Sizemore v. Pickett
| Docket Number: | 2010-CP-01183-COA | |
| Court of Appeals: |
Opinion Link Opinion Date: 12-13-2011 Opinion Author: Carlton, J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Habeas corpus - Child custody - Albright factors - Notice of hearing Judge(s) Concurring: Lee, C.J., Griffis, P.J., Ishee, Roberts, Maxwell and Russell, JJ. Non Participating Judge(s): Myers, J. Dissenting Author : Irving, P.J. Concur in Part, Concur in Result 1: Barnes, J., concurs in part and in the result without separate written opinion Procedural History: Bench Trial Nature of the Case: CIVIL - DOMESTIC RELATIONS |
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| Trial Court: |
Date of Trial Judgment: 06-07-2010 Appealed from: Jackson County Chancery Court Judge: D. Neil Harris Disposition: CUSTODY OF MINOR CHILD AWARDED TO APPELLEE Case Number: 2009-2622 NH |
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| Party Name: | Attorney Name: | |||
| Appellant: | Richard P. Sizemore |
PRO SE |
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| Appellee: | Francis Clifton Pickett | PRO SE |
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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: | Habeas corpus - Child custody - Albright factors - Notice of hearing |
| Summary of the Facts: | Richard Sizemore filed a “Motion for Writ of Habeas Corpus & for Other Relief” in the Jackson County Chancery Court, seeking to have his fifteen-year-old son, John Blake Sizemore (Blake), removed from the home of Francis Clifton Pickett (Cliff), Blake’s older half brother, in Colorado Springs, Colorado, and returned to him in Ocean Springs. In Richard’s petition for habeas corpus, he asserted entitlement to custody as the natural parent and provided while his previous judgment of divorce awarded his wife, Blake’s mother, custody of the children, his former wife was deceased. The chancery court initially granted Richard’s writ of habeas corpus and ordered Cliff to return Blake immediately to Richard. Cliff filed a motion to reconsider and a motion for emergency injunctive relief, wherein Cliff asserted the court lacked personal jurisdiction over him and alleged, among other things, he received improper service and notice via fax contrary to the requirements of M.R.C.P. 81 for service of out-of-state defendants. Cliff also raised the issue of parental fitness before the court, asserting Richard was not entitled to the natural-parent presumption for custody because Richard abandoned Blake and his other siblings upon the death of their mother in 2005 by failing to support them, by failing to exercise his visitation, by doing nothing to assist them, and by failing to seek custody for almost five years. Following a hearing, the chancellor entered an order noting that Richard failed to appear at the hearing and finding that custody with Cliff served Blake’s best interest. Richard appeals. |
| Summary of Opinion Analysis: | Richard argues that the chancellor erred by awarding custody of Blake to Cliff; and in support of his claim, he asserts the chancellor inappropriately applied the Albright factors to the determination of custody in this habeas corpus proceeding. Richard also argues the court erred in failing to grant a continuance for the June 7, 2010 hearing, and he asserts the court should not have held the June 7, 2010 hearing without his presence. In a habeas corpus proceeding for custody, the best interest of the child constitutes the controlling issue. In this case, the chancellor appropriately recognized the distinct purpose of a habeas corpus proceeding for custody. Since Richard failed to request relief or more specific findings post trial, precedent requires no remand for such findings upon appellate review, where substantial evidence clearly supports the judgment, and the chancellor provided sufficient general findings. Precedent establishes that where the custody proceeding lies between a parent and a third person, the third party bears the burden of proof to show the rights of parents have been forfeited, surrendered, or otherwise lost and that the best interest of the child will be served by withholding or removing the child from the parent and that the parent is unfit. Here, the evidence in the record, specifically the testimony of John, Richard’s own father, and the testimony of Cliff, provides substantial evidence supporting the denial of Richard’s habeas corpus petition with evidence that Richard’s own conduct adversely affected Blake’s safety and welfare. Therefore, the chancellor properly considered both Blake’s best interest and welfare in the habeas corpus proceeding. The record reflects the chancellor properly applied the law, provided sufficient findings, and substantial evidence supported the chancellor’s judgment. Richard’s claim that he received inadequate notice of the June 7, 2010 habeas corpus proceeding is without merit. The June 7, 2010 hearing had been scheduled since January 2010 by agreed order, and the record clearly shows Richard knew the hearing was reset for June 7, 2010, from January 2010. A review of Richard’s own handwritten letter in the record to the chancery court after the June 7, 2010 hearing, demonstrates Richard was aware of the June 7, 2010 hearing |
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