Williamson v. Williamson
| Docket Number: | 2004-CA-02519-COA Linked Case(s): 2004-CA-02519-COA ; 2004-CT-02519-SCT |
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| Court of Appeals: |
Opinion Link Opinion Date: 03-13-2007 Opinion Author: ISHEE, J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Modification of custody - M.R.C.P. 60(b)(1) - Writ of habeas corpus Judge(s) Concurring: KING, C.J., LEE AND MYERS, P.JJ., IRVING, CHANDLER, GRIFFIS, BARNES, ROBERTS AND CARLTON, JJ. Procedural History: Bench Trial Nature of the Case: CIVIL - CUSTODY |
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| Trial Court: |
Date of Trial Judgment: 12-10-2004 Appealed from: WARREN COUNTY CHANCERY COURT Judge: Vicki Barnes Disposition: MOTION FOR MODIFICATION OF CUSTODY DENIED. Case Number: 2001-177GN |
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| Party Name: | Attorney Name: | |||
| Appellant: | JENNIFER ERIN WILLIAMSON |
PATRICIA PETERSON SMITH |
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| Appellee: | WILLIAM DALE WILLIAMSON | JENNIFER POWELL FORTNER |
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Synopsis provided by:  If you are interested in subscribing to the weekly synopses of all Mississippi Supreme Court and Court of Appeals hand downs please contact Tammy Upton in the MLI Press office. |
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| Topic: | Modification of custody - M.R.C.P. 60(b)(1) - Writ of habeas corpus |
| Summary of the Facts: | When Dale and Jennifer Wilson divorced, Dale was given primary physical custody of the only child of the marriage. After the child was evaluated at Hudspeth Regional Medical Center, and it was recommended that she be placed in her home school district’s early intervention program, Jennifer filed a petition to modify the divorce decree seeking to be named the primary custodial parent. The chancery court denied the petition, and Jennifer did not file a timely appeal from this order. After retaining different counsel, Jennifer filed a M.R.C.P. Rule 60(b)(1) motion for relief from judgment or in the alternative modification of custody. Jennifer also filed a petition for habeas corpus seeking temporary custody of the child until a hearing upon the M.R.C.P. 60(b)(1) motion could be had. The chancery court denied the M.R.C.P. 60(b)(1) motion and found the habeas corpus petition was moot. Jennifer appeals. |
| Summary of Opinion Analysis: | Jennifer makes several arguments going to the weight of the evidence in the first final judgment. These facts are beyond appellate review of the Rule 60(b)(1) motion. She also makes arguments concerning misrepresentations by her former husband and his girlfriend. However, the chancellor did not abuse her discretion with regard to the finding concerning these misrepresentations. Jennifer also argues that the chancellor erred by denying her custody based on the fact that Dale and his girlfriend had moved to Alaska. For a change in custody, the preponderance of evidence must show both a change in circumstance and an adverse effect by the change. The best interest of the child is the polestar consideration. Witnesses from Alaska testified that the child was benefitting from educational and medical services. Based upon this evidence, the chancellor was not manifestly in error in denying the change in custody. Jennifer also argues that the chancellor erred in finding the request for the writ of habeas corpus was moot. Because the chancellor entered a final order there is no logical reason for the writ to be enforced, and Jennifer fails to cite any authority for this proposition to the contrary. |
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