1: Jurisdiction Dawn argues that because the chancery court did not have continuing exclusive jurisdiction, Thomas’s petition should have been dismissed under the Uniform Child Custody Jurisdiction and Enforcement Act. She claims that because Colorado has been the daughter’s home for four and a half years, there are no significant connections to Mississippi that warrant the exercise of jurisdiction over the custody-modification matter. A court issuing an initial determination has continuing jurisdiction over the parties; no other court may modify the decree. However, even if only one party remains in the state, a second state may modify the order if the issuing court finds that neither the child, nor the child and one parent, have a significant connection with the state, and that substantial evidence is no longer available in the issuing state. Only the issuing state may make this determination. In this case, there was sufficient evidence that the daughter still maintained a significant connection to Mississippi because her father and extended family reside here. The DeSoto County Chancery Court was the court of original jurisdiction. Nothing in the record suggests that the chancellor erred in retaining jurisdiction. In fact, the Colorado court, where Dawn filed another custody action, had declined jurisdiction on the emergency relief that was requested and did not assume jurisdiction. Dawn also argues that Mississippi is an inconvenient forum, as the overwhelming abundance of substantial evidence and witnesses with regard to the child’s home life are located in Colorado. While Colorado may have been a more convenient forum for Dawn, the chancery court is endowed with the discretion to make that decision. Prior custody proceedings conducted in Mississippi, and the daughter spent several weeks in Mississippi during the year visiting her father and family. Thus, Mississippi was an appropriate forum. Issue 2: Modification of custody To order a change in custody, the chancellor was first required to find a material change of circumstances and then to undertake an Albright analysis to determine the child’s best interests. The chancellor failed to follow this controlling authority, as she did not make specific findings of fact regarding a material change in circumstances or the Albright factors. Thus, the case must be remanded for the chancellor to make such findings and hold such hearings as may be necessary in light of the time that has passed since custody of the child was changed. Issue 3: Attorney’s fees Dawn argues that she should be awarded attorney’s fees on appeal. Attorney’s fees are not normally awarded in child custody modification actions. Since attorney’s fees were not awarded by the chancellor, they will not be awarded on appeal. |
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