Powers v. Tiebauer


<- Return to Search Results


Docket Number: 2003-CP-01877-SCT

Supreme Court: Opinion Link
Opinion Date: 08-25-2005
Opinion Author: Graves, J.
Holding: Affirmed

Additional Case Information: Topic: Paternity - Change of surname of child - Abandonment of claim - Constitutionality of section 93-9-9(1) - Notice to Attorney General - M.R.C.P. 24(d)
Judge(s) Concurring: Smith, C.J., Waller and Cobb, P.JJ., Easley, Carlson, Dickinson and Randolph, JJ.
Non Participating Judge(s): Diaz, J.
Procedural History: Bench Trial
Nature of the Case: CIVIL - OTHER

Trial Court: Date of Trial Judgment: 07-25-2003
Appealed from: Newton County Chancery Court
Judge: H. David Clark
Disposition: Following a paternity test which established Eric Tiebauer as Rachel’s natural father, a hearing was held to adjudicate the same. Prior to the court’s proposed final order, Tiebauer petitioned to change the surname of Rachel to his own despite Powers’s objections. The chancellor granted his petition, ordered that Rachel’s surname be changed to Tiebauer, and later ruled that Powers had abandoned her claim in a subsequent hearing.
Case Number: 99-N253

  Party Name: Attorney Name:  
Appellant: Jessica Powers f/k/a Jessica R. McDonald




PRO SE



 

Appellee: Eric Tiebauer THOMAS T. BUCHANAN  

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.

Topic: Paternity - Change of surname of child - Abandonment of claim - Constitutionality of section 93-9-9(1) - Notice to Attorney General - M.R.C.P. 24(d)

Summary of the Facts: Rachel McDonald was born out of wedlock to Jessica Powers. Following a paternity test which established Eric Tiebauer as Rachel’s natural father, a hearing was held to adjudicate the same. Prior to the court’s proposed final order, Tiebauer petitioned to change the surname of Rachel to his own despite Powers’ objections. The chancellor granted his petition, ordered that Rachel’s surname be changed to Tiebauer, and later ruled that Powers had abandoned her claim in a subsequent hearing. Powers appeals.

Summary of Opinion Analysis: Issue 1: Abandonment of claim The order entered by the chancellor on November 14, 2000, was a final determination as to paternity and the change of Rachel’s surname. The order was temporary only as it related to custody, support, and visitation. After the chancellor ordered that Rachel’s surname be changed to Tiebauer, Powers then challenged the name change via a Motion to Alter or Amend. However, she took no action to notice the motion, set a hearing date, or otherwise pursue an adjudication of the motion until she objected to the name change at the final hearing on custody, support, and visitation. The chancellor found that Powers’ failure to pursue the motion should be deemed an abandonment of the claim. The facts support the chancellor’s finding that Powers abandoned her claim. Issue 2: Constitutionality of section 93-9-9(1) Powers argues that she has a fundamental right, as a mother, to retain the birth name given to her child, even after paternity has been established and that the paternal presumption in section 93-9-9(1) constitutes both a due process and equal protection violation of those rights. For this reason, she claims that her constitutional claim should not be procedurally barred from initial consideration on appeal. Powers opposed the name change at the initial hearing and at the second hearing on November 9, 2000, yet made no constitutional argument at either time. She made no challenge to the constitutionality of section 93-9-9(1) in her Motion to Alter or Amend. Also, the record of the hearing held in July of 2003 contains no evidence that Powers sought to declare section 93-9-9(1) unconstitutional. Additionally, the Attorney General received no notice of Powers’ constitutional challenge until he received her appellate brief as required under M.R.C.P. 24(d). Hence, Powers is procedurally barred from raising her constitutional challenge to section 93-9-9(1) for the first time on appeal.


Home | Terms of Use | About the JDP | Feedback | Using JDP | MC Law Library | Mississippi Supreme Court