                      IN THE SUPREME COURT OF MISSISSIPPI

                                  NO. 2003-IA-00278-SCT

MITCHELL STUART SLAUGHTER

v.

MONICA WOODS SLAUGHTER


DATE OF JUDGMENT:                           1/29/2003
TRIAL JUDGE:                                HON. WILLIAM G. WILLARD, JR.
COURT FROM WHICH APPEALED:                  COAHOMA COUNTY CHANCERY COURT
ATTORNEYS FOR APPELLANT:                    CHARLES E. WEBSTER
                                            TINA MARIE DUGARD SCOTT
ATTORNEY FOR APPELLEE:                      NANCY ALLEN WEGENER
NATURE OF THE CASE:                         CIVIL - DOMESTIC RELATIONS
DISPOSITION:                                AFFIRMED IN PART; REVERSED AND
                                            RENDERED IN PART - 04/01/2004
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       EN BANC.

       EASLEY, JUSTICE, FOR THE COURT:

¶1.    On this appeal issues of venue and jurisdiction in a divorce and custody proceeding are

raised, however, the main issue to be addressed is whether a chancery court may dismiss a

contested divorce for lack of jurisdiction pursuant to Miss. Code Ann. § 93-5-11 (Rev. 1994)

yet retain the action based upon irreconcilable differences. In addition, the question is raised

as to whether Miss. Code Ann. § 93-11-65 (Supp. 2003) can confer jurisdiction for a

contested divorce.

¶2.    This Court finds that the Coahoma County Chancery Court correctly ruled that it lacked

jurisdiction over the fault ground of divorce, habitual cruel and inhuman treatment, pursuant
to the venue requirements of Miss. Code Ann. § 93-5-11. This Court also finds that the

chancellor erred by retaining the divorce action on the ground of irreconcilable differences.

The chancellor could not “cure” the failure to file the action in the proper venue by solely

dismissing the contested ground of divorce. Mitchell Stuart Slaughter (Mitchell) argued that

Coahoma County never had jurisdiction over the divorce, he never consented to a divorce on

the grounds of irreconcilable differences nor entered into a joint bill and separation

agreement. The chancellor never had jurisdiction over the divorce and should not have

considered the divorce action. Furthermore, Mitchell filed a motion to consolidate and

transfer the Coahoma County divorce action to the Chancery Court of the First Judicial

District of Chickasaw County where he later filed a contested divorce, including custody and

support issues. This Court finds that the Coahoma County chancellor cannot consolidate and

transfer as to the issue of divorce since Coahoma County never had jurisdiction over the

divorce.

¶3.    As for the custody issue, Monica Woods Slaughter (Monica) and Mitchell, respectively

argued that Coahoma County or Chickasaw County are the proper venues. This case was filed

as a complaint of divorce, motion for temporary support and motion for temporary restraining

order and injunctive relief. Reading the applicable domestic relations statutes, §§ 93-5-11, 93-

5-23 and 93-11-65, together, it is clear that in a situation similar to the facts presented today,

that the custody issue cannot be severed from the divorce proceedings to circumvent the

statutory requirements. To allow otherwise would promote forum shopping by parties and not

be in the interest of promoting judicial economy. Accordingly, we find that the chancellor

                                                2
erred by not granting the motion to dismiss, in toto, for the issue of divorce and custody.

Since the Coahoma County chancellor should have granted Mitchell’s motion to dismiss in

toto, the chancellor did not have authority to consolidate and transfer the custody matter to

Chickasaw County where Mitchell filed for divorce. Therefore, we affirm in part and reverse

and render in part.

                                    Procedural History

¶4.    Monica Woods Slaughter (Monica) and Mitchell Stuart Slaughter (Mitchell) were

married on June 30, 2001, in Coahoma County, Mississippi. The couple lived in Chickasaw

County after their marriage. At the time of their separation on October 28, 2002, the couple

separated and lived in Chickasaw County. Monica left the marital home on October 28, 2002,

and returned to the home of her parents in Coahoma County. Two days later, on October 30,

2002, Monica filed a single document titled Complaint for Divorce, Motion for Temporary

Support and Motion for Temporary Restraining Order and for Injunctive Relief in the

Chancery Court of Coahoma County. The divorce alleged the fault grounds of habitual cruel

and inhuman treatment and, in the alternative, irreconcilable differences. See Miss. Code Ann.

§ 93-5-1 and § 93-5-2 (paragraphs VI and VII of the Complaint). At the time of this filing, the

couple had one five month old child, Justin.1

¶5.    On November 20, 2002, Mitchell filed a motion to dismiss. In his motion, Mitchell

asserted that pursuant to Miss. Code Ann. § 93-5-11 the proper venue for filing the complaint


       1
        At the time of the initial filing of the divorce action, Monica alleged that she did not
know of her second pregnancy which resulted in the birth of another child in 2003.

                                                3
for divorce was Chickasaw County, the place of his residence as the defendant. Furthermore,

Monica and Mitchell separated in Chickasaw County. Mitchell argued that Coahoma County

lacked jurisdiction to hear the case. On November 22, 2002, both parties appeared at a hearing

on the matter. Prior to the written ruling on the motion, Mitchell filed a Complaint for

Divorce, Custody and other relief in Chickasaw County.2          On December 13, 2002, the

chancellor filed its order denying the motion to dismiss in part and granting temporary relief.

The chancellor dismissed the fault ground divorce, but it retained jurisdiction over the action

solely on Monica's request for an irreconcilable differences divorce, and the custody and

support issues. The order stated in part:

       This Court has jurisdiction of the parties hereto and the subject matter herein
       as they relate to divorce on the sole ground of irreconcilable difference
       pursuant to § 93-5-11. This Court has jurisdiction of the custody and support
       of the minor child pursuant to § 93-11-651(a) 3 (sic). This Court has additional
       authority pursuant to § 95-11-234 (sic) to determine custody and support of a
       minor child[.] Venue is proper in Coahoma County. This Court does not have
       jurisdiction over the matter of the divorce on the ground of habitual cruel
       and inhuman treatment pursuant to § 93-5-11[.]

(emphasis added).

¶6.    Thereafter, Mitchell filed his answer for divorce contesting the subject matter and in

persona jurisdiction. In addition, Mitchell denied that Monica was entitled to a divorce for



       2
         The record is solely from Coahoma County but a copy of the Mitchell’s complaint
for divorce, custody and other relief filed in Chickasaw County is included as an exhibit to his
motion to consolidate and transfer.
       3
           § 93-11-65(1)(a). This error was corrected in the amended order.
       4
           § 93-5-23. This error was corrected in the amended order.

                                               4
irreconcilable differences and did not agree to such a divorce. On January 16, 2003, Mitchell

filed a motion to consolidate and transfer to the Chancery Court of Chickasaw County. On

January 28, 2003, the chancellor denied the motion to consolidate and transfer. Following this

ruling, Mitchell entered a motion to amend prior orders and requested that the chancellor

certify his rulings pursuant to M.R.A.P. 5 in order for Mitchell to petition this Court for an

interlocutory appeal. The chancellor amended the two orders (1) order denying the motion to

consolidate and transfer, and (2) the order denying the motion to dismiss in part and granting

in part and granting temporary relief and certified pursuant to M.R.A.P. 5 that a substantial

basis existed for a difference of opinion on certain questions of law. The questions of law

were identified as:

       [1] whether Coahoma County is the proper venue for this action, [2] whether this
       Court has jurisdiction to proceed with the divorce based upon the ground of
       irreconcilable differences, [3] whether this Court has jurisdiction to proceed
       with the divorce based upon the contested ground of habitual cruel and inhuman
       treatment, and [4] whether this Court has properly retained jurisdiction pursuant
       to Miss. Code Ann. 93-11-65 to hear those issues relating to the custody and
       support of the minor child, [and that] appellate resolution of these issues would
       (1) materially advance the termination of the litigation and avoid exceptional
       expense to the parties by allowing them to litigate these issues in only one
       forum and (2) resolve an issue of general importance in the administration of
       justice of this State.

A fifth question concerning the order denying the motion to consolidate and transfer only, was

“whether this Court erred in failing to consolidate this matter with the divorce proceeding

between these same parties now pending before the Chancery Court of Chickasaw County,

Mississippi.”



                                              5
¶7.    This Court by order granted an interlocutory appeal on April 3, 2003. From the

certified chancery court rulings, Mitchell raises the following issues for interlocutory appeal

to this Court:

       I.        Whether Miss. Code Ann. § 93-11-65 may confer venue and
                 jurisdiction over a contested divorce.

       II.       Whether the chancery court erred by denying Mitchell’s motion to
                 dismiss.

       III.      Whether the chancery court err in failing to grant Mitchell’s
                 motion to transfer and consolidate, thereby bifurcating the issues
                 of child care, custody and maintenance of the minor child from the
                 divorce action.

                                       Legal Analysis

¶8.    Prior to considering Miss. Code Ann. § 93-11-65, this Court finds that the analysis

should begin with a general overview of Miss. Code Ann. § 93-5-11, § 93-11-65, the motion

to dismiss and the motion to consolidate and transfer.

       A.        § 93-5-11

¶9.    In divorce proceedings, Miss. Code Ann. § 93-5-11 provides the venue for filing cases.

The statute states:

       All complaints, except those based solely on the ground of irreconcilable
       differences, must be filed in the county in which the plaintiff resides, if the
       defendant be a nonresident of this state, or be absent, so that process cannot be
       served; and the manner of making such parties defendants so as to authorize a
       judgment against them in other chancery cases, shall be observed. If the
       defendant be a resident of this state, the complaint shall be filed in the
       county in which such defendant resides or may be found at the time, or in
       the county of the residence of the parties at the time of separation, if the
       plaintiff be still a resident of such county when the suit is instituted. A
       complaint for divorce based solely on the grounds of irreconcilable differences

                                              6
       shall be filed in the county of residence of either party where both parties are
       residents of this state. If one (1) party is not a resident of this state, then the
       complaint shall be filed in the county where the resident party resides.

(emphasis added). See Ross v. Ross, 208 So.2d 194, 196 (Miss. 1968) ( the word “residence”

means the “domicile” of the defendant and the words “or may be found at the time” applies

to either (1) a person that is a non-resident of Mississippi or (2) a citizen of Mississippi with

no actual domicile or with no fixed place of residence).

¶10.   This Court in Price v. Price, 202 Miss. 268, 271-72, 32 So.2d 124, 125 (1947), stated

“that the statute prescribing where the suit must be instituted is not a mere statute of venue that

may be waived but one of jurisdiction of the subject matter of the suit.” Id., at 271-72, 32

So.2d at 125 (citing Amis in Divorce in Mississippi, Sec. 240). See also Carter v. Carter,

278 So.2d 394, 396 (Miss. 1973) (referencing a review of authorities which state in effect

“that a divorce suit brought in the wrong county goes to the jurisdiction, and is not a mere

matter of venue”). Because this issue had never been presented to this Court for review prior

to its ruling in 1947, the Court adopted or “affirmed” this language in Mississippi. Price, 202

Miss. at 271-72, 32 So.2d at 125.

¶11.   In Price this Court further held that a divorce was not a common law action and thus any

power, authority or jurisdiction in this type of matter was a statutory creation. Id. at 272, 125.

Generally, when the common law provided no action, such as divorce, and the statutorily

created action places conditions upon these new statutory rights, then the conditions are

considered to be “an integral part of the right thus granted –are substantive conditions, the



                                                7
observance of which is essential to the assertion of the right." Id. See also Ross v. Ross, 208

So.2d 194, 195 (Miss. 1968). As to whether a case of this nature should be transferred to the

proper county or simply dismissed when venue is not proper, the Court of Appeals recently

addressed this issue in Stark v. Stark, 755 So.2d 31, 33 (Miss. Ct. App. 1999), holding:

       In domestic relations cases filed under Title 93 of the Mississippi Code of
       1972, the Mississippi Supreme Court has held that if proper venue is lacking,
       a bill for divorce must be dismissed, not transferred. Price v. Price, 202 Miss.
       268, 274, 32 So.2d 124, 126 (1947); Cruse v. Cruse, 202 Miss. 497, 500, 32
       So.2d 355, 355 (1947) (emphasis added). According to the Mississippi
       Supreme Court, compliance with Section 93-5-11 is mandatory...

However, this Court has held that if a court that has no subject matter jurisdiction in a case the

judgment is rendered void, not voidable. Duvall v. Duvall, 224 Miss. 546, 552, 80 So.2d 752,

754 (1955).

       B.      § 93-11-65

¶12.   Miss Code Ann. § 93-11-65 states in part:

       (1)(a) In addition to the right to proceed under Section 93-5-23, Mississippi
       Code of 1972, and in addition to the remedy of habeas corpus in proper cases,
       and other existing remedies, the chancery court of the proper county shall
       have jurisdiction to entertain suits for the custody, care, support and
       maintenance of minor children and to hear and determine all such
       matters.... Proceedings may be brought by or against a resident or nonresident
       of the State of Mississippi, whether or not having the actual custody of minor
       children, for the purpose of judicially determining the legal custody of a child.
       All actions herein authorized may be brought in the county where the child is
       actually residing, or in the county of the residence of the party who has actual
       custody, or of the residence of the defendant....

(emphasis added).

       C.      The Motion to Dismiss


                                                8
¶13.   On November 20, 2002, Mitchell filed a Motion to Dismiss the complaint for divorce.

He argued that pursuant to the venue statute § 93-5-11, the proper venue for filing the divorce

was Chickasaw County, the defendant's county of residence. In addition, Mitchell argued that

pursuant to Stark, the chancery court lacked jurisdiction to enter any orders in the action and

the action was not subject to transfer to Chickasaw County.

¶14.   On November 22, 2002, Monica responded to Mitchell’s motion claiming that venue

in Coahoma County was proper at least for an irreconcilable differences divorce pursuant to

§ 93-5-11. She also claims that she relied upon § 93-11-65 when she filed her complaint for

divorce and custody of the minor child.

¶15.   The chancellor found that Coahoma County had jurisdiction of the parties and the

subject matter for a divorce on the sole ground of irreconcilable differences pursuant to § 93-

5-11. Further, the chancellor found that the Coahoma Chancery Court had jurisdiction of the

custody and support of the child pursuant to § 93-11-65 (1)(a) and § 93-5-23 and that venue

in Coahoma County was proper. However, the chancellor found that the Coahoma County

Chancery Court did not have jurisdiction for a divorce based upon the fault ground of habitual

cruel and inhuman treatment pursuant to § 93-5-11. Therefore, the chancellor retained

jurisdiction of the complaint for divorce on the sole ground of irreconcilable differences;

dismissed the complaint on the contested fault ground of habitual cruel and inhuman treatment;

gave temporary custody of the child to Monica; set visitation for Mitchell and set payment of

temporary support for the child.

       D.     The Motion to Consolidate and Transfer

                                              9
¶16.   Prior to the chancellor’s written opinion on the Motion to Dismiss, Mitchell filed a

contested divorce in the Chancery Court of the First Judicial District of Chickasaw County,

where he still resided and the place the parties separated. After the chancellor filed the written

order concerning the motion to dismiss, Mitchell filed a motion to consolidate and transfer

including the issues concerning custody and support to Chickasaw County on January 16, 2003.

The chancellor denied the motion and ruled the following in part:

       [B]ecause this Court previously retained jurisdiction of the claim for divorce
       based upon the grounds of irreconcilable differences as well as all matters
       related to the care, custody and maintenance of the minor child pursuant to
       Miss. Code Ann. 93-11-65, that the instant motion is not well taken and the
       same should be denied.

                                        The Arguments

¶17.   Mitchell's and Monica’s arguments to this Court do not neatly follow the issues as

presented in the statement of issues. Nevertheless, the following is a summary of the main

arguments as written by each party.

¶18.   Mitchell argues that pursuant to § 93-5-11, the proper place for filing Monica’s divorce

complaint was Chickasaw County, the place of his residence. He claims that the complaint

filed by Monica relied upon § 93-5-1 (for a fault ground) and § 93-5-2 (irreconcilable

differences) only. He argues that Monica tried to avoid the mandatory filing requirements of

§ 93-5-11 by arguing proper venue for irreconcilable differences and that Monica never

asserted her custody claim, pursuant to § 93-11-65, until after he filed his motion to dismiss.

Monica's divorce claim never referenced Miss. Code Ann. § 93-11-65.



                                               10
¶19.   Mitchell also contends that the chancery court did not have proper jurisdiction of any

action pursuant to § 93-11-65 because Monica did not file any pleadings citing that statute.

What is more, Mitchell claims that when he filed the motion to dismiss, no child custody and

support order had been entered by any chancery court.

¶20.   Further, Mitchell argues that the plain reading of § 93-11-65 was not intended to grant

jurisdiction to a divorce proceeding. Mitchell submitted that the statute itself states in part

that relief pursuant to § 93-11-65 is “[i]n addition to the right to proceed under Section

93-5-23....” Miss. Code Ann. § 93-5-23 states in part :

       When a divorce shall be decreed from the bonds of matrimony, the court may,
       in its discretion, having regard to the circumstances of the parties and the nature
       of the case, as may seem equitable and just, make all orders touching the
       care, custody and maintenance of the children of the marriage, and also
       touching the maintenance and alimony of the wife or the husband, or any
       allowance to be made to her or him, and shall, if need be, require bond, sureties
       or other guarantee for the payment of the sum so allowed.

(emphasis added). Accordingly, Mitchell argues that § 93-5-23 outlines the chancery court

authority to address the care, custody and maintenance of a child solely within the context of

divorce and not as a right to proceed with a divorce proceeding. He claims that § 93-11-65

allows for the custody, care and maintenance of children when there is no pending divorce, but

it is not meant to circumvent the venue requirements of § 93-5-11.

¶21.   Mitchell makes the further arguments of forum shopping and judicial economy. He

argues that if this Court upholds Monica’s actions then pursuant to § 93-11-65 a divorce action

may be brought in the county where the child is actually residing, or in the county of the

residence of the party who has actual custody, or of the residence of the defendant, where the

                                              11
parties have children. Additionally, Mitchell argues that since the statute has no minimum

period of time for residency, a parent could take a child to any county immediately file a

custody and support action pursuant to § 93-11-65 and include a claim for divorce. In effect,

the parent could circumvent the divorce venue requirements of § 93-5-11 altogether. ¶a)

       Monica appears to contend two different issues. The first argument appears to be that

when a chancellor takes proper jurisdiction of the child custody and support, then the

chancellor can also take jurisdiction of a contested divorce. The second argument, presumably

in the alternative, concerns the venue for a divorce on the sole ground of irreconcilable

differences, that being the county or counties of residence of either spouse. She claims that

in her case the venue requirement of § 93-11-65 for the custody and support of the child has

been satisfied as has the venue requirement of § 93-5-11 for a divorce on the sole ground of

irreconcilable differences.

¶22.   Monica points out that § 93-11-65 has no minimum time period requirement for

residency. In addition, she admits that while the document may have been better pled if she

had cited § 93-11-65 specifically since the jurisdiction rests on the statute which is not cited

in the pleadings. She argues that the document satisfied the requirement of the statute by

stating that she and her child were residing in Coahoma County and that she sought relief in the

form of custody and support. As for the temporary restraining order, Monica argues that the

chancery court made a provision for the custody of the child by prohibiting Mitchell from

having contact with the child. She also claims that the chancery court specifically cited § 93-

11-65 in a later order granting temporary relief.

                                              12
¶23.   Monica argues that even if Coahoma County had dismissed the complaint because it was

not properly filed, she could have refiled the complaint. Monica argues that the chancellor's

decision to allow the divorce to not be dismissed on the sole ground of irreconcilable

differences avoids a "waste of judicial resources." As for forum shopping, Monica agrees that

Mitchell has a valid argument that conferring jurisdiction for a contested divorce through § 93-

11-65 could lead to forum shopping.           She suggests that the chancellor can make a

determination of “good faith” when a contested divorce is filed with a request for child custody

and support under § 93-11-65. In addition, Monica argues that the words “all such matters”

contained in § 93-11-65 may be reasonably interpreted to mean a contested divorce. Further,

she argues that allowing such an interpretation of the statute would avoid multiplicity and

conflict between two chancery courts.

                                        Legal Analysis

¶24.   Clearly, Miss. Code Ann. § 93-5-11 provides for both contested and uncontested

divorces. For a contested divorce, where as in this case the defendant is a resident of

Mississippi, a divorce complaint must be filed in the county in which the defendant (1) resides,

(2) may be found, or (3) in the county where the couple separated provided the plaintiff

remains a resident of that county at the time of the filing of the complaint. However, if both

parties are residents of the State of Mississippi and a complaint is filed solely for

irreconcilable differences, then the complaint may be filed in the county or counties where

either party resides at the time of filing.



                                              13
¶25.   In the case sub judice, residency of the State of Mississippi was not at issue. Monica

initially filed for divorce on the fault ground of habitual cruel and inhuman treatment and in the

alternative for irreconcilable differences. Therefore, a complaint for divorce on the ground

of habitual cruel and inhuman treatment should be filed in the county in which the defendant

resides, may be found or in the county where the couple separated provided the plaintiff

remains a resident of that county at the time of the filing of the complaint. Mitchell resided

in Chickasaw County at all times. That being true, the fault ground of divorce should have been

filed in Chickasaw County. See Miss. Code Ann. § 93-5-11.

¶26.   In contrast, a complaint filed solely on the ground of irreconcilable differences may

be filed in the county or counties of residence of either party. At the time Monica filed the

complaint she had been in Coahoma County for approximately 48 hours and Mitchell, of

course, resided in Chickasaw County. Therefore, an irreconcilable difference divorce would

be proper in either Coahoma or Chickasaw counties.

¶27.   The problem of course with the case sub judice is that the chancellor dismissed the fault

ground of divorce and then retained the divorce on the irreconcilable differences claim. In

fact, the chancellor acknowledged that the Chancery Court of Coahoma County had no

jurisdiction on the fault ground of divorce, habitual cruel and inhuman treatment, under Miss.

Code Ann. § 93-5-11. By dismissing the contested ground of divorce which should have been

filed in Chickasaw County, the residence of Mitchell as the defendant, the chancellor kept the

divorce claim viable. In effect, the chancellor “cured” Monica’s jurisdiction problem.

Retaining the action solely on the ground of irreconcilable differences, which has a different

                                               14
requirement of filing in the county of either spouse, here being either Chickasaw or Coahoma,

the chancellor allowed an otherwise improper filing of a contested divorce in Coahoma

County, based on lack of jurisdiction, to remain alive as a proper filing of an irreconcilable

divorce.

¶28.   This Court has held that a statutorily created action, such as divorce, places conditions

on these rights that are integral, substantive conditions. Price, 202 Miss. at 271-72, 32 So.2d

at 125. Further, the statute that prescribes where the suit is filed is not merely a “statute of

venue that may be waived but one of jurisdiction of the subject matter of the suit.” Id.

Compliance with Miss. Code Ann. § 93-5-11 is mandatory. Stark, 755 So.2d at 33. We find

that the filing of the contested divorce in Coahoma County was incorrect pursuant to the

mandatory requirements in Miss. Code Ann. § 93-5-11. This Court finds that Chickasaw

County was the only correct county for filing the divorce under the facts as presented sub

judice. The chancellor correctly determined that Coahoma County did not have jurisdiction

over the contested divorce. However, we find that the chancellor could not “cure” the

jurisdictional error by simply dismissing the contested divorce and retaining the irreconcilable

differences divorce. This Court finds that since the chancellor had no jurisdiction for the

contested divorce, the chancellor had no jurisdiction over the entire action. Because the

chancellor had no jurisdiction over the divorce the case should have been dismissed and

cannot be transferred. Stark v. Stark, 755 So.2d at 33. Without the subject matter

jurisdiction by a court any judgment is considered void, not voidable. Duvall v. Duvall, 224



                                              15
Miss. at 552, 80 So.2d at 754. Accordingly, we find that the chancellor erred by failing to

grant Mitchell’s motion to dismiss in toto as to the issue of divorce.

¶29.   The question remains of whether § 93-11-65 may confer venue and jurisdiction over

a contested divorce. This Court finds once again that the divorce provisions in the Mississippi

Code are statutorily created rights with specified conditions. Price, 202 Miss. at 271-72, 32

So.2d at 125. In divorce matters, the statute that prescribes where the suit is filed is not

merely a “statute of venue that may be waived but one of jurisdiction of the subject matter of

the suit.” Id. This Court has held that compliance with Miss. Code Ann. § 93-5-11 is

mandatory. Stark, 755 So.2d at 33. Miss. Code Ann. § 93-11-65 is a statutory provision which

provides relief for the “custody, care, support and maintenance of minor children.” The statute

provides that actions of this nature “may be brought in [1] the county where the child is actually

residing, or [2] in the county of the residence of the party who has actual custody, or [3] of the

residence of the defendant.” Miss. Code Ann. § 93-11-65. However, the mandatory filing

provisions for contested and irreconcilable differences divorces are clearly stated in § 93-5-

11.    We find that the statutory requirements for proper filing of a divorce action are

straightforward and clear and may not be circumvented by an attempt to expand § 93-5-11

through the use of § 93-11-65, nor indirectly through § 93-5-23. To find otherwise would

negate the need for § 93-5-11 and create judicial conflict.

¶30.   In the case sub judice, Monica filed the contested divorce in the incorrect county. This

Court finds that Monica’s divorce action should be dismissed in toto, thereby prohibiting her

contested divorce action and prohibiting the attempt to "cure" the irreconcilable differences

                                               16
divorce. To reiterate, we emphasize that the chancellor had absolutely no jurisdiction over the

divorce action filed by Monica. The divorce action lacked jurisdiction on contested grounds

and lacked jurisdiction on the grounds of irreconcilable difference. Mitchell did not and would

not consent to a divorce on the grounds of irreconcilable differences. He later in fact filed his

own contested divorce in Chickasaw County. This Court finds that the chancellor should have

stopped the action in its tracks and dismissed the claim in its entirety once it was established

that Monica incorrectly filed the action in Coahoma County instead of the proper county,

Chickasaw.

¶31.   We find that Monica cannot attempt to again “cure” her failure to follow § 93-5-11 by

relying upon the § 93-11-65 filing requirements for the care, custody, support and maintenance

of a child. This Court also finds that any argument to the effect that the language of § 93-11-

655 pertaining to “all such matters” confers jurisdiction on an otherwise incorrect chancery

court to hear a contested divorce is clearly not correct. Again, the requirements pursuant to

§ 93-5-11 are clear, mandatory and may not be circumvented through § 93-11-65.

Accordingly, we find that § 93-11-65 may not assume jurisdiction over a contested divorce.

¶32.   There are the final issues of custody and support and the motion to consolidate and

transfer. Miss. Code Ann. §§ 93-5-11 and 93-11-65 both provide for the proper venue and

jurisdiction for a child custody matter. This Court has already addressed the issue that the



       5
         Miss. Code Ann. § 93-11-65 states in part “...the chancery court of the proper county
shall have jurisdiction to entertain suits for the custody, care, support and maintenance of
minor children and to hear and determine all such matters....” (emphasis added).

                                              17
divorce should have been filed in Chickasaw County. When there is an issue of child custody,

support and maintenance, however, § 93-11-65 provides that the action may be brought in (1)

the county where the child is actually residing, or (2) in the county of the residence of the party

who has actual custody, or (3) of the residence of the defendant. Therefore, the parties argued

that the custody issue in this case could be brought in either Coahoma County6 or in Chickasaw

County, the place of residence of Mitchell. Since the filing of the divorce, temporary custody

and temporary restraining order by Monica, the Coahoma County chancellor has issued two

orders providing for temporary care of the child. It is noted that since the initial filing a

second child was born in 2003 and a chancellor will have to consider this child as well. Prior

to any further proceedings this Court granted the interlocutory appeal to ascertain the correct

venue and jurisdiction. We find that a proper reading of all the three statutes, § § 93-5-11, 93-

5-23 and 93-11-65, does not provide for a custody matter to proceed under § 93-11-65 when

a divorce is pending. Mitchell argued that the plain reading of § 93-11-65 was not intended to

grant jurisdiction in a divorce proceeding and that the statue is “[i]n addition to the right to

proceed under Section 93-5-23.” Of course, § 93-5-23 provides that “[w]hen a divorce shall

be decreed from the bonds of matrimony, the court may, in its discretion,...make all orders

touching the care, custody and maintenance of the children....” Reading the statutes together,

§ 93-5-23 concerns divorce actions and the court’s ability to make orders touching child

custody, whereas, § 93-11-65 is in addition to the remedies already available in § 93-5-23.


       6
         Mitchell argues that Monica was in Coahoma County less than 48 hours and thus she
and the child were not residents at the time of the initial pleadings.

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The key to these statutes is that § 93-5-23 provides for the child's care and custody in a divorce

situation and § 93-11-65 states that it is an alternative, in addition to § 93-5-23. Again, the

divorce action may not be transferred to Chickasaw County because the Coahoma County

chancellor never had jurisdiction for the divorce, therefore, there is nothing to transfer in

terms of the divorce. The evidence to prove the issues of the contested divorce, custody,

support and any other matter will be substantially the same. This Court finds that pursuant to

the statutes, a custody matter may not proceed under § 93-11-65 when a divorce is pending.

Since the facts in this case showed that the chancellor had no jurisdiction in the divorce action

and because a custody matter may not proceed under § 93-11-65 when there is a pending

divorce, the chancellor should have granted the motion to dismiss in toto. Accordingly, the

chancellor should never have reached the issue and ruled on Mitchell’s motion to consolidate

and transfer.

                                        CONCLUSION

¶33.   For the foregoing reasons, this Court finds that the Chancery Court of Coahoma County

correctly ruled that it lacked jurisdiction on the issue of the contested divorce of habitual cruel

and inhuman treatment and erred in ruling that it had jurisdiction in the divorce on the ground

of irreconcilable differences. We find that the chancellor should have granted Mitchell’s

motion to dismiss in toto. This Court finds that the custody filing requirements of § 93-11-65

may not be expanded, used as a substitute, “cure” or used to circumvent the divorce filing

requirements of § 93-5-11 under the facts of the case sub judice. Accordingly, the trial court

erred by not dismissing the case in toto and consequently erred by ruling on the motion to

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consolidate and transfer. Had the action been dismissed as this Court finds is the correct

procedure, the trial court would have never reached the later issue of the motion to consolidate

and transfer. This Court does not promote forum shopping and seeks to maintain judicial

economy whenever practical and possible in legal actions. We affirm the chancellor's

judgment to the extent that it dismissed the fault ground of this divorce action for lack of

jurisdiction. However, we reverse the chancellor's judgment to the extent that it did not

dismiss the remainder of the action for lack of jurisdiction, and we render judgment here

dismissing the entire Coahoma County action for lack of jurisdiction.

¶34.   AFFIRMED IN PART; REVERSED AND RENDERED IN PART.

     SMITH, C.J., WALLER, P.J., CARLSON, GRAVES AND DICKINSON, JJ.,
CONCUR. COBB, P.J., CONCURS IN RESULT ONLY. DIAZ, J., NOT
PARTICIPATING.




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