Battise v. Aucoin, 021121 MSSC, 2019-IA-01775-SCT
| Opinion Judge | BEAM, JUSTICE |
| Party Name | LINDA P. BATTISE v. SHEILA AUCOIN |
| Attorney | TRIAL COURT ATTORNEYS: WILLIAM W. DREHER, JR. GEORGE SCANLAN BLAIR ATTORNEY FOR APPELLANT: WILLIAM W. DREHER, JR. ATTORNEY FOR APPELLEE: GEORGE SCANLAN BLAIR |
| Judge Panel | BEFORE KITCHENS, P.J., BEAM AND ISHEE, JJ. RANDOLPH, C. J., KITCHENS AND KING, P.JJ., COLEMAN, MAXWELL, CHAMBERLIN, ISHEE AND GRIFFIS, JJ., CONCUR. |
| Case Date | February 11, 2021 |
| Court | Mississippi Supreme Court |
DATE OF JUDGMENT: 11/08/2019
HANCOCK COUNTY CHANCERY COURT HON. JENNIFER T. SCHLOEGEL TRIAL JUDGE
TRIAL COURT ATTORNEYS: WILLIAM W. DREHER, JR. GEORGE SCANLAN BLAIR
ATTORNEY FOR APPELLANT: WILLIAM W. DREHER, JR.
ATTORNEY FOR APPELLEE: GEORGE SCANLAN BLAIR
BEFORE KITCHENS, P.J., BEAM AND ISHEE, JJ.
BEAM, JUSTICE
¶1. A paternal grandmother filed a petition for visitation rights of her granddaughters after her son died. The mother of the children filed a motion to dismiss or to stay the proceedings until her attorney's fees were paid. The chancellor awarded the mother her attorney's fees to be paid in advance of the hearing, and the grandmother appealed.
FACTS AND PROCEDURAL HISTORY
¶2. Linda Battise is the mother of Joseph Aucoin, who is deceased. Joseph and Sheila Aucoin were married and had two daughters. After Joseph's death, Sheila began restricting Linda's visitation with the children because Linda was not abiding by Sheila's parental decisions.
¶3. Linda petitioned the Hancock County Chancery Court for grandparent visitation under Mississippi Code Section 93-16-3(1) (Supp. 2020). On June 11, 2019, Linda's counsel presented the petition. The chancellor encouraged the parties to confer because Sheila made some statements showing that they could come to a visitation agreement without court involvement.
¶4. Linda and Sheila reached an agreement; however, the chancellor declined to sign the agreed order. The chancellor advised Sheila to retain an attorney because she did not believe that Sheila fully understood the implications of the agreement. Furthermore, the chancellor told Sheila that she was entitled to attorney's fees.
¶5. On June 20, 2019, Sheila hired an attorney and filed a motion to dismiss or stay proceedings until fees were paid in advance. Simultaneously, Linda filed a motion to recuse the chancellor. The motions were heard on August 15, 2019. The chancellor denied Linda's motion to recuse and ordered Linda to pay $3, 500 to Sheila for attorney's fees within thirty days or else she could not proceed with her case.
¶6. Linda appeals, arguing that (1) the chancellor erred by requiring her to prepay attorney's fees to Sheila before Linda's case could be heard; (2) the chancellor erred by not entering a final judgment; and (3) the chancellor erred by not recusing.
DISCUSSION
I.
Whether the chancellor erred by requiring Linda to pay Sheila's attorney's fees in advance.
¶7. Linda contends that the chancellor erred as a matter of law by requiring her to pay Sheila attorney's fees before her case could be heard. Linda does not dispute that "[a]n award of attorney's fees in domestic cases is largely a matter entrusted to the sound discretion of the trial court." Zeman v. Stanford, 789 So.2d 798, 806 (Miss. 2001) (citing Poole v. Poole, 701 So.2d 813, 819 (Miss. 1997)). Rather, she alleges that Mississippi Code Section 93-16-3(4) (Supp. 2020) does not apply to her petition and violates her constitutional rights under sections 24 and 25 of article 3 in the Mississippi Constitution.
¶8. Section 93-16-3 states as follows:
(1) Whenever a court of this state enters a decree or order awarding custody of a minor child to one (1) of the parents of the child or terminating the parental rights of one (1) of the parents of a minor child, or whenever one (1) of the parents of a minor child dies, either parent of the child's parents may petition the court in which the decree or order was rendered or, in the case of the death of a parent, petition the chancery court in the county in which the child resides, and seek visitation rights with the child.
(2) Any grandparent who is not authorized to petition for visitation rights pursuant to subsection (1) of this section may petition the chancery court and seek visitation rights with his or her grandchild, and the court may grant visitation rights to the grandparent, provided the court finds:
(a) That the grandparent of the child had established a viable relationship with the child and the parent or custodian of the child unreasonably denied the grandparent visitation rights with the child; and
(b) That visitation rights of the grandparent with the child would be in the best interests of the child.
(3) For purposes of subsection (2) of this section, the term "viable relationship" means a relationship in which the grandparents or either of them have voluntarily and in good faith supported the child financially in whole or in part for a period of not less than six (6) months before filing any petition for visitation rights with the child, the grandparents have had frequent visitation including occasional overnight visitation with said child for a period of not less than one (1) year, or the child has been cared for by the grandparents or either of them over a significant period of time during the time the parent has been in jail or on military duty that necessitates the absence of the parent from the home.
(4) Any petition for visitation rights under subsection (2) of this section shall be filed in the county where an order of custody as to the child has previously been entered. If no custody order has been entered, then the grandparents' petition shall be filed in the county where the child resides or may be found. Upon a showing of financial hardship for the parents, the court shall on motion of the parent or parents direct the grandparents to pay reasonable attorney's fees to the parent or parents at any time, including before a hearing, without regard to the outcome of the petition.
Miss. Code. Ann. § 93-16-3 (Supp. 2020) (emphasis added).
¶9. First, we find that Linda is procedurally barred from raising, for the first time on appeal, that Section 93-16-3(4)...
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