Johnson v. Ellis

621 So. 2d 661, 1993 WL 260793
CourtMississippi Supreme Court
DecidedJuly 15, 1993
Docket92-CA-492
StatusPublished
Cited by10 cases

This text of 621 So. 2d 661 (Johnson v. Ellis) is published on Counsel Stack Legal Research, covering Mississippi Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Johnson v. Ellis, 621 So. 2d 661, 1993 WL 260793 (Mich. 1993).

Opinion

621 So.2d 661 (1993)

Teresa M. Ellis JOHNSON,
v.
James C. ELLIS, III.

No. 92-CA-492.

Supreme Court of Mississippi.

July 15, 1993.

Lydia Quarles, McAlpin & Quarles, Starkville, for appellant.

Ben F. Hilbun, Jr., Starkville, for appellee.

Before ROY NOBLE LEE, P.J., and PITTMAN and ROBERTS, JJ.

ROBERTS, Justice, for the Court:

In February 1992, Teresa Ellis Johnson filed a complaint in the Oktibbeha County Chancery Court for modification of a child custody determination, part of a divorce decree rendered four years prior by the Chancery Court of Mississippi County, Arkansas. The complaint also sought an adjudication of contempt for delinquency in payment of child support. Johnson contended that jurisdiction was properly in the Oktibbeha court under the Uniform Child Custody Jurisdiction Act (UCCJA). The Chancellor held that Arkansas chancery court was the proper forum to hear the cause, and dismissed Johnson's complaint. Johnson appealed. Finding that the Chancellor did not err in declining jurisdiction, we affirm.

A

FACTS AND PROCEDURAL HISTORY

James Ellis and Teresa Ellis Johnson were married on June 6, 1969 in Blythville, Arkansas. Four children were born of this union, two of which are the subject of this litigation: Joy Ellis, age 10, and James Clinton "Jay" Ellis IV, age 8.

The couple separated in July 1987, and Teresa was granted a divorce on March 7, 1988 in the Chancery Court for the Chickasawba *662 District of Mississippi County, Arkansas. Teresa was awarded custody of Joy, then age 6, and Jay, then age 4. The decree provided for alternate weekend and holiday visitation rights by James. James was awarded custody of fifteen-year-old Tracy, with reasonable visitation rights by Teresa. The couple's oldest daughter was emancipated by marriage.

The decree also provided that James would pay $250.00 per month per child, a total of $500.00 monthly in child support. The monthly amount was subsequently reduced to $150.00 per child, a total of $300.00 per month.

Later that year, Teresa remarried and moved to Bowling Green, Ohio with her husband Dr. Gary Johnson.[1] James continued to live in Blythville, Arkansas, and a modification of the divorce decree allowed him holiday and summer visitation rights with Joy and Jay.

The Arkansas chancery court docket shows a steady stream of motions, hearings, and orders concerning the custody and care of the children, from three months after the divorce through October of 1991. James fell behind in his child support payments, owing amounts of up to $5500.00; judgments were entered against him by the chancery court in April 1989, April 1990, and January 1991.

Teresa and her family moved to Starkville, Mississippi in July 1991. On February 4, 1992, Teresa filed a complaint in the Oktibbeha County Chancery Court styled "Complaint for Modification of Child Custody Determination Pursuant to the Uniform Child Custody Jurisdiction Act and Complaint for Adjudication of Contempt." In the complaint, she alleged that "a material change of circumstances" had occurred, warranting a modification of James' visitation schedule with Joy and Jay. Specifically, she charged that the children had been subjected to improper sexual advances by their father during their visitation with him. The complaint alleged:

that this activity has recently been acknowledged by the children and confirmed by independent authority, and that during the most recent exercise of visitation by the defendant, over the Dr. Martin Luther King holiday in January 1992, both children were threatened and gripped with emotional, psychological and physical fear of imminent physical harm of the nature and kind previously experienced due to the fact that the defendant refused to allow the children to sleep in the home of their maternal grandmother, but demanding that they sleep in defendant's home, a place where they have indicated to plaintiff that they feel uncomfortable, thereby causing great distress to both children.

The complaint also charged that the living conditions at James' house were such that a modification of his visitation rights was warranted. Specifically, Teresa alleged that the house was "filthy," "filled with firearms" available to the children, "improperly supplied as to food and drink," and "frequented by individuals who allegedly personally indulge or participate" in drug trade. She also charged that the children were inadequately supervised during their visits, and that in their presence, James addressed their older sister (who lived with him) as "slut" and "whore," and physically abused her. The complaint further alleged that Joy and Jay were "materially affected behaviorally" by visits with their father, as manifested by their "acting out" upon their return. Teresa charged that James' inappropriate activity was caused by "physical, mental, and emotional trauma"; that he had sustained petit, grand mal, and psychomotor seizures, and that he had been diagnosed with epilepsy. She alleged that surgery and medication were ineffective in controlling the psychomotor seizures, which caused sexually aberrant and inappropriate behavior, sometimes directed at the children. Finally, Teresa alleged that due to the seizures, James lacked any memory of his behavior, and was not capable of dealing with the *663 issue of abuse. Teresa requested that the court modify James' visitation rights, such that supervised visits with the children would occur in her home, one weekend every three months. She also requested that the court order James to submit to psychological evaluation. Teresa claimed that the Oktibbeha County Chancery Court could assume jurisdiction of this custody matter under the Uniform Child Custody Jurisdiction Act (UCCJA), Miss. Code Ann. (1972) § 93-23-1, et seq. (Supp. 1992).

The second count of Teresa's complaint alleged that James owed $4,766.21 in child support, requested that the court adjudicate a delinquency in that amount, and further requested that the court require a bond or other security to guarantee payment for two years. Attorney's fees and costs were also requested. Jurisdiction over this matter was alleged to be proper under the Uniform Reciprocal Enforcement of Support Law, Miss. Code Ann. § 93-11-1, et seq.[2]

James filed a motion to dismiss under M.R.C.P. Rule 12(b)(1) and (6). The motion noted the continuing litigation over the welfare, custody and maintenance of the children in the Arkansas chancery court, and alleged that the Oktibbeha court did not have proper jurisdiction, because the Arkansas court was "a court of competent and continuing jurisdiction over the parties and subject matter of these proceedings." In a memorandum in support of his motion to dismiss, James charged that Teresa was "forum shopping," or trying to bring him to an inconvenient forum away from witnesses on his behalf.

A hearing on James' motion to dismiss was held in the Oktibbeha Chancery Court. The motion was granted by order dated May 4, 1992, which stated in part:

At the request of the Defendant, the Court conferred with the Honorable Howard Templeton, Chancellor in Jonesboro, Arkansas, and after conferring with Chancellor Templeton, it was the finding of the Court, reinforced by his conversation with Judge Templeton, that all the factual allegations which occurred herein occurred in the State of Arkansas and the Court was of the opinion that the Court of Mississippi County, Arkansas would be the proper forum for the trial of this matter.

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Bluebook (online)
621 So. 2d 661, 1993 WL 260793, Counsel Stack Legal Research, https://law.counselstack.com/opinion/johnson-v-ellis-miss-1993.