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Abercrombie v. Abercrombie

Court of Appeals of Mississippi

August 20, 2019

FAITH ABERCROMBIE APPELLANT
v.
JONATHAN ABERCROMBIE APPELLEE

          DATE OF JUDGMENT: 07/26/2017

          LAMAR COUNTY CHANCERY COURT HON. M. RONALD DOLEAC COURT TRIAL JUDGE.

          ATTORNEY FOR APPELLANT: DIANNE HERMAN ELLIS

          ATTORNEYS FOR APPELLEE: CHASE FORD MORGAN ANDREW ARMAN MIRI

         EN BANC.

          J. WILSON, P.J.

         ¶1. Faith Abercrombie appeals from an order of the Lamar County Chancery Court that denied her motion to set aside a prior judgment establishing custody of and visitation with Faith's son, Reed.[1] Faith argues that the chancery court's judgment and subsequent orders are void because the court lacked jurisdiction to make an initial custody determination under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). Miss. Code Ann. § 93-27-201 (Rev. 2013). She also challenges an award of attorney's fees to her ex-husband, Jonathan Abercrombie, and rulings related to Jonathan's child support payments.

         ¶2. While this appeal was pending, the chancellor was presented with evidence that Faith and Jonathan initially obtained custody of Reed by fraud. Reed's biological mother is a relative of Faith, but the identity of Reed's biological father has not been established. At Reed's birth, Jonathan falsely claimed to be Reed's biological father by signing Reed's birth certificate and an acknowledgment of paternity. Faith and Jonathan then raised Reed as their own, and Faith later adopted Reed in Louisiana, apparently with the consent of Reed's biological mother. The Abercrombies' adoption petition also falsely represented that Jonathan was Reed's biological father.

         ¶3. After the parties' fraud was revealed, the chancellor ordered them to appear at a hearing to show cause why they should not be held in civil contempt or subject to other sanctions. Jonathan appeared, but Faith did not. After the hearing, the chancellor vacated the parties' divorce judgment because it had been obtained by a fraud on the court. The chancellor also found both parties in contempt and ordered the Department of Child Protective Services (DCPS) to take custody of Reed. However, as far as this Court is aware, Reed remains in Faith's custody in Louisiana.

         ¶4. In this appeal, we conclude that the chancellor correctly denied Faith's motion to set aside the court's prior judgments and orders regarding custody and visitation. The chancery court's jurisdiction to make an initial custody determination was established in three prior judgments, including one that was affirmed on appeal and two that Faith did not appeal. Therefore, that issue is now res judicata. As to the remaining issues in this appeal, we hold that the award of attorney's fees must be vacated and may be reconsidered on remand, and we hold that Faith waived any issue with respect to child support by failing to designate an adequate record and by failing to appeal prior orders of the chancery court.

         FACTS AND PROCEDURAL HISTORY

         ¶5. In 2014, Jonathan filed a complaint for divorce in the Lamar County Chancery Court. He alleged that he had lived in Mississippi for more than six months prior to filing the complaint after he and Faith separated in Louisiana. Jonathan also alleged that Mississippi was Reed's home state under the UCCJEA. Reed was four years old at the time. Faith was personally served with a summons and a copy of the complaint, but she failed to enter an appearance or answer the complaint. In April 2015, the chancery court granted Jonathan a divorce on the ground of habitual cruel and inhuman treatment. As Jonathan's complaint had requested, the court awarded Faith physical custody of Reed and granted Jonathan visitation. The court also ordered Jonathan to pay child support of $280 per month.

         ¶6. Faith filed a timely pro se notice of appeal, which was her first appearance in the case. In her pro se appellate brief, Faith asserted that the chancery court lacked jurisdiction because Jonathan had not lived in Mississippi for six months prior to filing the complaint and because Louisiana was Reed's home state under the UCCJEA. She also claimed that Jonathan obtained the divorce by fraud. However, in June 2016, this Court affirmed the judgment of the chancery court because there was no evidence in the record to support the allegations in Faith's brief. Abercrombie v. Abercrombie, 193 So.3d 680, 683 (¶12) (Miss. Ct. App. 2016).

         ¶7. While her first appeal was pending, Faith filed a pro se "Motion for Relief from Judgment" in the chancery court. In her motion, Faith asserted that the chancery court's judgment should be set aside because the court lacked jurisdiction to determine custody or visitation and because Jonathan had obtained the divorce by fraud. In July 2016, Jonathan filed a complaint for contempt and modification of visitation. Faith, still proceeding pro se, filed an answer and a second motion for relief from the original judgment of divorce.

         ¶8. In August 2016, the chancellor entered an "Agreed Order/Final Judgment." In the judgment, the chancellor found that the chancery court had "jurisdiction over the parties and the subject matter" and denied Faith's motion for relief from the judgment. The chancellor also found that Jonathan's request for modification of visitation was "well taken," and the court's judgment established a new visitation schedule based on an agreement by the parties. The chancellor specifically noted that the judgment was a "Final Judgment" under Rule 54 of the Mississippi Rules of Civil Procedure.

         ¶9. In October 2016, Jonathan filed a new complaint for contempt and for modification of visitation. Faith was served with a summons and a copy of the complaint but failed to answer or appear at the subsequent hearing. On December 1, 2016, the chancellor entered an order finding that the court had continuing, exclusive jurisdiction over the parties and the subject matter. The chancellor also found that Faith was in contempt for refusing to comply with the visitation order and for failing to appear in court. The chancellor then awarded Jonathan $1, 047 in attorney's fees and costs and ordered that Faith should be incarcerated; however, the chancellor also ordered that Faith's incarceration would be stayed if she complied with the court's visitation order and paid Jonathan's attorney's fees and costs. The chancellor set the matter for review on January 17, 2017.

         ¶10. Both Jonathan and Faith appeared in court on January 17, 2017. Faith appeared pro se, while Jonathan was represented by counsel. Both parties testified under oath, and neither raised any objection to the court's jurisdiction. After the hearing, the chancellor entered an order finding that the court had exclusive, continuing jurisdiction over the parties and the subject matter. The chancellor lifted the stay of incarceration, and Faith was jailed for her contempt and continued refusal to allow Jonathan to exercise visitation. The chancellor also set a review hearing for January 30, 2017. On January 30, 2017, Faith and Jonathan again appeared in court, and the chancellor ordered that Faith should be released from jail.

         ¶11. On March 9, 2017, the chancellor entered an order on various issues. The chancellor found that the court had exclusive, continuing jurisdiction over the parties and the subject matter. The chancellor noted that both parties had given sworn testimony on January 30 and neither raised any objection to the court's jurisdiction. The chancellor explained that Faith and Jonathan had reached another agreement with respect to custody and visitation, which the chancellor approved. Faith would continue to have physical custody of Reed, the parties would have joint legal custody, and Jonathan would have specified visitation. The chancellor also ruled that any child support arrearage owed by Jonathan was "satisfied" and that Jonathan's obligation to pay child support was "suspend[ed]" due to Faith's refusal to allow him to exercise visitation. Finally, the chancellor reduced Jonathan's award of attorney's fees and costs to $345 payable in installments of $25 per month.

         ¶12. Faith subsequently hired a lawyer, and on April 14, 2017, she filed a "Motion to Dismiss and Set Aside for Lack of Jurisdiction." In her motion, Faith argued that all prior judgments and orders touching on Reed's custody and visitation were void because the chancery court never had jurisdiction to make an initial custody determination.

         ¶13. The chancellor denied Faith's motion after concluding that her arguments were waived or barred by the doctrine of judicial estoppel. The chancellor also "reinstated" Jonathan's child support obligation and ordered him to pay $241 per month. Finally, the chancellor awarded Jonathan attorney's fees of $500 "due to [Faith's] contrary legal positions taken and judicial estoppel." Faith subsequently filed a notice of appeal.

         ¶14. On June 21, 2018, while this appeal was pending, Faith disclosed to her attorney that Jonathan was not Reed's biological father and that her adoption of Reed was fraudulent. Specifically, Faith told her attorney that Reed's biological mother was a distant cousin of Faith, that Jonathan falsely claimed to be Reed's biological father and signed Reed's birth certificate, that Faith subsequently adopted Reed, and that the adoption petition falsely represented that Jonathan was Reed's biological father.

         ¶15. Faith's attorney informed Jonathan's attorney of what Faith had told her, and Jonathan confirmed the basics of the fraud. Counsel for both Jonathan and Faith promptly informed the chancellor of the true circumstances of Reed's birth and adoption. The chancellor appointed a guardian ad litem (GAL) for Reed and ordered Faith and Jonathan to show cause why they should not be held in contempt for their fraud. The chancellor later reset the show-cause hearing for December 6, 2018.

         ¶16. Faith's attorney informed this Court of the developments in the chancery court, and a panel of this Court entered an order directing the parties to file supplemental briefs addressing the questions whether the proceedings in the chancery court would render this appeal moot in whole or in part or affect this Court's jurisdiction and whether the appeal should be stayed pending further proceedings in the chancery court. Abercrombie v. Abercrombie, 2017-CA-01158-COA (Miss. Ct. App. Oct. 31, 2018). The parties subsequently filed briefs addressing those issues.

         ¶17. Faith did not appear at the December 6 show-cause hearing in the chancery court, although her attorney was present. Jonathan testified that in 2010 Faith told him that a relative of hers (Ashley) was pregnant and did not want to keep her child, but Faith wanted to adopt the child. Ashley and Faith agreed that Jonathan should sign the child's birth certificate as the father and Faith would then adopt the child with Ashley's consent. Jonathan testified that he did not know the identity of the biological father but reluctantly went along with Ashley and Faith's plan. Ashley lived in Louisiana but moved in with Jonathan and Faith during her pregnancy, and Reed was born in Hattiesburg. Jonathan signed Reed's birth certificate as the father. Ashley then moved back to Louisiana, and Jonathan and Faith kept Reed in Mississippi. Jonathan testified that he "was told" that Faith's brother "contacted the biological father's family and told them the baby was stillborn." However, Jonathan was not in the room when that phone call was made. Faith and Jonathan later moved to Louisiana, and Faith adopted Reed. The adoption petition falsely represented that Jonathan was Reed's biological father. Jonathan testified that he had been unable to determine the identity of Reed's biological father, and he had not had any contact with Ashley since Reed's birth. ¶18. The GAL reported that as part of her ...


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