Atwood v. Hicks by Hicks, No. 58687

• Court: United States State Supreme Court of Mississippi
• Writing for the Court: ROBERTSON; ROY NOBLE LEE
• Citation: 538 So.2d 404
• Parties: Emmett Ray ATWOOD, Sr. v. Emile HICKS, A Minor, by Georgia HICKS, Next Friend.
• Decision Date: 11 January 1989
• Docket Number: No. 58687

Page 404

538 So.2d 404 Emmett Ray ATWOOD, Sr.
v.
Emile HICKS, A Minor, by Georgia HICKS, Next Friend. No. 58687. Supreme Court of Mississippi. Jan. 11, 1989.

Page 405

Ellis B. Bodron, Way, Field & Bodron, Vicksburg, K. Hayes Callicutt, Cary E. Bufkin, Shell, Buford, Bufkin, Callicutt & Perry, Jackson, for appellant.

Halbert E. Dockins, Jr., Dockins & Wise, Sorie S. Tarawally, Jackson, for appellees.

Before DAN M. LEE, P.J., and ROBERTSON and PITTMAN, JJ.

ROBERTSON, Justice, for the Court:

I.

This case presents question, first, whether a claim made on behalf of a minor child against his putative father for paternity and for maintenance and support may with court approval be finally settled. We hold that it may. Second, under what circumstances, if any, may such a court approved settlement be reopened, long after the fact, to which we answer, only upon application to the court which approved the settlement followed by proof of fraud, sham, pretense or collusion in the procurement. We reverse and render.

II.

On November 18, 1976, Georgia A. Hicks ("Hicks"), an unmarried female, gave birth to a son, Joseph Emile Hicks ("Emile"). Slightly over eight months later--on August 1, 1977, to be specific--Hicks filed in the County Court of Warren County, Mississippi, a petition to determine paternity, naming Emmett Ray Atwood as defendant and alleging that Atwood was Emile's father. See Miss.Code Ann. Secs. 93-9-1, et seq. (1972, as amended). Hicks sought an order of filiation and a judgment that Atwood pay all medical expenses incident to the child's birth and make "periodic payments of support money for said minor child."

Several months thereafter Hicks and Atwood, both of whom were represented by counsel, negotiated a settlement of the pending suit. Pursuant thereto, Hicks petitioned the Chancery Court of the First Judicial District of Hinds County that she be appointed Emile's guardian. It appears that at the time both Hicks and Emile were residents of the First Judicial District of Hinds County. On December 5, 1977, the

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Chancery Court entered its decree appointing Hicks as Emile's guardian and letters of guardianship were issued to Hicks. Later that same day, Hicks filed in the Chancery Court a petition for authority to settle doubtful claim. Miss.Code Ann. Sec. 93-13-59 (1972). Hicks executed the petition in her capacity as Emile's mother and guardian, in her individual capacity, and as "next friend". The petition sought approval of a financial settlement whereunder Atwood would pay to Hicks the sum of $18,000.00 and be acquitted of further responsibility for Emile's support.

On the same day, the Chancery Court entered its decree approving the settlement. The Court recited that Atwood was willing to make the payment even though he

has denied that he is the father of the said child, and asserts that he has a good, sufficient and complete defense to the action.

The decree further recited that Atwood was a married man with a good reputation in the community and that he desired to resolve the matter short of "a public disposition". Of the $18,000.00 settlement amount, the Court authorized some $7,800.00 to be paid to Hicks individually as reimbursement for her expenses incident to the birth and support of the child to date. The Court then decided that $7,200.00 was to be paid to Hicks' attorneys for their services and that the remaining $3,000.00 be placed in the guardianship estate. The decree further recited that Hicks was

directed to execute any and all documents necessary to complete the compromise and complete release of the said Emmett Ray Atwood.

On December 7, 1977, the County Court of Warren County, Mississippi, entered its order dismissing Hicks' paternity action "with prejudice."

All of this is background to the present proceedings which were commenced on May 1, 1987, when Hicks, as Emile's next friend, filed in the Chancery Court of Warren County, Mississippi, a new complaint for paternity, child support and order of filiation. See Palmer v. Mangum, 338 So.2d 1002, 1003 (Miss.1976). Again Atwood was named as defendant. In due course, Atwood moved to dismiss citing, among other grounds, the 1977 settlement, which has been described above. On August 4, 1987, the Chancery Court of Warren County finally denied the motion to dismiss and on the same date denied Atwood's application for an interlocutory appeal.

Atwood promptly applied to this Court for leave to file an interlocutory appeal and for a stay of proceedings in the Chancery Court pending said appeal. Being of the view that such might materially advance the ultimate termination of this litigation, Kilgore v. Barnes, 490 So.2d 895, 896 (Miss.1986), we granted Atwood's interlocutory appeal by order entered August 26, 1987, and stayed all proceedings in the Chancery Court. ¹

III.

Atwood presents a number of issues on this interlocutory appeal. Whether and to what extent the 1977 court-approved settlement is enforceable are all we need consider.

Our law empowers guardians, acting with chancery court approval previously obtained, to "compromise claims due their wards." Miss.Code Ann. Sec. 93-13-59 (1972). In proceedings outlined above, Hicks, as Emile's guardian, sought and obtained approval of the Chancery Court of Hinds County for the $18,000.00 settlement of her claims for medical expenses incident to pregnancy and birth and for past and future support of the child Emile. We have examined these proceedings as they appear in the record and they are complete and regular on their face and, as such, entitled to the customary presumption of validity. See Bolls v. Sharkey, 226 So.2d 372, 376 (Miss.1969). If the settlement be valid and enforceable, of course, no subsequent

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action may be brought upon the claims so compromised.

Emile, who would now be some twelve years of age, mounts a number of attacks upon the 1977 settlement proceedings. First, he argues that claims for paternity and support may not be compromised, that, indeed, such would be contrary to public policy. The short answer is found in our Mississippi Uniform Law On Paternity where it is provided "that an agreement of settlement with the alleged father is binding only when approved by the court." Miss.Code Ann. Sec. 93-9-49 (1972). True, this...