D.C. v. D.C.
| Docket Number: | 2006-CA-00320-SCT Linked Case(s): 2006-CA-00320-SCT ; 2006-CA-00320-SCT ; 2006-CA-00320-SCT |
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| Supreme Court: |
Opinion Date: 02-28-2008 Opinion Author: Waller, P.J. Holding: Affimed in Part. The motion to dismiss is granted. The mother's appeal of the chancery court's judgment is hereby dismissed unless the mother surrenders custody of the children to the Clarke County Department of Human Services, submits herself to the jurisdiction of the Clarke County Chancery Court, files proof of compliance with these conditions with this Court, and shows good cause to this Court to reinstate her appeal, all within forty (40) days from the date of this opinion. A stay of this Court's mandate is hereby entered and will remain in force for forty (40) days from the date of this opinion. If these conditions are not met, the stay shall lift automatically and the mandate shall issue forthwith from this Court. |
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| Additional Case Information: |
Topic: Modification of custody - Fugitive dismissal rule - Motion to intervene - Grandparent’s visitation Judge(s) Concurring: Smith, C.J., Diaz, P.J., Easley, Carlson, Dickinson and Lamar, JJ. Non Participating Judge(s): Randolph, J. Concurs in Result Only: Graves, J. Procedural History: Bench Trial; Dismissal Nature of the Case: CIVIL - DOMESTIC RELATIONS; Motion to Dismiss |
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| Trial Court: |
Date of Trial Judgment: 02-10-2006 Appealed from: Clarke County Chancery Court Judge: Sarah P. Springer Disposition: The chancellor granted the father’s amended petition for custody modification and awarded him and the Mississippi Department of Human Services (DHS) joint legal and physical custody of the parties’ two children. Case Number: 00-0038-S |
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| Party Name: | Attorney Name: | |||
| Appellant: | D.C. and S.G. |
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| Appellee: | D.C. |
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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 - Fugitive dismissal rule - Motion to intervene - Grandparent’s visitation |
| Summary of the Facts: | The Clarke County Chancery Court granted a mother and father a divorce on grounds of irreconcilable differences. The parents jointly submitted an agreement concerning the distribution of marital property, child support, and child custody to the chancellor for approval. The court awarded the parents joint legal custody of their two children, awarded the mother sole physical custody of the children, and granted the father extensive visitation. Following one of the visitations, the mother contacted the Lauderdale County Sheriff’s Office to investigate sexual abuse allegations against the father. Prior to the father’s next scheduled visitation period, the mother moved with the children to Texas and did not turn the children over to the father for his scheduled visitation. The father petitioned the chancery court for an alteration of the visitation agreement and to have the mother held in contempt. The mother filed an answer and counterclaim, as well as a motion to appoint a guardian ad litem, alleging the father sexually abused their daughter. The guardian ad litem recommended that he be given access to the children and the father be granted further visitation. The chancellor entered an Order Sua Sponte directing the children be placed temporarily with the Clarke County Department of Human Services. The father filed a motion to hold the mother in contempt for failing to comply with the chancery court’s visitation orders. He also filed an amended petition requesting sole physical and legal custody of the children. The grandmother filed a motion to intervene and for reconsideration of the order, and asserted a claim for grandparents’ visitation rights. The chancellor denied the grandmother’s motion. The children were turned over to DHS, which placed them temporarily with the father’s parents. They subsequently were placed in a foster home. The guardian filed a report which recommended returning temporary custody of the children to their mother and giving the father visitation. The chancery court entered an order granting the recommended relief, and the mother took custody of the children. She then fled the state and has neither returned nor allowed the children to visit their father. The chancery court held a trial on the father’s petition for custody modification and awarded him joint legal and physical custody of the children with DHS. The court also held the mother in contempt of court for her failure to comply with court orders and sentenced her to incarceration. The mother and grandmother appeal. |
| Summary of Opinion Analysis: | Issue 1: Fugitive dismissal rule The father asks the Court to apply the fugitive dismissal rule and the doctrine of unclean hands and completely refrain from considering the merits of the mother’s appeal. The fugitive dismissal rule provides that where a person is convicted of a felony and perfects an appeal and escapes from custody pending his appeal such action shall be deemed an abandonment of the appeal and will be subject to a motion by the state to dismiss such appeal. However, such dismissal shall be subject to be reinstated on motion of appellant showing good cause. The best interests of the child is the polestar consideration in custody matters. Therefore, it would not serve the best interests of the children to allow the mother, who has demonstrated a recurring disregard for the orders of the chancery court, to proceed with her appeal. Thus, the mother’s appeal is dismissed. Issue 2: Motion to intervene The grandmother argues that when the chancellor struck the mother’s defenses and counterclaim, she had a right to intervene. Grandparents’ visitation is unknown to common law, therefore, such right to visitation must come from the statute. Here, the grandmother had no statutory right to visitation at the time the motion was made. The chancellor had not awarded custody of the children to one parent, and the grandmother offered no facts in her motion or at the hearing to demonstrate she had a viable relationship with the children and that she was being unreasonably denied visitation. |
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