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ROGER A. WALTERS v. LOLA WALTERS

JANUARY 27, 1988

ROGER A. WALTERS
v.
LOLA WALTERS



BEFORE ROY NOBLE LEE, C.J., PRATHER AND ZUCCARO, JJ.

ZUCCARO, JUSTICE, FOR THE COURT:

Lola Walters filed a complaint in the Chancery Court of Copiah County, seeking custody of her two (2) minor children. The trial court granted her custody, and her estranged husband appeals.

Roger and Lola Walters were married in Montana on April 13, 1981. Thereafter, the couple continued to live in Montana. Two (2) children were born to the marriage: David, born April 3, 1983; and Dian, born February 28, 1984. Roger and Lola began having marital difficulties; according to Lola's testimony, Roger pushed her, sat on her, and threatened her, but never struck her. On March 9, 1985, Lola and the two (2) children left the family's home in Billings, Montana and took up residence at the Battered Women's Shelter in that town. One week later Lola and the children went to live with Lola's mother in Copiah County, Mississippi. On

 March 28, 1985, Roger filed a complaint for divorce in Yellowstone County, Montana. In that complaint he sought permanent custody of both children. The next day, March 29, 1985, Lola filed a complaint for child custody in the Chancery Court of Copiah County, Mississippi. Finding that it had jurisdiction of the parties and the subject matter, the Copiah County Chancery Court conducted a hearing. Although Roger did not attend the hearing, he was represented by counsel, who claimed in the trial court, as he does on appeal, that pursuant to the Uniform Child Custody Jurisdiction Act, the Copiah County Chancery Court lacked jurisdiction to decide the custody dispute. From the trial court's ruling Roger appeals, assigning five (5) errors of which only two (2) merit our discussion.

 I. DOES THE UCCJA APPLY TO THIS ACTION EVEN THROUGH THE ACTION WAS BROUGHT UNDER MISS. CODE ANN. 93-11-65 (SUPP. 1985)?

 Lola stated in her complaint that she sought custody pursuant to 93-11-65. That section was in effect prior to Mississippi's adoption of the UCCJA; it provides for chancery jurisdiction in child custody cases in addition to the jurisdictional vehicles afforded by 1) 93-5-23 (divorce action), 2) the writ of habeas corpus, and 3) "other existing remedies." Roger moved to dismiss Lola's complaint on the ground that, pursuant to the UCCJA, the Copiah County Chancery Court did not have jurisdiction. The trial court ruled that Lola's action for child custody "[was] filed under Miss. Code Ann. 93-11-65 and therefore was not governed by the provisions of the Uniform Child Custody Jurisdiction Act, found at Miss. Code Ann. 93-23-1 et seq." Based on this holding that the UCCJA was inapplicable, the trial court denied Roger's motion to dismiss.

 On appeal Roger asserts that the trial court erred in holding the UCCJA inapplicable. He argues that 93-11-65 was intended to create a cause of action for child custody in a situation where there is no divorce or habeas corpus action, rather than to govern interstate battles over jurisdiction in child custody cases.

 Regarding this matter, in Owens, By and Through Mosley v. Huffman, 481 So.2d 231, 245 (Miss. 1985), this Court cited with approval a California court's decision that the exclusive method of determining subject matter jurisdiction in child custody cases is the UCCJA, which supercedes any contrary decisional and statutory law.

 The sound reasoning behind the rule established in

 Huffman, supra, is that it would be absurd to allow contestants in custody disputes to avoid the provisions of the UCCJA where applicable, as in the present case, simply by citing a different statute. The trial court erred in holding the UCCJA inapplicable.

 II. DID THE TRIAL COURT LACK SUBJECT MATTER JURISDICTION?

 Having, as above, determined that the UCCJA is applicable in the instant case, we next turn our attention to the subject matter jurisdiction of the lower court, which must be determined pursuant to the following UCCJA provisions:

 (1) A court of this state which is competent to decide child custody matters has jurisdiction to make a child custody determination by initial or modification decree if:

 (a) This state (i) is the home of the child at the time of commencement of the proceeding, or (ii) had been the child's home state within six (6) months before commencement of the proceeding and the child is absent from this state because of his removal or retention by a person claiming his custody or for other ...


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