IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO. 2013-CA-01801-COA BRADLEY KABAT NURKIN APPELLANT/CROSSAPPELLEE

v. EVA CAROLINE PARKMAN NURKIN APPELLEE/CROSSAPPELLANT

DATE OF JUDGMENT: 09/20/2013 TRIAL JUDGE: HON. JOHNNY LEE W ILLIAMS COURT FROM W HICH APPEALED: FORREST COUNTY CHANCERY COURT ATTORNEY FOR APPELLANT: S. CHRISTOPHER FARRIS ATTORNEYS FOR APPELLEE: SHAW N M. LOW REY ERIK M. LOW R EY NATURE OF THE CASE: CIVIL - DOMESTIC RELATIONS TRIAL COURT DISPOSITION: GRANTED APPELLEE’S MOTION TO MODIFY VISITATION DISPOSITION: AFFIRMED IN PART, REVERSED AND RENDERED IN PART, AND VACATED IN PART ON DIRECT APPEAL; AND AFFIRMED ON CROSS-APPEAL - 04/07/2015 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE LEE, C.J., BARNES AND MAX WELL, JJ. LEE, C.J., FOR THE COURT:

FACTS AND PROCEDURAL HISTORY ¶1. Bradley

Kabat Nurkin (Brad) and Eva Caroline Nurkin (Caroline) were divorced in Tennessee in 2 011. C aroline w as granted custody of the couple’s m inor son, Jake, who was bo r n i n 2003. Eventually both p arties relocated. Caroline a nd Jake m oved to Hattiesburg,Mississippi, and Brad m oved to Gainesville, Georgia.

¶2. O n N o v e mb e r 1 4 , 2012, Caroline f iled a petition in the F orrest County Chancer y Court s eeking a m odif

ication of Jake’s v isitation schedule. Caroline then f iled an am ended petition, asking f

or Brad to be held in contem p t f or his f ailure t o reim

burse h er f

or Jake’s

m edical expenses and f

or a r econsideration of c hild support. Brad f iled a m otion to dism iss Caroline’s petitio n s, arguing lack o f subject-m atter and personal jurisdiction. The chancellor issued an order r etaining jurisdiction over the m odif ication issue, but dism issing Caroline’s
contem pt and child-support claim s. ¶3. Af ter a hearing, the chancellor issued a judgm ent on Septem ber 2 0, 2013, m odif

y ing J a k e ’ s v i sitation schedule. Both parties f iled p ost-trial m otions, which the chancello r dism issed. Brad f

iled his notice o f a p p e a l o n October 21, 2013. On Novem ber 2 2, 2013, Brad f iled a m otion f

or contem

pt and asked the chancellor t o clarif y his judgm ent. On Decem ber 16, 2 0 1 3 , the chancellor issued an opinion that clarif ied his previous j udgm ent. Brad then f

iled an am ended notice of appeal. ¶4. In his appeal, Brad argues that the c h ancellor: (1) did not have jurisdiction to m odif y the T ennessee judgm e nt; (2) erred by m odif y ing visitation; (3) erred by restricting him f rom f ly ing Jake in a private p l ane; ( 4) erred by deny ing his m o tion f o r clarif ication; a nd (5) erred by m odif y ing the f i rst judgm ent af

ter a notice of

appeal had been f

iled. ¶5. Caroline f

iled a c r oss-appeal, arguing the chancellor should not have dism issed her request to m odif

y child support.

S TANDARD OF REVIEW

2¶6. In dom e stic-relations cases, including cases i nvolving visitation, we “will n ot disturb

a chancellor ’ s j u d g m e n t w h e n s u p p o r t ed by substantial evidence unless the chancellor abused his discretion, was m anif

estly wrong [ or] clearly erroneous, or [ applied] an erroneous legal standard[ .]” Rolison v. Rolison , 105 So. 3d 1136, 1137 (¶4) (Miss. Ct. App. 2012) (citations and quotation s o m itted). W e review questions of law, including jurisdictional i ssues, de

novo. S hadden v. Shadden , 11 So. 3d 761, 762 (¶7) (Miss. Ct. App. 2009). DISCUSSION I. JURISDICTION ¶7. In his f

irst issue on appeal, B r a d c o n t e n d s that p ursuant to the Unif orm Interstate F a mi l y S u pport A ct ( UIFSA), the chancellor d id not have jurisdiction to m odif y th e Tennessee judgm ent that set the visitation sc h e d u l e . The UIFSA does govern actions concerning child support. See Miss. Code A nn. §§ 93

- 2 5

- 1 t o -117 (Rev. 2013). The chancellor recognized this and determ ined that he did not have j urisdiction over Caroline’s child-support claim

. See Miss. Code Ann. § 93-25-101(1)(a) (Rev. 2013). ¶8. However, c hild-custody p roceedings, including those involving visitation, f all under the jurisd i c t i on of the Unif orm Child Custody Jurisdiction and Enf orcem e nt Act, not the UIFSA. See Miss. Code A nn. § 93-27-102(d) ( Rev. 2013). In this instance, jurisdiction over the v isitation claim w as proper in Mississippi because the chancellor had jurisdiction to m ake

an initial determ ination, and no one involved lived in Tennessee. Miss. Code Ann. § 93-27- 203(b) (Rev. 2013). This issue is without m erit. II. MODIFICATION

3¶9. Brad argues that the chancellor lacked suf f i c i e n t e vidence to m odif

y visitation. In order to m odif

y a visitation s chedule, “[ a]ll that need be shown i s that there is a prior decree providing f

o r reasonable visi t a tion rights [ that is not] working[ ,] and that it i s in the best interest[ ] of the child[ ]. . . .” Cox v. Moulds , 490 So. 2d 866, 869 (Miss. 1986). ¶10. The original judgm ent gave Brad visitation with Jake a m inim um of eighty day s per y ear, with s ixty of those day s to be exercised during the sum m e r . C aroline produced evidence that: Jake suf

f ered f rom autism spectrum diso r der, which caused developm ental problem s regarding his speech and social skills; he needs routine and s t ability in order to f unction; he is on a special d iet; he sees a s peech therapist twice a week a n d a b e h a vioral therapist once every two weeks; Jake h ad n ot been receiving therapy d uring his s u m m ertim e visits with Brad; there were p roblem s with Jake’s h om e w ork during his visitation with Brad; and the c urrent v isitation schedule was not f ixed and theref

o re t oo unpredictable f

or Jake’s needs. ¶11. The chancellor set a f ixed v isitation schedule d uring the sum m er and o ne weekend a

m onth during the school y ear s o as t o create a p r e d i c t a ble routine f or Jake and to avoid unnecessary school a

bsences. W e f

ind that the chancellor’s ruling was supported b y substantial evidence and not m anif estly wrong. III. VISITATION RESTRICTIONS ¶12. Brad f

urther argues that the chancellor erred by restricting Brad f

r om f ly ing Jake in

a p rivate airplane during his visitation. The chancellor ordered that Jake is prohibited f rom f ly ing on a private p l ane, whethe r Brad or another individual was the pilot. H owever, the

4chancellor f urther ordered that Jake could r i d e in a car operated by a licensed d river, or

accom pany a parent on a com m e rcial plane or train. ¶13. Brad cites to M

ord v. P eters , 571 So. 2d 981 (Miss. 1990), to support h i s p o s i t i on. In M ord , the chancellor restricted the f a ther’s ability to f

ly his children in his private plane. Id. at 983. The Mississippi Suprem e Court reversed the chancellor’s decision and f ound that absent any showing that f ly i ng w i t h t h e f

ather w ould be d angerous or that the f ather was acting without concern f

or the children’s well being, neither the m other nor the chancellor had the right to r estrict the children’s activities d uring visitation with their f ather. Id

. at 984- 85. In t h i s i n s t a nce, there was no testim ony other than Caroline’s unf ounded f ears that Brad’s operation o f a plane would endanger Jake’s lif e. As the suprem e court stated in Mord , “W ere we to af

f irm the chancellor’s position

. . . endless litigation p ossibly would result. W e

can im agine custodial parents com ing to court based o n unjustif ied f ears and apprehensions and attem p t[ ing] to prohibit their children f rom learning h ow to drive, f ish, hunt[ ,] or swim when a non-custodial parent is e xercising his

. . . visitation.” Id

. at 986. Furtherm ore, Brad testif i ed that J a ke enjoy ed f

ly ing with him

. There was no testim ony that Jake was scared or anxious when f

ly ing. ¶14. “A non-custodial parent m ay determ ine which extra[ ]curricular activit i e s t h e child participates in during visitation, including certain activities of which th e c u stodial parent disapproves.” G ivens v. N icholson , 878 So. 2d 1073, 1076 ( ¶14) (Miss. Ct. App. 2004). Finding the chancellor’s decision erroneous, we reverse and render on this issue. IV. MOTION TO CLARIFY

5¶15. Af

ter the chancellor issued his judgm ent, Brad f iled a m otion pursuant to Mississippi Rule of C ivil Procedure 60(a) asking the c h ancellor to clarif y h is original judgm ent and specif y which weekend Brad was entitled to exercise his visitation. The chancellor denied this m otion. R u le 6 0 ( a) ap p lies to “clerical m istak es in j u d g m en ts, o rd ers, o r o th er p arts o f th e reco rd an d erro rs th e rein arisin g f ro m o v ersig h t o r o m issio n . . . .” In h i s m o tio n , B r ad d id n o t a lleg e th at th ere w ere clerical erro rs in th e j u d g m en t. B rad ’s m o tio n w as in actu ality

a r eq u est to alter o r am en d th e j u d g m en t. M ississip p i R u le o f C iv il P ro ced u re 5 9 (e) g o v ern s th ese req u ests an d req u ires th a t th e m o tio n b e f iled n o l ater th an ten d ay s af ter th e en try

o f

a j u d g m en t. S in ce B r ad ’s m o tio n w as f i led m o r e th an ten d ay s af ter th e f in al j u d g m en t, w e f in d n o erro r b y

th e ch an cello r in d en y in g it. V. MODIFICATION OF JUDGMENT ¶16. Brad contends that t h e c h a n c e l l o r d id n ot have jurisdiction to m odif y the original judgm ent while the appeal was pending. As previously stated, t h e c h a n c ellor entered the order m odif

y ing v isitation on Septem ber 2 0, 2013. B rad t h e n f iled a notice of appeal on October 21, 2013, which w as the day his p ost-trial m otion was denied. O n N o v e mb e r 22, 2013, Brad f

iled his m otion f

or contem

pt asking f

or clarif ication regarding his weekend visitation schedule. O n D e cem ber 16, 2 013, the chancellor m o dif ied the judgm ent and clarif i ed Brad’s weeken d v i s itation. The chancellor also awarded Brad one extra m onthly

v i s i t a t ion if it occurred in Hattiesburg. Brad now a r gues that the chancellor did not h a v e jurisdiction to m odif

y the original judgm ent while i t was o n appeal. W e note t h a t B rad sought clarif

ication of h is visitation schedule, and af ter receiving extra v isitation, he is now

6arguing that the chancellor had no jurisdiction to order the extra visitation while the appeal

was pending. ¶17. The suprem e court has h eld tha t o r d i n a r ily the f iling of a n otice of appeal transf ers jurisdiction of a m atter f

rom the lower court t o the appellate court, and the lower court no longer has the a

uthority to am end, m odif

y , or reconsider its judgm ent. M cNeese v. McNeese , 129 So. 3 d 125, 128 (¶7) (Miss. 2013). If an appeal has no supersedeas b ond, as i n this case,

a p arty m ay execute on the judgm ent, but the lower court cannot “ broaden, am end, m odif y , vacate, c larif

y , or rehear the decree.” McNeil v. Hester , 753 So. 2d 1057, 1076 (¶68) (Miss. 2000). I n McNeese , the suprem e court h eld th a t a n agreed order e ntered b y a chancellor

w h ile an appeal was pending “m erely specif ied how the previous [

j]udgm ent o f [ d]i v o r c e should be satisf

ied.

. . . [ It] did not broaden, am end, m odif y , vacate, or clarif

y the j udgm ent through the [ a]greed [ o]rder.” McNeese , 1 29 So. 3d a t 1 29 (¶12). However, in this case, the chancellor m odif

ied the original judgm ent by a w a r ding Brad extra visitation w i t h J a k e. Consequently , the order entered Decem ber 16, 2013, is void and m ust be vacated. VI

. CROSS-APPEAL ¶18. On cross-appeal, Caroline argues that the chancellor s hould n ot have dism issed her request to m odif

y c hild support. Although Caroline recognizes t h e a p p l i c a bility of the UIFSA
to m atters involving child support, she w ould have this Court disregard the j u r i s d i c tional requirem ents of the UIFSA and require t h e c h a n c e l lor to h ear the request. Caroline could have avoided this problem by taking the appropriate steps u nder the UIFSA to e nsure the chancery court h ad jurisdiction, f irst by r e g istering the T e nnessee judgm ent in M ississippi.

7Miss. Code Ann. § 9 3 -25-83 (Rev. 2013). Regardless, it is not within this Court’s power to

disregard jurisdictional requirem ents set f orth by our Legislature. ¶19. T H E J U D GMENT OF THE FORREST COUNTY CHANCERY COURT I S AFFIRMED IN PART, REVERSED AND RENDERED IN PART, AND VACATED IN PART ON DIRECT APPEAL, AND AFFIRMED ON CROSS-APPEAL. ALL COSTS OF THIS APPEAL ARE ASSESS E D E Q U A L L Y BETWEEN THE P ARTIES. IRVING A ND GRIFFIS, P.JJ., BARNES, I S HEE, ROBERTS, CARLTON, MAX W ELL AND FAIR, JJ., CONCUR. JAMES, J., CONCURS IN PART.

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