BEFORE ROY NOBLE LEE, ROBERTSON and PITTMAN
ROY NOBLE LEE, CHIEF JUSTICE, FOR THE COURT:
Steve Fulgham filed suit in the Circuit Court of Lowndes County, Mississippi, against Marcus Skipper, Susan Skipper, his wife, and Mary Emma Snell for actual and punitive damages, charging that his damages resulted from the kidnapping of his minor child, Christopher Joe Fulgham, by the Skippers and Snell. Default judgment was entered against Mary Emma Snell and Fulgham was awarded $150,000 against her. The action against the Skippers was dismissed under MRCP 13 (a) on the ground that Fulgham's action should have been brought on a compulsory counterclaim in an earlier suit wherein the Skippers sought to terminate Fulgham's parental rights to Christopher Joe Fulgham and to adopt the child. Fulgham has appealed from that judgment.
Appellant is the father of Christopher Joe Fulgham, a minor child. The child's mother died in a trailer fire in Lowndes County, Mississippi, in 1980 and the child was left with the appellant. Mary Emma Snell, a maternal grandparent of the child, requested appellant to permit the child to visit her in Columbus, Mississippi, and the request was granted. However,
Mary Emma Snell refused to return the child, claiming that appellant had been physically abusing him. Appellant instituted a habeas corpus suit in the Chancery Court of Lowndes County for custody of his child. Without the knowledge or consent of appellant, and while the habeas suit was pending, Snell notified Marcus E. Skipper, maternal grandfather and her former husband, to come to Mississippi and take the child to Arizona. Skipper and his present wife, Susan Skipper, moved the child to Arizona without the knowledge or consent of appellant. In Arizona, they instituted adoption proceedings and, apparently, perpetrating a fraud upon the Arizona Court, adopted the child, again without the knowledge or consent of appellant. *fn1
Appellant discovered the adoption in Arizona and filed an action to set it aside. The Arizona court granted the relief asked, placed the child in the custody of a juvenile agency, stayed further proceedings in Arizona, and directed the Skippers to commence termination of parental rights and adoption proceedings in Mississippi.
The Skippers filed suit on August 19, 1987, in the Chancery Court of Webster County, to terminate appellant's parental rights, which action was transferred to Choctaw County. The Skippers contended that appellant had abandoned the child. The chancery court entered a final decree in favor of appellant and dismissed the Skippers' suit.
The Skippers appealed the chancery court judgment to this Court. *fn2 Following appeal, appellant filed suit in the Circuit Court of Lowndes County, Mississippi, against Snell and the Skippers for actual and punitive damages. The lower court dismissed the action against the Skippers on the ground that appellant was barred from asserting a claim under MRCP 13 (a), which required him to file a compulsory counterclaim in the termination proceeding in the Chancery Court of Choctaw County. As stated, default judgment was entered against Mary Emma Snell in the sum of $150,000, the court finding that Mary Emma Snell had kidnapped Christopher Joe and that her actions in taking the child by trickery and intentional deceit were so" wanton, fradulent [sic] and willful [that] the Plaintiff, STEVE FULGHAM, should be awarded punitive damages. "
The sole issue on this appeal is whether or not the lower court erred in dismissing the suit against Marcus Edward Skipper and Susan Skipper under MRCP 13 (a).
The Skippers' motion in the trial court asserted that the action should be dismissed because it was a compulsory
counterclaim which should have been stated in the prior action between the Skippers and Fulgham. They contended that the counterclaim was compulsory because there was a logical relation between the claim and the counterclaim. MRCP 13 (a), under which the dismissal was granted, follows:
(a) Compulsory Counterclaims. A pleading shall state as a counterclaim any claim which at the time of serving the pleading the pleader has against any opposing party if it arises out of the transaction or occurrence that is the subject matter of the opposing party's claim and does not require for its adjudication the presence of third parties over ...