Tabatha Renee Quick Saint v. Jeffrey Dale Quick
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2008-CA-01333-COA
TABATHA RENEE QUICK SAINT
APPELLANT
v.
JEFFREY DALE QUICK
DATE OF JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEY FOR APPELLANT:
ATTORNEY FOR APPELLEE:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
APPELLEE
05/21/2008
HON. JOE DALE WALKER
SIMPSON COUNTY CHANCERY COURT
PHILIP A. GUNN
TERRELL STUBBS
CIVIL - DOMESTIC RELATIONS
DENIAL OF RECONSIDERATION OF
CUSTODY ORDER, CONTEMPT, AND
TRANSFER TO ALABAMA COURT
AFFIRMED IN PART, REVERSED AND
REMANDED IN PART – 12/15/2009
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
BEFORE MYERS, P.J., IRVING AND GRIFFIS, JJ.
IRVING, J., FOR THE COURT:
¶1.
This appeal arises out of a custody agreement between Jeffrey Dale Quick and
Tabatha Renee Quick Saint. Jeffrey and Tabatha were married in 1998, and three children
were born during their marriage. In 2007, Tabatha and Jeffrey were granted a divorce by the
Simpson County Chancery Court. Pursuant to the divorce, the parties agreed that Tabatha
and Jeffrey would share joint legal custody of the children, but that Tabatha would have
primary physical custody of them. Thereafter, Jeffrey filed a petition for modification of the
custody agreement, alleging that a material change in circumstances that affected the children
had occurred. Tabatha requested that the case be transferred to Alabama, where she had
moved after the divorce. After a hearing that both parties attended, the chancery court
declined to transfer the case to Alabama. Thereafter, a hearing was held to adjudicate
Jeffrey’s petition. Tabatha refused to attend this hearing on the ground that she had not
received notice and that the chancery court did not have jurisdiction over her. Ultimately,
the chancery court ordered that: (1) it had continuing jurisdiction over the parties and their
children, (2) the Albright1 factors dictated that custody be transferred from Tabatha to
Jeffrey, (3) Tabatha be jailed until she delivered the children to Jeffrey, and (4) Tabatha be
denied any visitation with the children until such was specifically granted by the chancery
court.
¶2.
Feeling aggrieved, Tabatha appeals and asserts that: (1) the service of process on her
for notice of a January 7, 2008, hearing was insufficient, and that the chancery court
therefore lacked personal jurisdiction over her; (2) a chancery court errs when it considers
Albright factors while only one parent is present; (3) this case should have been transferred
to Alabama; and (4) the chancery court’s January 10, 2008, order, which jailed Tabatha and
denied Tabatha visitation with the children, “was inequitable, unfair, not based on the
evidence, and created an undue hardship on Tabatha . . . .”
¶3.
We find that all of Tabatha’s issues are procedurally barred except for a consideration
1
The seminal case on child custody in Mississippi is Albright v. Albright, 437 So. 2d
1003, 1005 (Miss. 1983), which contains a list of factors that courts must use to make
custody determinations.
2
of issues raised in her Rule 60(b) motion and issues appealed from the court’s final order of
contempt. We find that the chancery court properly found no merit to Tabatha’s Rule 60(b)
motion; therefore, we affirm. However, we find error in the chancery court’s final order of
contempt, which denied Tabatha visitation. Therefore, we affirm in part, and reverse and
remand in part for further proceedings consistent with this opinion.
FACTS
¶4.
Tabatha and Jeffrey were married on July 18, 1998, separated in September 2005,2 and
were granted an irreconcilable differences divorce on March 14, 2007. Three children were
born during the course of their marriage; at the time of the divorce, the oldest child was
seven, and the youngest was two. The divorce decree indicates that Tabatha and Jeffrey had
“entered into a written CHILD CUSTODY, SUPPORT AND PROPERTY SETTLEMENT
AGREEMENT in anticipation of divorce . . . .” The decree also “ratified and approved” the
agreement.
¶5.
The agreement specified that the parties would have joint legal and physical custody
of the children, with Tabatha enjoying primary physical custody of the children. The
agreement also specified that Tabatha would have visitation every Mother’s Day, and that
Jeffrey would have visitation every Father’s Day. The non-custodial parent, Jeffrey, was
given visitation “on weekends he is off work.” The agreement also determined a custody
schedule for annual holidays, such as Easter, Christmas, and Thanksgiving. The agreement
explicitly stated that Jeffrey was “not to remove the minor children from the Central
2
This date is given in the court’s divorce decree; however, the agreement entered into
by Tabatha and Jeffrey pursuant to the divorce states that they separated in September 2006.
3
Mississippi area during the first three (3) weekends of visitation at his parents [sic] home.”
The agreement further stated that the children would be exchanged in Meridian, Mississippi,
after the first three weekends of visitation. Pursuant to the agreement, Jeffrey was required
to pay Tabatha eight hundred dollars per month in child support. The agreement distributed
the marital property and marital debts, and mandated that alimony would not be received by
either party, except that Jeffrey would pay Tabatha two hundred dollars each month in
rehabilitative alimony for one year.
¶6.
On June 27, 2007, Jeffrey filed a petition for contempt and for modification of the
divorce decree. On the same day, a summons was issued to Tabatha by the Simpson County
Chancery Clerk. Jeffrey’s petition stated that: (1) he was a citizen of the State of Louisiana;3
(2) Tabatha was a resident of the State of Alabama; (3) Tabatha had refused to allow Jeffrey
visitation with the children, thus violating the divorce agreement; (4) there had been a
material and substantial change in circumstances that had affected the children; (5) Tabatha
had “failed to properly care and provide for the children”; (6) Tabatha had failed to provide
a “stable home environment for the children”; and (7) Tabatha had “done things to and with
the children” that had “adversely affected the children mentally and/or physically.” The
petition requested that: (1) Jeffrey be granted primary physical custody of the children; (2)
Tabatha be required to pay Jeffrey’s attorney’s fees; and (3) a temporary hearing be held “to
3
Although Jeffrey’s motion stated that he was a citizen of Louisiana, testimony
indicates that this statement was misleading. Jeffrey testified that he is a resident of
Mississippi, and that his permanent residence is in Mississippi, but that his job requires him
to make frequent extended trips out of town. He testified that he has worked in Louisiana
and Texas.
4
adequately provide for the custody, support[,] and shelter of the parties’ minor children.”
¶7.
On July 17, 2007, a proof of service of summons was filed in the chancery court,
wherein Jeffrey’s attorney averred that he had served process on Tabatha by registered mail.
The associated summons informed Tabatha that a hearing would be held on July 25, 2007,
at 9:30 a.m. at the Smith County Chancery Court building in Raleigh, Mississippi. The
certified notice was sent on June 27, 2007, and was received by Tabatha on July 2, 2007,
according to the return receipt. The hearing that was scheduled for July 25 was ultimately
held on August 6, 2007, and Tabatha attended the hearing.
¶8.
On August 3, 2007, Tabatha filed a motion to transfer jurisdiction of the case to
Alabama. In the motion, Tabatha alleged that: a protection order had been entered by the
Marshall County Circuit Court in Alabama; she had filed a petition for modification in the
same court on May 22, 2007; she had lived in Alabama with the three children for almost two
years; and she was remarried and pregnant. Tabatha’s motion requested that, pursuant to the
Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), found in Chapter 27
of Title 93 of the Mississippi Code Annotated, the case be transferred to Marshall County,
Alabama. The petition also indicated that “the Department of Human Resources in Alabama
has begun an investigation into the abuse allegations.” The petition did not specify what was
meant by “the abuse allegations,” but an attached petition that had been filed in the Marshall
County court stated that Jeffrey had “threatened to kill [Tabatha] and kidnapped one of the
minor children herein during one of his scheduled visitations.” An attached affidavit
indicated that Jeffrey and Tabatha’s “children were interviewed by the Department of Human
Resources[, which] began an investigation into the abuse allegation[s].”
5
¶9.
On September 18, 2007, after an August hearing that both Tabatha and Jeffrey
attended, the chancery court entered an order, dated nunc pro tunc to August 9, 2007,
denying Tabatha’s motion to transfer the case to Alabama. The chancery court found “that
it ha[d] full jurisdiction of the parties and the subject matter in this case and will continue to
maintain jurisdiction.” The court entered a second nunc pro tunc order, also dated back to
August 9, holding Tabatha in contempt and ordering modification of the divorce decree. The
chancery court specifically found that: (1) Tabatha was in contempt of court due to her
failure to allow Jeffrey visitation with the children; (2) Tabatha could “purge herself of such
contempt by allowing [Jeffrey] to make up his missed . . . visitation with his children”; (3)
the children would be exchanged “at the Mendenhall Police Department in Mendenhall,
Mississippi”; and (4) due to her contempt, Tabatha would be required to pay Jeffrey’s
attorney’s fees of $1,800, as well as all court costs.
¶10.
Despite the court’s contempt finding and resulting order, Tabatha still did not allow
Jeffrey to have his court-ordered visitation with the children. On November 13, 2007, Jeffrey
filed a second petition for a finding of contempt and for modification of custody. In the
petition, Jeffrey averred that Tabatha had refused to comply with the contempt order and
subsequent modification, in that she was still refusing to allow him court-ordered visitation.
Jeffrey reiterated his reasons for requesting a modification of custody, and requested that
primary physical custody of the children be placed with him. The petition further requested
that Tabatha be ordered to pay Jeffrey’s attorney’s fees and court costs. An attached
summons, which was issued on November 13, 2007, informed Tabatha that there would be
a hearing on January 7, 2008, at 9:30 a.m. in Covington County, Mississippi. A proof of
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service by Ed Teal, a process server, indicated that Tabatha was served with process by
personal service on December 31, 2007. Jeffrey’s attorney also filed a proof of service,
indicating that he had sent notice to Tabatha by certified mail. The record indicates that the
mailings that were sent to inform Tabatha of the hearing were sent back as “unclaimed.”
¶11.
After a January 7, 2008, hearing that only Jeffrey attended, the court entered an order
on January 10, 2008, dated nunc pro tunc to January 7, 2008. In the order, the chancery court
found that: (1) Tabatha was in contempt due to her failure to comply with the court’s prior
orders; (2) Tabatha was further in contempt due to her refusal to allow Jeffrey to make up
his visitation as ordered by the court; (3) a material and substantial change in circumstances
had occurred that had an adverse impact on the children; (4) the Albright factors had been
considered by the court, and that a majority of the factors favored a finding that Jeffrey
should have custody of the children; (5) full legal and physical custody of the children be
given to Jeffrey; (6) Tabatha would have standard visitation only once she made an
appearance before the chancery court; (7) Tabatha would “immediately deliver the parties’
children to [Jeffrey] and the appropriate law enforcement officers shall assist in
accomplishing this”; (8) Tabatha would pay Jeffrey $420 each month in child support; and
(9) Tabatha would pay attorney’s fees and court costs of $2,597. Tabatha did not appeal this
judgment.
¶12.
On February 22, 2008, Tabatha filed a motion under Rule 60(b) of the Mississippi
Rules of Civil Procedure, requesting relief from the chancery court’s orders. In the motion,
Tabatha claimed that the court’s orders were void due to lack of personal jurisdiction,
insufficiency of process, and insufficiency of service. The motion suggested that the case
7
be transferred to Alabama. Within a week, Jeffrey submitted a response to Tabatha’s motion,
wherein he asserted that the motion was not timely filed and lacked specificity as to
Tabatha’s claims.
¶13.
On April 16, 2008, Tabatha filed a motion to dismiss and entered a special appearance
solely for the purpose of contesting jurisdiction. In the motion, Tabatha claimed that she had
received insufficient notice of the January 7 hearing and that the chancery court had no
jurisdiction as a result of the UCCJEA. Included with the motion was an affidavit by
Tabatha denying that she was served with personal process by Teal on December 31, 2007.
¶14.
On May 21, 2008, Tabatha’s motions were heard at a hearing that Jeffrey and Tabatha
both attended. At the hearing, Tabatha testified that she had resided in Albertville, Alabama,
since November 13, 2005. Tabatha further testified that she had never been served with any
papers relating to her case. She explained that she knows Teal and that she observed him
following her vehicle in December 2007. When she observed him following her, she
testified that she went to her father’s house because she was frightened. Tabatha further
testified that, once at her father’s house, she and the children immediately went inside and
that her father and her husband would not allow Teal on the property to speak with her. She
testified that she next encountered Teal on December 31, 2007, when he again began
following her. Tabatha indicated that she pulled into her own driveway this time and
informed her husband that Teal was in the driveway. Tabatha also testified that she had filed
a complaint with the police due to Teal’s conduct. Tabatha testified that Teal never
attempted to speak to her on December 31, and that he threw papers on the ground near her
husband before leaving. Tabatha further testified that her family is in Alabama, while
8
Jeffrey’s family lives in Mississippi. Tabatha also testified that, since the August 2007 order
of the chancery court, she had not spoken to Jeffrey.
¶15.
Teal also testified at the hearing that he attempted to hand the papers to both Tabatha
and her husband before dropping them on the ground and informing Tabatha of their
location.
¶16.
On July 14, 2008, the chancery court entered a judgment, dated nunc pro tunc to May
21, 2008, finding that Tabatha had been served with process and was in contempt for failure
to deliver the children as ordered on January 7, 2008. The court ordered the “Sheriff of
Covington County, Mississippi[, to] hold [Tabatha] in his custody until such time as she may
be transferred to the Simpson County . . . Sheriff’s Office[,] and she shall be held in the
Simpson County Jail until such time as she turns the children over to [Jeffrey].” The court
also ordered that Tabatha would have no visitation with the children unless the court issued
an order permitting such, and that Tabatha would have to post a security bond of $7,500
before the court would consider granting visitation. A guardian ad litem, April Taylor, was
appointed on behalf of the children. In separate orders dated the same day, the court denied
Tabatha’s Rule 60(b) motion and her motion to dismiss.
¶17.
Tabatha filed her notice of appeal on July 30, 2008.
¶18.
Additional facts, as necessary, will be related in our analysis and discussion of the
issues.
ANALYSIS AND DISCUSSION OF THE ISSUES
¶19.
We will not disturb the findings of the chancellor unless they are “clearly erroneous
or an erroneous legal standard was applied.” Edmonds v. Edmonds, 935 So. 2d 980, 982 (¶4)
9
(Miss. 2006) (quoting Rennie v. Rennie, 718 So. 2d 1091, 1093 (¶6) (Miss. 1998)).
“However, [we review] issues of law de novo.” Id. (citing Ellis v. Anderson Tully Co., 727
So. 2d 716, 718 (¶14) (Miss. 1998)).
1. Appealable Claims
¶20.
The only notice of appeal that Tabatha ever filed was filed within thirty days of the
July 14, 2008, orders, one of which found Tabatha in contempt and required her to post the
$7,500 security bond, and the others of which dealt only with Tabatha’s Rule 60(b) motion
and her motion to dismiss. Therefore, the only issues that are properly before this Court are
those that were raised in those two motions, as well as any issue based on the July 18 order
of contempt. We address each of these orders and their effects separately, for the sake of
clarity.
a. Order of Contempt
¶21.
The July 18 contempt order found that Tabatha had failed to deliver the children to
Jeffrey, as was ordered by the chancery court on January 7. As a result, the chancery court
ordered: that Tabatha be jailed until she delivered the children to Jeffrey, that she have no
visitation with the children, that she should pay for Taylor’s services as guardian ad litem,
and that Tabatha would have to pay a $7,500 security bond before the chancellor would
consider allowing her to have visitation with the children. The order did not adjudicate the
Albright factors or grant Jeffrey primary custody of the children, as both had already been
done by a prior court order, which Tabatha never appealed. Therefore, the only issues that
Tabatha can appeal regarding the contempt order is her jailing, the requirement that she pay
for Taylor’s services, her lack of visitation, and the requirement that she post a $7,500 bond.
10
As Tabatha is no longer in jail, any complaint about that aspect of the court’s ruling is moot.
As we read Tabatha’s appellate brief, she does not complain about the court’s requirement
that she pay for Taylor’s services. Therefore, the only two issues from the contempt order
that are still alive are the imposition of the security bond and the court’s refusal to allow
Tabatha visitation with her children. We consider both of these issues later in this opinion.
b. Motion to Dismiss
¶22.
Tabatha filed her motion to dismiss on April 16, 2008, more than three months after
the chancery court entered the order that Tabatha sought to attack in her motion. In the
motion, Tabatha asserted that she did not receive notice of the January 7, 2008, hearing, and
that the chancery court did not have jurisdiction due to the UCCJEA. Tabatha’s contentions
in the motion are procedurally barred, as they are barred by the doctrine of res judicata. Our
supreme court recently discussed the doctrine of res judicata at some length in Hill v. Carroll
County, 17 So. 3d 1081, 1084-85 (¶¶8-9) (Miss. 2009):
“The doctrine of res judicata bars parties from litigating claims ‘within the
scope of the judgment’ in a prior action.” Anderson v. LaVere, 895 So. 2d
828, 832 [(¶10)] (Miss. 2004). “This includes claims that were made or should
have been made in the prior suit.” Id. “Res judicata reflects the refusal of the
law to tolerate a multiplicity of litigation.” Little v. V & G Welding Supply,
Inc., 704 So. 2d 1336, 1337 [(¶8)] (Miss. 1997). “It is a doctrine of public
policy designed to avoid the expense and vexation attending multiple lawsuits,
conserve judicial resources, and foster reliance on judicial action by
minimizing the possibilities of inconsistent decisions.”
Harrison v.
Chandler-Sampson Ins., Inc., 891 So. 2d 224, 232 [(¶23)] (Miss. 2005)
[(quoting Little v. V & G Welding Supply, Inc., 704 So. 2d 1336, 1337 (¶8)
(Miss. 1997))].
As noted by this Court, the doctrine of res judicata has two primary functions.
[“]Under the principle known as [‘]bar,[’] res judicata precludes claims which
were actually litigated in a previous action.[”] Harrison, 891 So. 2d at 232
[(¶22)] (citing Jeffrey Jackson & Mary Miller, Encyclopedia of Mississippi
11
Law § 14:6, 350 (2001)). [“]Under the principle known as [‘]merger,[’] res
judicata prevents subsequent litigation of any claim that should have been
litigated in a previous action.[”] Id.
¶23.
Tabatha raised the issue of the UCCJEA and jurisdiction in August 2007, and the
chancery court had a hearing on August 9, 2007, on Tabatha’s motion. Both Tabatha and
Jeffrey attended that hearing. Thereafter, on September 18, 2007, the chancery court entered
an order finding that it had full jurisdiction over the case and that the case would not be
transferred to Alabama. Tabatha did nothing to appeal the September 18 order at the trial or
appellate level. Therefore, the issue of whether the chancery court properly had jurisdiction
under the UCCJEA had been previously litigated by the parties, and the court’s order finding
that it had jurisdiction is a final judgment that has never been appealed. Therefore, res
judicata bars Tabatha from attacking the court’s jurisdiction under the UCCJEA.
¶24.
As to notice of the January 7, 2008, hearing, the chancery court implicitly found that
Tabatha had been served with notice of the hearing when it proceeded on that date without
her present. Tabatha did not appeal the resulting order that was entered on January 10, 2008,
within thirty days. Therefore, she is also procedurally barred from protesting any alleged
lack of notice concerning the January 7 hearing. Tabatha has never asserted that she did not
receive notice of the court’s judgment, which was filed on January 10. Furthermore, even
if we did not find that res judicata bars this issue, we would still find it without merit, as there
is sufficient evidence to support the chancery court’s finding that Tabatha had sufficient
notice of the hearing. Although Tabatha contends that she was not personally served with
the papers informing her of the hearing, her testimony differed significantly from Teal’s.
Essentially, Tabatha claimed that she had gone into her house and had no personal encounter
12
with Teal on December 31, 2007. Teal, however, testified that he attempted to give the
papers to Tabatha and to her husband, and that both refused to accept them. Teal indicated
that he then left the papers outside after informing Tabatha of the fact that he was leaving
them there. The chancellor was entitled to believe whomever he found more credible.
Therefore, we find no error in the chancellor’s finding that Tabatha was personally served
with notice of the January 7 hearing.
¶25.
There are no remaining appealable claims in Tabatha’s motion to dismiss.
c. Rule 60(b) Motion
¶26.
A Rule 60(b) motion may be made on several different grounds: clerical mistakes;
newly-discovered evidence, accident, mistake, that a judgment is void, that a judgment has
been satisfied, or for “any other reason justifying relief from the judgment.” A motion under
Rule 60(b) must be made “within a reasonable time.” Tabatha’s Rule 60(b) motion was filed
on February 22, 2008, approximately six weeks after the chancery court entered its order.
The motion asserted that the January 10 order of contempt was void “for want fo [sic]
personal jurisdiction over Tabatha . . .; insufficiency fo [sic] process; and, insufficiency of
service or process.” The motion also asserted, without referencing any basis in Rule 60, that
Tabatha should be granted relief because she and the children had moved to Alabama.
Essentially, the Rule 60(b) motion raised the same grounds as the motion to dismiss.
¶27.
We find that the issue of where Tabatha and the children resided, and the resulting
implications raised by the UCCJEA are, as already discussed, barred as res judicata.
Furthermore, this complaint does not fall under any of the grounds for relief in Rule 60.
There was testimony to the effect that Jeffrey still lived in Mississippi, although he had spent
13
time working in both Texas and Louisiana. Jeffrey testified that his permanent address was
in Mississippi; after custody of the children was granted to him on January 10, Jeffrey’s
residence became the children’s residence. Tabatha is not entitled to any relief as a result of
her residence in Alabama.
¶28.
The only issue left to consider is whether the January 10 order is void as a result of
any lack of process on Tabatha. As discussed above, Teal explained to the chancery court
how he served the papers on Tabatha.
Despite her contention that events occurred
differently, the chancery court was entitled to believe Teal instead of Tabatha. Therefore,
as already discussed, we find no error with the court’s finding that Tabatha received notice
of the January 7 hearing. Furthermore, as for any allegation that the chancery court had no
personal jurisdiction over Tabatha, it is uncontradicted that Tabatha appeared before the
court on August 9, 2007, and submitted to the court’s jurisdiction. There is nothing in the
record to indicate that Tabatha’s August 9 appearance was a special appearance solely to
contest jurisdiction. Therefore, there is no merit to Tabatha’s contention that the January 10
order is void.
¶29.
Essentially, the only claims that Tabatha makes that we must address are whether the
court erred in denying Tabatha any visitation and whether the court erred in requiring her to
post a $7,500 security bond.
2. Visitation
¶30.
In granting or denying visitation, a chancellor’s primary concern must be the best
interest of the child, while still considering “the rights of the non-custodial parent,
recognizing the need to maintain a healthy, loving relationship between the non-custodial
14
parent and his child.” Harrington v. Harrington, 648 So. 2d 543, 545 (Miss. 1994) (citing
White v. Thompson, 569 So. 2d 1181, 1185 (Miss. 1990)). Furthermore, “there must be
evidence presented that a particular restriction on visitation is necessary to avoid harm to the
child before a chancellor may properly impose the restriction.” Id. (citing Dunn v. Dunn, 609
So. 2d 1277, 1286 (Miss. 1992)).
¶31.
We find that the chancellor abused his discretion in refusing to award any visitation
to Tabatha. There is no indication that there was any impending harm to the children
sufficient to justify a complete denial of visitation to Tabatha. Given that visitation should
be considered with the best interests of the children in mind, Tabatha’s continual refusal to
abide by court orders should be considered only to the extent that that refusal impacts the
best interests of the children. Therefore, we reverse and remand to the chancery court. On
remand, the chancery court must grant visitation to Tabatha, on whatever conditions the court
finds are necessary to protect the interests of the children. For example, the chancery court
could order that visitation take place in Mississippi, or that visitation be restricted and
carefully supervised. In making any determination regarding visitation, the court must
ultimately make the best interests of Tabatha and Jeffrey’s children its primary concern.
3. Security Bond
¶32.
We also remand the issue of the security bond to the chancery court. The use of a
bond in visitation cases is not unheard of in Mississippi. Rakestraw v. Rakestraw, 543 So.
2d 174, 176-77 (Miss. 1989); Roberts v. Fuhr, 523 So. 2d 20, 26-27 (Miss. 1987); Case v.
Stolpe, 300 So. 2d 802, 803-05 (Miss. 1974); Faris v. Jernigan, 939 So. 2d 835, 839-40
(¶¶10-12) (Miss. Ct. App. 2006). In Rakestraw, Bobby Rakestraw “absconded from the State
15
of Mississippi with [his] two young children . . . and evaded apprehension for a period of
seventeen months.” Rakestraw, 543 So. 2d at 176. In affirming the restrictions that the
chancellor placed on Rakestraw, including a ne exeat bond, the Mississippi Supreme Court
found that: “Without question, the chancellor was authorized to limit visitation in an effort
to insure that the children remained in the state . . . .” Id. In Faris, this Court affirmed a
chancellor’s imposition of a $40,000 bond on a mother who had refused to return her child
after a weekend visitation. Faris, 939 So. 2d at 839-40 (¶¶9-10). In so ruling, we discussed
the purpose of requiring a bond in such cases:
The purpose of the ne exeat bond is to ensure that the orders of the court will
not be ignored. Ayers v. Ayers, 734 So. 2d 213, 217 (Miss. Ct. App. 1999)
(citing N. Shelton Hand, Divorce, Alimony and Child Custody § 9-1 (5th ed.
1998)). “The bond is not generally issued without satisfactory proof that the
party will probably vacate or be absent from the reach of the court, and thus,
once subjected to such, either the person or the bond in his or her place, must
be available to the court and its processes.” Id. Faris lives in New Orleans,
Louisiana, and will be taking [the child] outside the court’s reach for overnight
visitation in her home. The situation is no different than the prior visitation
order that Faris violated. In order to ensure compliance with the visitation
order and to protect the interests of both the minor child and the father, the
chancellor deemed it necessary to impose a ne exeat bond in an amount
sufficient to deter future violations of the visitation order.
Id. at 840 (¶11) (emphasis added).
¶33.
In the present case, Tabatha refused to deliver the children to Jeffrey for his regularly-
scheduled visitation, and further refused to relinquish custody of the children after the court
ordered that Jeffrey have custody of them. However, as we are remanding this case, we
direct the chancellor to reconsider the imposition of the $7,500 bond and whether the bond
is necessary to insure that Tabatha return the children to Jeffrey. We find that bond should
be required only if there is a substantial risk that necessitates such an imposition, taking into
16
account whatever other restrictions the chancellor imposes on Tabatha’s visitation with the
children.
¶34. THE JUDGMENT OF THE SIMPSON COUNTY CHANCERY COURT IS
AFFIRMED IN PART AND REVERSED AND REMANDED IN PART FOR
FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF
THIS APPEAL ARE ASSESSED ONE-HALF TO THE APPELLANT AND ONEHALF TO THE APPELLEE.
KING, C.J., LEE AND MYERS, P.JJ., GRIFFIS, BARNES, ISHEE, ROBERTS,
CARLTON AND MAXWELL, JJ., CONCUR.
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