171 So. 3d 561
Miss. Ct. App.2015Background
- Brad and Caroline Nurkin divorced in Tennessee (2011); Tennessee awarded Caroline custody of their son Jake (born 2003). Both parents later relocated: Caroline to Hattiesburg, MS; Brad to Gainesville, GA.
- Caroline filed in Forrest County Chancery Court (Nov. 2012) to modify Jake’s visitation; she also sought contempt for unpaid medical expenses and child-support modification (later dismissed for lack of jurisdiction under UIFSA).
- Chancellor retained Mississippi jurisdiction over visitation, held a hearing, and on Sept. 20, 2013 modified the visitation schedule to create a fixed, predictable routine for Jake, including summer schedule and one weekend per month during the school year.
- Chancellor prohibited Jake from flying in a private plane during visitation; Brad challenged that restriction and other rulings and filed post-trial motions and appeals. Chancellor later issued a clarification/modification while appeal was pending.
- Court of Appeals affirmed modification of visitation (routine/stability for autistic child), reversed the private-plane restriction, vacated the chancellor’s order entered while appeal pending (extra visitation), and affirmed dismissal of Caroline’s child-support claim for lack of UIFSA jurisdictional steps.
Issues
| Issue | Plaintiff's Argument (Brad / Caroline) | Defendant's Argument (opposing) | Held |
|---|---|---|---|
| Jurisdiction to modify Tennessee visitation | Brad: Mississippi court lacked jurisdiction under UIFSA to modify Tennessee judgment | Caroline: Visitation is custody matter under UCCJEA; Mississippi had jurisdiction because no parties remained in Tennessee | Held: Mississippi had jurisdiction over visitation under the UCCJEA; UIFSA governs support only |
| Sufficiency of evidence to modify visitation | Brad: Insufficient evidence to alter existing visitation | Caroline: Jake needs routine due to autism; summer visits lacked therapy and predictability | Held: Modification supported by substantial evidence; fixed schedule appropriate |
| Prohibition on private-plane flights during visitation | Brad: Chancellor erred; no evidence flying was dangerous; parent may decide extracurricular activities | Caroline: Private flight poses safety concerns for Jake | Held: Restriction reversed; no evidence justified banning private flights |
| Chancellor’s post-judgment clarification/modification while appeal pending | Brad: Chancellor lacked jurisdiction to amend order during appeal | Caroline: Clarification/extra visitation was proper (implicitly) | Held: Chancellor’s December 16, 2013 order that increased Brad’s visitation while appeal pending was void and vacated; denial of Rule 60(a) clarification was proper because motion sought amendment, not clerical correction |
Key Cases Cited
- Cox v. Moulds, 490 So. 2d 866 (Miss. 1986) (standard for modifying visitation: prior decree not working and change in child’s best interest)
- Mord v. Peters, 571 So. 2d 981 (Miss. 1990) (court may not restrict noncustodial parent’s activities absent evidence of danger)
- McNeese v. McNeese, 129 So. 3d 125 (Miss. 2013) (filing a notice of appeal generally transfers jurisdiction to appellate court; limited exceptions for agreed orders)
- McNeil v. Hester, 753 So. 2d 1057 (Miss. 2000) (lower court may not broaden, amend, or modify judgment while appeal pending absent supersedeas)
- Givens v. Nicholson, 878 So. 2d 1073 (Miss. Ct. App. 2004) (noncustodial parent may determine child’s extracurricular activities during visitation)