Wilson v. Mallett
| Docket Number: | 2009-CA-01607-COA | |
| Court of Appeals: |
Opinion Link Opinion Date: 12-07-2010 Opinion Author: Myers, P.J. Holding: This appeal is dismissed as moot. |
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| Additional Case Information: |
Topic: Writ of habeas corpus - Child custody Judge(s) Concurring: King, C.J., Lee, P.J., Irving, Griffis, Barnes, Ishee, Roberts, Carlton and Maxwell, JJ. Procedural History: Bench Trial Nature of the Case: CIVIL - CUSTODY |
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| Trial Court: |
Date of Trial Judgment: 10-06-2009 Appealed from: DeSoto County Chancery Court Judge: Vicki Cobb Disposition: HABEAS CORPUS ISSUED AND DELIVERED CHILD TO FATHER Case Number: 02-07-977(VC) |
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| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | Margie Edna (Galloway) Mallett Wilson |
H.R. GARNER |
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| Appellee: | Byron Keith Mallett | L. ANNE JACKSON HODUM, STEVEN GLEN ROBERTS | ||
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: | Writ of habeas corpus - Child custody |
| Summary of the Facts: | Byron Mallett and Margie Wilson are the natural parents of Byron Mallet Jr. Mallett and Wilson entered into an agreed order modifying custody. Among other things, it provided that Mallett would have primary physical custody of Byron and that Wilson would have physical custody for eight weeks during the summer. Shortly after the agreed custody order was entered, a dispute arose over which parent would have the child for the rest of the summer. The agreed custody order did not specifically address the summer of 2008. Mallett argued that Wilson’s eight weeks for 2008 would end on July 10, since Wilson had already had custody of Byron for most of that summer. Wilson took the position that her summer visitation under the new order began on the day the agreed order was entered. Wilson filed a motion to set aside the agreed custody order or, in the alternative, to grant relief from the order under M.R.C.P. 60. She also asked for an emergency hearing, which the chancellor apparently offered to grant; but Wilson declined the offer due to scheduling difficulties. Wilson then immediately filed an appeal from the agreed order. The Court of Appeals ultimately dismissed for lack of jurisdiction. While the appeal was pending, Mallett filed a petition for a writ of habeas corpus. Mallett alleged that, under the agreed order, he was entitled to custody of Byron for the remainder of the summer and that Wilson had wrongfully refused to return the child to him. The chancellor granted the habeas corpus petition, the writ was issued, and the Sheriff of DeSoto County removed the child from Wilson’s possession. The chancellor later held a hearing on Wilson’s motion to set aside the writ of habeas corpus. The chancellor entered an order finding that the writ had been properly issued. Wilson appeals. |
| Summary of Opinion Analysis: | It is undisputed that the writ was issued to enforce Mallett’s right to custody of the child between July 10, 2008, and approximately August 7, 2008. At a subsequent hearing, the parties represented to the chancellor that the passage of time had effectively settled this dispute and that they had resumed cooperating under the agreed custody order. Since her prior appeal was dismissed, it appears that Wilson has abandoned her challenge to the agreed order itself. In this appeal, the only relief Wilson requests is that the habeas corpus proceeding be set aside. Since the writ has been fully executed and the underlying dispute abrogated by the passage of time, the appeal is dismissed as moot. |
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