Joseph A. Sallis v. Shirley D. Sallis
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2002-CA-00800-COA
JOSEPH A. SALLIS
APPELLANT
v.
SHIRLEY D. SALLIS
APPELLEE
DATE OF TRIAL COURT JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEYS FOR APPELLANT:
ATTORNEY FOR APPELLEE:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
CERTIORARI FILED:
MANDATE ISSUED:
3/6/2002
HON. JOHN C. ROSS, JR.
PRENTISS COUNTY CHANCERY COURT
TOMMY DEXTER CADLE
KENNETH EUGENE FLOYD
JOHN A. FERRELL
CIVIL - DOMESTIC RELATIONS
APPELLANT'S COMPLAINT FOR DIVORCE
DISMISSED.
AFFIRMED - 09/30/2003
BEFORE KING, P.J., BRIDGES AND LEE, JJ.
LEE, J., FOR THE COURT:
PROCEDURAL HISTORY AND FACTS
¶1.
On July 20, 2001, Joseph Sallis filed a complaint for divorce against Shirley Sallis in the Prentiss
County Chancery Court. On September 4, 2001, the chancellor granted Joseph a divorce. On September
13, 2001, Shirley filed a motion to set aside the judgment claiming she was only served with a Rule 81
summons but not a Rule 4 summons, thereby failing to bestow jurisdiction upon the chancery court to grant
the divorce. The chancellor granted Shirley's motion to set aside, and Joseph filed another complaint for
divorce to which Shirley responded with another motion to dismiss. The chancellor again granted the
motion to dismiss finding that Joseph and Shirley separated while residing in Illinois and that Shirley had
filed a complaint for divorce in Illinois; therefore, Illinois and not Mississippi had jurisdiction. Joseph filed
a motion to set aside the order dismissing his complaint, but the chancellor denied the motion. Joseph now
appeals to this Court arguing that the chancellor erred in dismissing his complaint when jurisdiction was
clearly vested in the Mississippi chancery court. We review Joseph's argument and find no merit; thus, we
affirm.
DISCUSSION
I. DID THE MISSISSIPPI CHANCERY COURT HAVE JURISDICTION OVER
THE DIVORCE SUCH THAT THE CHANCELLOR ERRED IN DISMISSING FOR
LACK OF JURISDICTION?
¶2.
Joseph lists three issues in his brief, but all three essentially concern whether the Mississippi court
had jurisdiction; thus, we address all in this one discussion. The chancellor dismissed Joseph's complaint
for divorce based on lack of jurisdiction, and we review this question of law de novo. Kolikas v. Kolikas,
821 So. 2d 874 (¶14) (Miss. Ct. App. 2002).
¶3.
In dismissing Joseph's complaint for divorce, the chancellor found that Shirley had previously filed
a complaint for divorce in Illinois where the couple had separated; thus, Illinois had jurisdiction and was
the proper forum. In his motion to set aside, Joseph claimed that he and Shirley actually separated while
residing in Pennsylvania and that he had never been served with an Illinois complaint. Joseph also claims
that by virtue of his residence in Mississippi six months prior to the filing of his complaint there, he met the
jurisdictional requirements, and the chancellor erred in dismissing the complaint.
¶4.
As indicated in the transcript from the hearing on Shirley's motion to dismiss, her attorney explained
to the court that the Sallises lived in Illinois through eighteen years of marriage, they separated while both
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were living in Illinois, Shirley was still a resident of Illinois, a complaint for divorce was filed in Illinois five
months prior to Joseph's filing the same in Mississippi, and therefore Illinois was more closely tied to the
Sallises's case than was Mississippi. After the hearing, the chancellor ruled that the parties separated while
residing in Illinois and that Shirley had filed for divorce in Illinois, as well. Consequently, the chancellor
found that jurisdiction inured to Illinois and no other proceedings could be held in Mississippi.
¶5.
Joseph cites Cox v. Cox, 234 Miss. 885, 108 So. 2d 422 (1959), for authority. In February1957,
Ralph Cox filed for divorce from his wife in Mississippi and also sought custody of their child. Id. at 889,
108 So. 2d at 423. Lorraine Cox was served with the complaint, but declined to answer or offer
witnesses, and a final order of divorce was entered in May 1957. Id. at 889-90, 108 So. 2d at 423.
Lorraine filed a motion to dismiss based on jurisdiction, claiming a divorce action was pending in
Pennsylvania where the couple previously resided, and alleging that Ralph filed the complaint in Mississippi
solely for the purpose of gaining custody of their child. Id. at 890, 108 So. 2d at 423. Ralph rebutted that
the motion was insufficient on its face because it did not include authenticated copies of the Pennsylvania
proceedings. Id. An action had, in fact, been filed in Pennsylvania in 1953, and a temporary order of
custody entered, but the divorce had not been adjudicated at the time of the Mississippi action. Id. at 891,
108 So. 2d at 424. The supreme court stated:
It is well-established that the pendency of an action for divorce in another state is not a bar,
nor a cause for a stay of proceedings, in a similar action between the same parties in the
state, where jurisdiction of defendant is obtained by personal service of process. A stay
is not a matter of right, but rests within the sound discretion of the court.
Id., at 892, 108 So. 2d at 424 (citations omitted).
¶6.
We read Cox in conjunction with the more recent case of Brown v. Brown, 493 So. 2d 961
(Miss. 1986), which Shirley cites. Clayton and Mary Brown married in California in 1968 and one child
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was born three years later. Id. at 2d 962. In 1984, Clayton filed for divorce in Harrison County,
Mississippi, where he was stationed in the Air Force. Id. Nine days later, Mary filed for divorce in
California, where she and the child remained. Id. The following month, Clayton appeared in California to
request a stay on the California proceedings pursuant to the Soldiers and Sailor's Civil Relief Act of 1940,
50 U.S.C.App. § 513, which the court granted. Id. Mary requested a stay in the proceedings pending
the California action, which the chancellor granted, and the Mississippi Supreme Court affirmed. Id. at
964. The supreme court stated:
That there is another action regarding the same subject matter pending in the courts of a
sister state poses no jurisdictional obstacle to a court of this state of otherwise competent
jurisdiction hearing and adjudging the matter in controversy. The question is not whether
the Chancery Court has jurisdiction of this matter but how it should exercise such
jurisdiction as it has.
Whether under these facts Mississippi should defer to California is a matter committed to
the sound discretion of the Chancery Court, informed by the presence or absence of
exigent circumstances, the legitimate needs and conveniences of the parties, and
considerations of interstate comity and the need to avoid unseemly forum shopping.
Id. at 963.
¶7.
Both Cox and Brown state that the pendency of a case in one jurisdiction is not a necessary bar
to the same action in another jurisdiction. Brown, 493 So. 2d at 963; Cox, 234 Miss. at 892, 108 So.
2d at 424. Additionally, Brown adds that the chancellor has discretion to decide which state will have
jurisdiction over the matter at issue, taking into consideration the existence of any exigent circumstances,
the parties' needs, and consideration for comity and protection against forum shopping. Brown, 493 So.
2d at 963. The chancellor heard oral arguments on the subject, and based on the evidence presented at
that time he determined that Illinois was the proper forum. Whether or not Joseph was properly served
in Illinois is a matter for contest in that jurisdiction. However, in our de novo review and pursuant to the
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rules from both Brown and Cox, we find dismissal of the Mississippi action under the circumstances was
proper for the same reasons the chancellor found were cause for dismissal. Accordingly, we affirm the
chancellor.
¶8.
THE JUDGMENT OF THE PRENTISS COUNTY CHANCERY COURT IS
AFFIRMED. COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.
McMILLIN, C.J., KING AND SOUTHWICK, P.JJ., BRIDGES, THOMAS, IRVING,
MYERS, CHANDLER AND GRIFFIS, JJ., CONCUR.
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