COURT FROM WHICH APPEALED: ALCORN COUNTY CHANCERY COURT. DATE OF JUDGMENT: 12/21/2012. TRIAL JUDGE: HON. JACQUELINE ESTES MASK. TRIAL COURT DETERMINED FOREIGN COURT HAD JURISDICTION OVER CUSTODY AND VISITATION CLAIMS.
FOR APPELLANT: AMERY WRIGHT EWING.
FOR APPELLEE: CINDY TERESA HERSEY GRATTON (Pro se).
BEFORE LEE, C.J., ROBERTS AND CARLTON, JJ. IRVING AND GRIFFIS, P.JJ., ISHEE, ROBERTS, CARLTON, MAXWELL AND FAIR, JJ., CONCUR. BARNES, J., CONCURS IN RESULT ONLY. JAMES, J., NOT PARTICIPATING.
NATURE OF THE CASE: CIVIL - CUSTODY
¶1. This case concerns whether a chancery court erred in finding a Canadian court had jurisdiction over a child-custody matter.
FACTS AND PROCEDURAL HISTORY
¶2. John Oliver Hersey and Cindy Teresa Hersey Gratton filed for divorce in the Alcorn County Chancery Court in October 2010. The chancellor, Judge Jacqueline Mask, granted a divorce by order entered December 14, 2010. The parties were awarded joint legal and joint physical custody of the children, with Gratton to have primary care, custody, and control of the children while in Canada. Gratton subsequently moved to Chatham, Ontario, Canada, with the couple's two minor children. The record indicates this move was to be temporary. On March 22, 2011, Gratton filed a motion in the Ontario Court of Justice to change Hersey's visitation as set by Judge Mask.
¶3. Shortly after Gratton filed her motion in the Ontario Court of Justice, Hersey filed a motion in the Alcorn County Chancery Court for contempt and modification of child custody. Hersey alleged Gratton had denied him visitation with the minor children. On May 24, 2011, an agreed order was entered in which the parties were to have joint legal custody of the children, regardless of the children's location. Gratton also admitted she was in contempt by refusing to allow Hersey visitation with the children.
¶4. On December 1, 2011, Gratton filed a motion in the Superior Court of Justice, also in Ontario. In this motion, Gratton requested a custody modification and that Hersey's visitation scheduled be modified. There was some indication that Gratton was unable to return to the United States. As a result, Hersey filed another motion in the Alcorn County Chancery Court requesting immediate return of the children to the United States as well as a custody modification. Hersey also asked the chancellor to hold Gratton in contempt.
¶5. After a hearing on February 22, 2012, at which neither Gratton nor her attorney appeared, Judge Mask found Gratton to be in contempt and ordered Gratton to pay Hersey's attorney's fees. Judge Mask granted Hersey temporary physical custody of the children until a hearing scheduled for June 5, 2012. Judge Mask appointed a guardian ad litem (GAL) to represent the children's interests. The hearing scheduled for June 5 was continued until August 17, 2012, at which time a telephonic ...