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IN THE COURT OF APPEALS 05/21/96 OF THE STATE OF MISSISSIPPI
NO. 95-CA-00421 COA

CHARLES MCNAIR AND LAURA MCNAIR APPELLANTS v. DEPARTMENT OF HUMAN SERVICES APPELLEE

THIS OPINION IS NOT DESIGNATED FOR PUBLICATION AND MAY NOT BE CITED, PURSUANT TO M.R.A.P. 35-B

TRIAL JUDGE: HON. ROBERT G. EVANS COURT FROM WHICH APPEALED: CIRCUIT COURT OF COVINGTON COUNTY ATTORNEY FOR APPELLANTS: TRAVIS H. BRYANT ATTORNEY FOR APPELLEE: DEBORAH D. KENNEDY NATURE OF THE CASE: CHILD SUPPORT: RECOVERY OF COLLECTED PAYMENTS TRIAL COURT DISPOSITION: DISMISSED WITHOUT PREJUDICE

BEFORE THOMAS, P.J., BARBER, AND PAYNE, JJ. PAYNE, J., FOR THE COURT: Charles McNair filed suit in the Circuit Court of Covington County seeking to recover funds that he

claims were wrongfully collected by the Department of Human Services of Covington County. The circuit court, finding that this action should have been filed in chancery court, dismissed McNair's action without prejudice upon motion by DHS. McNair argues that the trial court erred in dismissing his cause. Finding that because this was not a final judgment this Court does not have jurisdiction of this appeal, we dismiss the appeal.

STATEMENT OF THE FACTS On March 11, 1980, in its "Order of Filiation and For Child Support," the Chancery Court of Covington County declared Charles McNair to be the legal father of two children born to Laura Gatlin and ordered McNair to pay $150 per month in child support to the Covington County Department of Human Services to reimburse DHS for funds it had paid to Laura Gatlin under AFDC for the support of the two children. The AFDC payments stopped in August, 1984, when Charles McNair married Laura Gatlin. The county DHS continued to collect monies from Charles McNair in order to recover all monies paid to Laura Gatlin in the form of AFDC benefits. McNair filed the present action in the Circuit Court of Covington County seeking to recover funds that he claims were collected by DHS over and above what DHS supplied to Laura Gatlin as AFDC. DHS filed a motion to dismiss based, in part, upon lack of subject matter jurisdiction. The circuit court held a hearing on the motion and granted the motion dismissing the cause without prejudice. DISCUSSION The circuit court acknowledged in its judgment of dismissal that the basis for the suit originated in the Chancery Court of Covington County under its "Order of Filiation and For Child Support." The circuit court also recognized that the chancery court would be the more appropriate forum and dismissed the matter without prejudice. Rule 12(h)(3) of the Mississippi Rules of Civil Procedure provides the basis for the circuit court's action and states: Whenever it appears by suggestion that the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action or transfer the action to the court of proper jurisdiction.

M.R.C.P. 12(h)(3). The comment to Rule 12(h) includes: This provision preserves the traditional Mississippi practice of transferring actions between the circuit and chancery court's, as provided by Miss. Const.

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