Clifton v. Shannon

93 So. 3d 70, 2012 WL 2389454, 2012 Miss. App. LEXIS 397
CourtCourt of Appeals of Mississippi
DecidedJune 26, 2012
DocketNo. 2011-CA-00037-COA
StatusPublished
Cited by10 cases

This text of 93 So. 3d 70 (Clifton v. Shannon) is published on Counsel Stack Legal Research, covering Court of Appeals of Mississippi primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Clifton v. Shannon, 93 So. 3d 70, 2012 WL 2389454, 2012 Miss. App. LEXIS 397 (Mich. Ct. App. 2012).

Opinions

FAIR, J.,

for the Court:

¶ 1. Dawn Clifton appeals a judgment transferring physical custody of her daughter to Thomas Shannon, her father. Because the chancellor failed to make findings of fact required for a proper determination of custody, we reverse and remand the chancery court’s judgment.

FACTS

¶ 2. Thomas and Dawn were divorced in DeSoto County, Mississippi, in 1999. Dawn was awarded custody of their daughter Ashley who was born on May 16, 1996. Both parents were given joint legal custody, and Thomas was awarded reasonable visitation.

¶ 3. 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 Ashley 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.

¶ 4. Because Ashley’s school year would begin in August, an emergency hearing was held in July to address the issue of temporary custody. Meeting with the chancellor in camera, Ashley described her experiences in the homes of both parents and expressed her preference to reside in her father’s home in Mississippi. The chancellor, retaining jurisdiction over is[72]*72sues of custody, awarded Thomas temporary custody in August. 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 Ashley’s testimony and expressed preference to reside with her father. The chancellor noted Ashley’s participation in extra-curricular activities in Mississippi, church involvement in Mississippi, and the fact that she “is well-adjusted with her step-mother and step-sister” in Mississippi. The chancellor also explained that Ashley “does not desire to reside with her [mother] and feels more comfortable living with her father, as opposed to her mother, her mother’s current husband, and her mother’s new child.”

¶ 5. Dawn now appeals questioning the court’s jurisdiction, asserting that the evidence was insufficient to support a modification of custody, and seeking attorney’s fees for this appeal. We affirm the chancery court’s jurisdiction and find an award of attorneys fees unsupported. However, finding that the chancellor failed to make findings of fact and conclusions of law as required in a custody modification case by the Supreme Court of Mississippi, we reverse and remand for further proceedings and compliance with the mandates of the supreme court.

DISCUSSION

1. Jurisdiction

¶ 6. Dawn argues that because the chancery court did not have continuing exclusive jurisdiction, Thomas’s petition should have been dismissed. She cites the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), codified in Mississippi Code Annotated sections 93-27-101 to 402 (Rev.2004 & Supp.2010), to support her argument that jurisdiction should have been in Colorado. She claims that because Colorado has been Ashley’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.

¶ 7. “Whether a court had jurisdiction under the UCCJEA to hear a child-custody dispute is a question of law, which we review de novo.” Miller v. Mills, 64 So.3d 1023, 1026 (¶ 11) (Miss.Ct.App.2011) (citing Yeager v. Kittrell, 35 So.3d 1221, 1223 (¶¶ 12, 14) (Miss.Ct.App.2009)). However, the factual findings underpinning the jurisdiction question are reviewed under the familiar substantial evidence and abuse of discretion standard. See White v. White, 26 So.3d 342, 346-48 (¶¶ 10, 14) (Miss.2010).

¶ 8. In Yeager, this Court stated “[a] court issuing an initial determination has continuing jurisdiction over the parties; no other court may modify the decree.” Yeager, 35 So.3d at 1224 (¶ 16) (citing Miss.Code Ann. § 93-27-201 (Supp.2009)).

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 pai'ent, 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.

Id. (internal citation omitted).

¶ 9. There was sufficient evidence that Ashley still maintained a significant connection to Mississippi because her father and extended family reside here. In a recent opinion addressing a chancery court’s jurisdiction over a proceeding for modification of custody, the Mississippi Supreme Court held that since the father had continuously resided in Mississippi:

[73]*73[I]t was within the chancellor’s discretion to determine that both the child and [the father] had a “significant connection with this state.” Therefore, the chancery court properly has retained continuous, exclusive jurisdiction over [the] matter....

White v. White, 26 So.3d 342, 347-48 (¶ 14) (Miss.2010).

¶ 10. 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.

¶ 11. Dawn further contends 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. She cites Mississippi Code Annotated section 93-27-207, which states in pertinent part:

(1) A court of this state which has jurisdiction under this chapter to make a child custody determination may decline to exercise its jurisdiction at any time if it determines that it is an inconvenient forum under the circumstances and that a court of another state is a more appropriate forum. The issue of inconvenient forum may be raised upon motion of a party, the court’s own motion, or request of another court.
(2) Before determining whether it is an inconvenient forum, a court of this state shall consider whether it is appropriate for a court of another state to exercise jurisdiction. For this purpose, the court shall allow the parties to submit information and shall consider all relevant factors, including:
(a) Whether domestic violence has occurred and is likely to continue in the future and which state could best protect the parties and the child;
(b) The length of time the child has resided outside this state;
(c) The distance between the court in this state and the court in the state that would assume jurisdiction;
(d) The relative financial circumstances of the parties;

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Cite This Page — Counsel Stack

Bluebook (online)
93 So. 3d 70, 2012 WL 2389454, 2012 Miss. App. LEXIS 397, Counsel Stack Legal Research, https://law.counselstack.com/opinion/clifton-v-shannon-missctapp-2012.