Fisher v. Fisher
| Docket Number: | 2005-CP-01432-COA | |
| Court of Appeals: |
Opinion Link Opinion Date: 12-05-2006 Opinion Author: Chandler, J. Holding: REVERSED AND REMANDED |
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| Additional Case Information: |
Topic: Divorce: Desertion - Personal appearance by complainant - Section 93-5-19 Judge(s) Concurring: King, C.J., Lee and Myers, P.JJ., Southwick, Irving, Griffis, Barnes, Ishee and Roberts, JJ. Procedural History: Bench Trial Nature of the Case: CIVIL - DOMESTIC RELATIONS |
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| Trial Court: |
Date of Trial Judgment: 02-15-2005 Appealed from: SUNFLOWER COUNTY CHANCERY COURT Judge: JANE R. WEATHERSBY Disposition: COMPLAINT FOR DIVORCE DENIED Case Number: 2004-0052 |
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| Party Name: | Attorney Name: | |||
| Appellant: | Lawrence Ronald Fisher |
LAWRENCE RONALD FISHER (PRO SE) |
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| Appellee: | Sharla Jean Ferguson Fisher | NONE |
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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: | Divorce: Desertion - Personal appearance by complainant - Section 93-5-19 |
| Summary of the Facts: | Lawrence Fisher filed for divorce from Sharla Fisher on the ground of willful, continued and obstinate desertion for over one year. The couple married while Fisher was incarcerated in the State Penitentiary at Parchman. At the time of filing, Fisher had not spoken to or had any contact with Sharla for more than ten years. Fisher filed a motion to transport an inmate, himself, to the Sunflower Chancery Court for the divorce hearing, which the chancellor denied. As an alternative to making a personal appearance in court, Fisher then filed a motion to allow testimony by deposition upon written questions which the court granted. Written depositions from Fisher and the Corrections Supervisor for Visitation at Parchman were read into the record at the hearing. The Corrections Supervisor confirmed in his deposition that during the period of 1994 through August 2004, Fisher did not receive any visits from Sharla. The visitation logbook entries were introduced into the record as evidence. The chancellor denied Fisher a divorce, holding that it was necessary for him to be present in open court in order to obtain the requested prayer for relief. Fisher appeals. |
| Summary of Opinion Analysis: | Fisher argues that the court erred by denying him access to the court and denying his prayer for a divorce. The court did not err in denying Fisher’s motion to physically transport him to the court for his divorce proceeding. When balancing Fisher’s interest in leaving the prison to attend his hearing against those of the state, including judicial costs, transportation fees and safety measures, the court did not abuse its discretion. Problematic, however, is that the court seemingly allowed Fisher access through written depositions, but then stated at trial that Fisher must be physically present in order to obtain relief. The plain language of the divorce statutes does not require a complainant’s personal appearance in open court. Rather, an open court proceeding is the necessary requirement. As section 93-5-19 states, witness testimony may be given by reading a deposition into the record at trial. By rejecting Fisher’s motion to physically appear in court and then denying his petition for divorce because he was not present, the chancellor abused her discretion. Once the chancellor granted the motion to admit written depositions as testimony, this should have served as a reliable form of access to the court that Fisher requested. |
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