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MELINDA S. ALLEN CARPENTER v. EDWARD E. ALLEN

MARCH 15, 1989

MELINDA S. ALLEN CARPENTER
v.
EDWARD E. ALLEN



EN BANC

ROBERTSON, JUSTICE, FOR THE COURT:

I.

The dispositive issue in this case arises by reason of the Uniform Child Custody Jurisdiction Act and transfer thereunder of an Ohio child custody matter to a chancery court in this state. The defendant father, though subject to in

 personam jurisdiction in Ohio, has no minimum contacts with Mississippi and objected, when sued regarding his child support obligations, to in personam jurisdiction in this state. The Chancery Court agreed and granted his motion to dismiss. Writing a variation on a theme by Kulko, we affirm.

 II.

 Melinda S. Allen Carpenter (Carpenter), formerly Melinda S. Allen, is an adult resident citizen of Rankin County, Mississippi. Carpenter was the plaintiff below and is the appellant here. Edward E. Allen (Allen) is an adult resident citizen of Fairhope, Alabama. Allen was the defendant below and is the appellee here.

 Carpenter and Allen were formerly married to each other and lived in the state of Ohio. One child was born to the marriage, Diane M. Allen, whose date of birth is July 17, 1971. On November 29, 1974, the parties were divorced by a judgment of the Court of Common Pleas, Franklin County, Ohio. That judgment of divorce placed custody of the child, Diane, with Carpenter and ordered that Allen pay child support in the amount of $25.00 per week.

 Carpenter has since remarried and has moved to Rankin County, Mississippi, where she lives with her new husband and, as well, the child, Diane, who is now seventeen years of age.

 Carpenter suggests that Allen has fallen into arrears in his child support obligations. On September 2, 1986, she procured a judgment of the Court of Common Pleas, Franklin County, Ohio, transferring jurisdiction over this case to the Chancery Court of Rankin County, Mississippi, and on October 6, 1986, the Chancery Court entered its judgment accepting jurisdiction, *fn1 all in accordance with the Uniform Child Custody Jurisdiction Act (U.C.C.J.A.), *fn2 Miss. Code Ann. 93-23-1, et seq. (Supp. 1988).

 On January 8, 1987, Carpenter commenced the present proceedings by filing in the Chancery Court of Rankin County a complaint to modify judgment of divorce and for contempt citation. In her complaint, Carpenter sought an order increasing Allen's child support obligations to $200.00 per month - approximately double its present level, and that, in addition, Allen pay Diane's college tuition expenses. In addition, by reason of an alleged $325.00 arrearage, Carpenter demanded a monetary judgment against Allen and an order that he be adjudged in contempt and imprisoned until he purge himself of his contempt.

 In due course, Allen moved to dismiss, see Rule 12 (b)(2),

 Miss.R.Civ.P., arguing that he could not be subjected to in personam jurisdiction in the state of Mississippi consistent with the Due Process Clause of the Fourteenth Amendment to the Constitution of the United States. On March 13, 1987, the Chancery Court entered its order granting the motion and dismissed Carpenter's complaint" for lack of personal jurisdiction over the defendant. "This appeal has followed.

 III.

 We have accepted our obligation to respect and enforce a non-resident father's federal due process rights, see Kulko v. Superior Court, 436 U.S. 84, 98 S. Ct. 1690, 56 L.Ed.2d 132 (1978), when he is sued in this state regarding his child support obligations. Noble v. Noble, 502 So. 2d 317, 319-20 (Miss. 1987). In Noble the defendant father had claimed Mississippi as his domicile from 1956 until he retired from the Armed Forces in 1984 and moved to South Carolina. On those facts Noble quite correctly held the father constitutionally amenable to suit in Mississippi.

 There is nothing in the brief record before us that suggests that Edward E. Allen has ever so much as set foot in the State of Mississippi. It may not fairly be said from this record that Allen has purposefully availed himself of the benefits of the laws of the state of Mississippi or that he derives personal or commercial benefit from his daughter's presence in Mississippi. Ordinarily where such is the case, we would be content to cite Kulko and affirm, for the fact that Mississippi has such contacts with the matter that its substantive law should apply to Carpenter's child support modification action does not ...


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