J.E.W. v. T.G.S
| Docket Number: | 2004-CA-02458-SCT Linked Case(s): 2004-CA-02458-SCT |
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| Supreme Court: | Opinion Link Opinion Date: 06-29-2006 Opinion Author: Carlson, J. Holding: Affirmed in Part and Dismissed in Part |
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| Additional Case Information: |
Topic: Child custody - Full faith and credit - Automatic stay - M.R.A.P. 8 - Notice of appeal - M.R.A.P. 3(c) Judge(s) Concurring: Smith, C.J., Waller, P.J., Diaz, Easley, Graves, Dickinson and Randolph, JJ. Non Participating Judge(s): Cobb, P.J. Procedural History: Bench Trial Nature of the Case: CIVIL - CUSTODY |
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| Trial Court: |
Date of Trial Judgment: 12-01-2004 Appealed from: Warren County Chancery Court Judge: Vicki Barnes Disposition: The Warren County Chancery Court entered an order on a petition for writ of habeas corpus affording full faith and credit to two ex parte South Carolina court orders entered concerning child custody issues. Case Number: 2004-393GN |
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| Note: | Motion to Strike Portions of Appellant's Brief and for Attorney Fees filed by the appellee is denied. | |
| Party Name: | Attorney Name: | |||
| Appellant: | J.E.W. |
PATRICIA PETERSON SMITH |
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| Appellee: | T.G.S | LEE DAVIS THAMES, JR. J. MACK VARNER |
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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: | Child custody - Full faith and credit - Automatic stay - M.R.A.P. 8 - Notice of appeal - M.R.A.P. 3(c) |
| Summary of the Facts: | T. G. S. and J. E. W. are the natural parents of B. A. S. After the couple separated, the mother and child moved to Vicksburg. The parents agreed to an alternating schedule of shared custody whereby each parent had separate custody of the child every other month. In 2004, the father took the child to South Carolina where he filed a petition for child custody and support and restraining order in the Family Court of the Fourth Judicial Circuit of Darlington County, South Carolina. The South Carolina family court entered an ex parte temporary injunction, enjoining both the parents from removing the child from the state of South Carolina, pending a temporary hearing on the issues of child custody and child support and other related issues. The mother and her sister, without knowledge of the South Carolina court action, traveled to South Carolina to retrieve the child pursuant to a pre-arranged agreement between the parents. It is undisputed that by the time the mother and her sister left South Carolina with the child, the mother was aware of the South Carolina family court temporary restraining order. The mother filed a petition for child custody in the County Court of Warren County. Upon learning that the mother had removed the child from the state of South Carolina, the South Carolina family court, by way of a second ex parte order, awarded the father custody of the child pending a hearing, and directed all law enforcement officers to assist the father in retrieving the child. The father filed a petition for a writ of habeas corpus in the Chancery Court of Warren County requesting that full faith and credit be given to the previously entered South Carolina temporary injunction and custody order. Following a hearing, the chancery court granted the petition and ordered the return of the child to the father until there is a hearing by the Family Court of Darlington, South Carolina. After the bench ruling from the chancery court, but prior to entry of the written judgment consistent with the bench ruling, the mother, through counsel, filed a motion for a stay of execution of the chancery court judgment pending appeal. After the chancery court judgment was entered, the mother then filed a notice of appeal. The chancellor entered an order denying Jan’s motion for stay of execution of the judgment. After the filing of the notice of appeal, the County Court of Warren County conducted a two-day hearing on the mother’s petition for child custody and granted the permanent care, custody and control of the child to the father and deferred all remaining issues. The mother appealed that ruling to the Supreme Court which granted the father’s motion to dismiss since the mother should have appealed the county court order to the chancery court. |
| Summary of Opinion Analysis: | The mother argues that the trial court erroneously failed to grant an automatic 10-day stay of enforcement of the judgment pending appeal under M.R.A.P. 8. The mother filed her notice of appeal in this case on December 1, 2004, and the chancery court denial of the automatic stay did not occur until the next day, December 2, 2004. The mother is attempting to do the impossible – pursue on appeal an issue arising from events that had not yet taken place at the time she filed her notice of appeal. Although M.R.A.P. 3(c) states that an appeal shall not be dismissed for informality of form or title of the notice of appeal, the mother fails to comply with the Rule 3 requirements no matter how flexible the text regarding form. Therefore, this issue is not properly before the Court. The mother argues she was due an automatic ten-day stay under M.R.A.P. 8(b)(5). Assuming that M.R.A.P. 8 is applicable in this case, the mother is entitled to no relief under this rule. Immediately after the trial court denied a stay of judgment, she petitioned the Supreme Court for relief. The Court ultimately denied her request for a stay pending appeal. Although the mother argues that the original orders from the South Carolina trial court were not due full faith and credit, the County Court of Warren County also awarded the father permanent care, custody, and control of the child in a proceeding the mother herself initiated. Based on the actions of the South Carolina and Mississippi courts, this controversy has now expired at the time of review, making this appeal moot. The mother argues that the case should not be dismissed as moot because it is a matter of public interest. However, this case is a private dispute between two parties and does not involve matters of public interest. |
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