C.M. v. R.D.H., Sr.
| Docket Number: | 2005-CA-02037-COA | |
| Court of Appeals: |
Opinion Link Opinion Date: 01-30-2007 Opinion Author: CHANDLER, J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Child custody - Due process - Notice - Temporary restraining order - M.R.C.P. 65(b) - Jurisdiction - Untimely motion - M.R.C.P. 60(b)(1) & (6) - Sanctions - M.R.C.P. 11(b) Judge(s) Concurring: KING, C.J., LEE AND MYERS, P.JJ., IRVING, GRIFFIS, BARNES, ISHEE, ROBERTS AND CARLTON, JJ. Procedural History: Bench Trial Nature of the Case: CIVIL - CUSTODY |
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| Trial Court: |
Date of Trial Judgment: 10-24-2005 Appealed from: Hinds County Chancery Court Judge: William H. Singletary Disposition: CHANCELLOR VACATED PREVIOUS ORDER TERMINATING PARENTAL RIGHTS; REINSTATED PARENTAL RIGHTS AND AWARDED CUSTODY OF MINOR CHILDREN Case Number: G-2004-282 |
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| Party Name: | Attorney Name: | |||
| Appellant: | C.M., INDIVIDUALLY AND ON BEHALF OF R.D.H., JR., A MINOR, AND M.B.V.H., A MINOR |
TINA LORRAINE NICHOLSON |
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| Appellee: | R.D.H., SR. | KERI TEMPLE HARALSON |
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| Topic: | Child custody - Due process - Notice - Temporary restraining order - M.R.C.P. 65(b) - Jurisdiction - Untimely motion - M.R.C.P. 60(b)(1) & (6) - Sanctions - M.R.C.P. 11(b) |
| Summary of the Facts: | In 1998, R.D.H., Sr. pled guilty to physically assaulting four minor children, all of whom were unrelated to him. While serving time for this crime in the Morton city jail for ninety days, he was convicted of auto theft for stealing a police vehicle and served an additional sentence in Parchman. During his incarceration, he and his wife, C.M., divorced. The couple have two children. In 1994, C.M. sought to terminate R.D.H., Sr.’s parental rights. She served R.D.H., Sr. through process by publication, stating that she did not know R.D.H., Sr.’s whereabouts since his release from prison. The Hinds County Chancery Court terminated the parental rights of R.D.H., Sr. as to his two minor children, and C.M.’s new husband adopted the children the same day. Approximately one year later, R.D.H., Sr. contested these judgments. The court granted R.D.H., Sr. temporary custody of two children. R.D.H., Sr. also filed a motion for contempt. The court determined that it did not have proper jurisdiction to hear the matter since the original divorce and child custody proceedings were held in Scott County Chancery Court. In accordance with the divorce decree ordered in Scott County, physical custody of the children was returned to C.M. C.M. appeals. |
| Summary of Opinion Analysis: | Issue 1: Custody C.M. argues that the court violated her due process rights by not providing her with adequate notice of two ex parte hearings. A noncustodial parent may file a habeas action to obtain temporary custody upon a showing that the custodial parent has abandoned the child or has become altogether unfit to have custody. Under M.R.C.P. 65(b), a temporary restraining order may be granted without notice to the adverse party if it clearly appears from specific facts shown by affidavit or by the verified complaint that immediate and irreparable injury, loss, or damage will result to the applicant before the adverse party or his attorney can be heard in opposition, and the applicant’s attorney certifies to the court in writing the efforts, if any, which have been made to give the notice and reasons supporting his claim that notice should not be required. Here, the chancellor was presented with a motion for an emergency TRO alleging that the children lived in a potentially harmful atmosphere. R.D.H., Sr. alleged that the children’s new father served the children beer to get them to sleep at night, and that he beat the children if they did not call him “daddy.” One of the children’s testimony corroborated R.D.H., Sr.’s allegations. Therefore, the chancellor did not abuse his discretion by granting the TRO. More importantly, within Mississippi only the court that issues an original custody order has exclusive and continuing jurisdiction to modify the order. The Hinds County chancellor recognized Scott County’s continuing jurisdiction and vacated all previous orders which would have modified the original child custody order. Thus, C.M.’s argument is moot. Issue 2: Due process C.M. argues that the court erred by soliciting improper testimony during the ex parte hearings for an emergency TRO. In order for the judge to determine custody of the minor child all testimony regarding factors of the child’s best interest must be allowed. The testimony provided in this case was relevant in order for the chancellor to weigh the factors regarding the children’s best interests. C.M. also argues that her due process rights were violated because she received no notice of the ex parte hearings. Because R.D.H., Sr. provided specific allegations of immediate harm, which were corroborated by other testimony, this argument is without merit. Issue 3: Untimely motion C.M. argues that R.D.H., Sr.’s motion to dissolve the order terminating his parental rights should have been dismissed as untimely. R.D.H., Sr. filed his petition approximately one year after the judgment terminating his parental rights. R.D.H., Sr. testified that he did not learn of the proceedings until the summer of 2005, at which time he immediately sought an attorney to remedy the situation. While it is arguable that R.D.H., Sr. may have been time-barred from filing a petition for post-judgment relief based on fraud under M.R.C.P. 60(b)(1), the order affected his fundamental rights and could therefore be considered under the general provision of M.R.C.P. 60(b)(6). Moreover, this issue is moot because the original order terminating his parental rights is void due to lack of subject matter jurisdiction. Issue 4: Sanctions C.M. argues that she should have been awarded sanctions because R.D.H., Sr. filed motions merely to harass C.M. Under M.R.C.P. 11(b), the court may award reasonable expenses and attorney's fees against a party or his attorney, or both, whose pleading or motion is frivolous or is filed for the purpose of harassment or delay. There is no evidence in the record that R.D.H., Sr. pursued litigation in the sole attempt to harass C.M. |
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