Joel William Hasse, Jr. v. Barbara Anne Hasse Shane

IN THE SUPREME COURT OF MISSISSIPPI
NO. 96-CA-01143-SCT
JOEL WILLIAM HASSE, JR.
v.
BARBARA ANNE HASSE SHANE
DATE OF JUDGMENT: 08/23/96
TRIAL JUDGE: HON. PAT H. WATTS, JR.
COURT FROM WHICH APPEALED: JACKSON COUNTY CHANCERY COURT
ATTORNEY FOR APPELLANT: G. CHARLES BORDIS, IV
ATTORNEY FOR APPELLEE: WILLIAM T. REED
NATURE OF THE CASE: CIVIL - CUSTODY
DISPOSITION: REVERSED AND REMANDED - 7/23/98
MOTION FOR REHEARING FILED:
MANDATE ISSUED: 8/17/98
BEFORE SULLIVAN, P.J., BANKS AND MILLS, JJ.
MILLS, JUSTICE, FOR THE COURT:
STATEMENT OF THE CASE
¶1. Joel and Barbara Hasse received a final judgement of divorce in the chancery court of Jackson
County on February 7, 1995. Their child custody and visitation agreement reads in part as follows:
Husband and Wife agree that both parties are fit and proper persons and shall have joint care,
custody and control of the two (2) aforesaid minor children of the parties, Mason Daniel Hasse
and Stephanie Anne Hasse.
Husband and Wife are on active duty in the United States Navy. Accordingly, custody of the
minor children shall be arranged as follows: The parent having orders to shore duty will have
paramount custody and control during the period of said orders. The parent having sea duty
orders will be allowed to exercise reasonable visitation with the children at his or her own
expense, as and when practical, upon twenty-four (24) hours notice.
¶2. At the time of divorce, Barbara had shore duty orders and Joel had sea duty orders. Accordingly,
Barbara retained custody of Mason and Stephanie, ages six and two years old respectively. Barbara
thereafter separated herself from the Navy in August 1995 and moved to Maryland. The children
joined her in October, 1995 after she obtained an apartment. Mason was enrolled in the Maryland
school system shortly after moving to Maryland.
¶3. Joel returned with shore leave to Mississippi in April, 1996. Barbara refused, however, to
relinquish custody of the children. In response, he filed a complaint for contempt, modification or
other relief on April 16, 1996. Barbara responded to Joel's complaint by filing a motion to dismiss for
lack of jurisdiction on May 10, 1996.
¶4. Subsequent to filing her motion, Barbara voluntarily relinquished custody of the children to Joel
and began paying child support. While in Joel's custody, the children resided at their home of several
years prior to the divorce, were enrolled in St. Martin Elementary School in Ocean Springs, and
began to receive medical treatment at Keesler Air Force Base.
¶5. On August 22, 1996, the chancellor found that it would not be in the best interest of the children
to exercise jurisdiction in Mississippi, and granted Barbara's motion to dismiss. The chancellor then
ordered Joel, who was on shore duty, to return the children to Barbara until final order from the
Maryland courts. As of the date of this appeal, the children remain in Barbara's custody. Neither party
has commenced legal proceedings in Maryland.
DISCUSSION
I. WHETHER THE CHANCELLOR COMMITTED REVERSIBLE ERROR IN GRANTING
BARBARA'S MOTION TO DISMISS.
¶6. Application of the Uniform Child Custody Jurisdiction Act involves a three step process. First,
the court must determine if it has authority or jurisdiction to act according to the guidelines set forth
in Miss. Code Ann. § 93-23-5(1994). If the court determines that it does have authority over the
action, it must follow the guidelines of Miss. Code Ann. § 93-23-13 (1994) to determine if it is the
most appropriate and convenient forum. If jurisdiction is accepted, the court must determine if other
state court judgments preclude the exercise of jurisdiction. Stowers v. Humphrey, 576 So. 2d 138,
140 (Miss.1991).
¶7. The parties to this proceeding agree that the lower court had continuing jurisdiction to modify its
original custody decree in this case separate and apart from Miss. Code Ann. § 93-23-5(1994). Jones
v. Starr, 586 So. 2d 788, 790 (Miss.1991). Thus, our focus appropriately shifts to the second step of
the three step process. Miss.Code Ann. § 93-23-13 (1994) outlines the test for the most convenient
forum under the UCCJA. It provides:
(1) A court which has jurisdiction under this chapter to make an initial or modification decree
may decline to exercise its jurisdiction any time before making a decree if it finds that it is an
inconvenient forum to make a custody determination under the circumstances of the case and
that a court of another state is a more appropriate forum.
(2)A finding of inconvenient forum may be made upon the court's own motion or upon motion
of a party or a guardian ad litem or other representative of the child.
(3) In determining if it is an inconvenient forum, the court shall consider if it is in the interest of
the child that another state assume jurisdiction. For this purpose it may take into account the
following factors, among others:
(a) If another state is or recently was the child's home state;
(b) If another state has a closer connection with the child and his family or with the child and
one or more of the contestants;
(c) If substantial evidence concerning the child's present or future care, protection, training and
personal relationships is more readily available in another state;
(d) If the parties have agreed on another forum which is no less appropriate; and
(e) If the exercise of jurisdiction by a court of this state would contravene any of the provisions
of this chapter.
Miss. Code Ann. § 93-23-13(1), (2), & (3) (1994) (emphasis added).
¶8. At the time of the jurisdictional hearing, Joel was on shore leave. The children were lawfully
residing with him in their Ocean Springs home of four years. They were enrolled in school, attending
church, and receiving medical treatment, all in Ocean Springs. These factors were considered by the
lower court, as well they should have been. However, the all encompassing "among others" factors of
Miss. Code Ann. § 93-23-13(3)(1994) appear to not have been fully developed. We find them to be
determinative.
¶9. The lower court awarded Barbara immediate custody of the children without affording Joel the
opportunity to present testimony relating to the living arrangements of the children, parenting abilities
of the parties, educational opportunities available to the children, or the quality of relationships
sustained by the children. These factors, along with countless others that are necessarily case specific,
are relevant when determining the most appropriate home for the children. See Albright v. Albright,
437 So. 2d 1003, 1005 (Miss.1983). The chancellor unfortunately ignored these factors, reasoning
that he was not exercising full jurisdiction, but was only awarding custody until a Maryland court
entered the modified final decree. This rationale is incorrect.
¶10. The simple fact is that Barbara is the parent who frustrated the original decree by separating
herself from the Navy and moving the children to Maryland. Joel has remained in compliance. We
cannot in good conscience allow her unilateral action to be used as a valid justification for declining
the exercise of jurisdiction in Mississippi. It occurs to us that the entire spirit of the original decree
was to ensure that the children would remain in their stable environment on the Mississippi Gulf
Coast, no matter which parent was on shore leave at the time. Barbara violated that spirit when she
uprooted the children from their Mississippi home and transplanted them into a new, unfamiliar
domicile in Maryland. Her violation cannot be overlooked in the name of convenience.
¶11. Accordingly, we find the chancellor manifestly abused his discretion by refusing to exercise
jurisdiction. This case is remanded for a full hearing on the appellant's petition for contempt and
modification of the original decree.
¶12. REVERSED AND REMANDED.
PRATHER, C.J., SULLIVAN, P.J., ROBERTS AND SMITH, JJ., CONCUR. PITTMAN,
P.J., AND WALLER, J., CONCUR IN RESULT ONLY. BANKS, J., CONCURS WITH
SEPARATE WRITTEN OPINION JOINED BY PITTMAN, P.J. AND WALLER, J. McRAE,
J., SPECIALLY CONCURS WITH SEPARATE WRITTEN OPINION JOINED IN PART
BY BANKS AND WALLER, JJ.
BANKS, JUSTICE, CONCURRING:
¶13. I concur with the result reached by the majority but I do not reach that result based upon some
supposed wrong done by Mrs. Shane in relocating her residence to Maryland. As a purely practical
and legal matter, however, the chancellor should have resolved the custody and visitation issue
presented by the original decree as applied to markedly changed circumstances. The children were
here. Mr. Hasse had a valid, even if flawed, decree issued by the same chancery court giving him
custody of the children at the time of the hearing. There was not, in my view, such an emergency as
would require the chancellor to change the status quo in one breath and decline jurisdiction to finally
resolve the matter in the next. There was nothing which in fact made Maryland a more convenient
forum for either the children or their parents.
PITTMAN, P.J., AND WALLER, J., JOIN THIS OPINION.
McRAE, JUSTICE, SPECIALLY CONCURRING:
¶14. I agree with the majority's decision that the chancellor erred in refusing to assume jurisdiction
over the case. The chancellor further erred in modifying the custody provisions of the decree after
declining jurisdiction over the case, in sending the children back to Maryland with their mother, and
in granting Hasse thirty days in which to file an action in Maryland, after which this action would be
dismissed. Since Shane voluntarily relinquished custody of the children to their father subsequent to
filing her motion to dismiss, the chancellor should have dismissed it as moot and ruled on the merits
of Hasse's motion for contempt. Instead, the children have been uprooted from their home in
Mississippi and, inevitably, will be uprooted again.
¶15. This Court has construed the Uniform Child Custody Jurisdiction Act as providing concurrent,
rather than mutually exclusive, jurisdiction between states when the initial divorce or custody decree
was issued in one state and the custodial parent and the children have moved to another state.
Johnson v. Ellis, 621 So. 2d 661, 665 (Miss. 1993). Where, as in the case sub judice, the chancery
court has continuing jurisdiction by virtue of having the original decree entered there or because it is
the children's "home state," the court may decline to continue to exercise that jurisdiction if another
forum is determined to be more convenient. Id. at 666-667; Jones v. Starr, 586 So. 2d 788, 790
(Miss. 1991). We will reverse the chancellor's findings only when they are manifestly wrong or clearly
erroneous.
¶16. In this case, the chancellor's finding that it was in the children's best interests to allow the
Maryland court rather than a Mississippi court to assume jurisdiction over the case was clearly
erroneous. The decree was entered in Jackson County. The children had lived in Maryland only for a
short time before the actions filed by their parents and then were returned by their mother to Jackson
County to the home where they had grown up as well as to schools, churches and doctors familiar to
them. They were living with their father in Mississippi at the time of these proceedings. By the
mother's own admission, the children have no ties to the State of Maryland. The chancellor
apparently failed to consider these factors in taking into account "[i]f substantial evidence concerning
the child's present or future care, protection, training and personal relationships is more readily
available in another state" pursuant to Miss. Code Ann. § 93-23-13(3)(c)(1994). See Siegel v.
Alexander, 477 So. 2d 1345, 1347 (Miss. 1985)(children's best interests were served by relinquishing
jurisdiction to Texas where children had resided for one year before action was filed and two years
prior to trial and practically all witnesses and evidence regarding their well-being was in Texas).
There simply is no evidence that the interests of the Hasse children better would be served by
relinquishing jurisdiction to the Maryland courts.
¶17. The chancellor clearly "missed the boat" in his ruling. He erred in declining to assume
jurisdiction in one paragraph of his order and, in another, modifying the custody provisions of the
original decree. The order created unnecessary upheaval for the children, clearly contrary to their best
interests. Further, in "granting" Hasse thirty days in which to file an action regarding support and
custody of the children in Maryland, where Shane admitted they had no contacts, the decision
subjected Hasse to the unnecessary expense of pursuing an action in a court which had every reason
to decline jurisdiction and created an additional delay in the determination of the children's custody
arrangements. The chancellor would have steered a better course had he dismissed the motion to
dismiss as moot and ruled on the merits of Hasse's petition to modify.
BANKS AND WALLER, JJ., JOIN THIS OPINION IN PART.