Brown v. Weatherspoon, 2011–CA–00818–COA.

• Decision Date: 06 November 2012
• Docket Number: No. 2011–CA–00818–COA.,2011–CA–00818–COA.
• Citation: 101 So.3d 173
• Parties: Serhonda BROWN, Appellant v. Kenyader WEATHERSPOON, Appellee.
• Court: Mississippi Court of Appeals

101 So.3d 173

Serhonda BROWN, Appellant

v.Kenyader WEATHERSPOON, Appellee.

No. 2011–CA–00818–COA.

Court of Appeals of Mississippi.

Nov. 6, 2012.

Paul E. Rogers, Jackson, attorney for appellant.

Kimberly Celeste Banks, Halbert E. Dockins Jr., Jackson, attorneys for appellee.

Before LEE, C.J., ROBERTS and CARLTON, JJ.

ROBERTS, J., for the Court:

¶ 1. Kenyader Weatherspoon voluntarily acknowledged that he was the father of Serhonda Brown's child, M.B.¹ Weatherspoon also agreed to pay Brown child support. Approximately six years later, a DNA test revealed that Weatherspoon was not M.B.'s biological father. Weatherspoon successfully moved to set aside the order of filiation and relieve him of his obligation to pay future and past but unpaid child support. The Madison County Chancery Court also ordered Brown to pay Weatherspoon's attorney's fees.

¶ 2. Brown appeals and raises three issues. Brown claims the chancellor erred when she granted Weatherspoon's motion to set aside the order of filiation. Additionally, Brown claims the chancellor erred when she relieved Weatherspoon of his obligation to pay accrued, unpaid child support. Finally, Brown claims the chancellor erred when she ordered Brown to pay Weatherspoon's attorney's fees. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 3. M.B. was born in January 2001. Brown told the Mississippi Department of Human Services (DHS) that she believed Weatherspoon was M.B.'s father. In 2002, Brown sued Weatherspoon to establish paternity and receive child support. Brown also named DHS a defendant in that lawsuit based on her claim that she had received or would receive benefits for M.B. under the Aid to Families with Dependent Children or Temporary Assistance for Needy Families programs. Without requesting DNA tests, Weatherspoon voluntarily signed an order of filiation and agreed to pay $157 each month in child support. Weatherspoon also received visitation rights with M.B. In December 2005, Weatherspoon entered an agreed judgment of contempt based on some unpaid child support. Weatherspoon's child-support obligation was increased to $207 per month to make up the difference.

¶ 4. In March 2008, Brown agreed to DNA testing to determine whether M.B. was actually Weatherspoon's child. The DNA test results indicated that there was a 0% probability that Weatherspoon was M.B.'s father. Approximately five months later, Weatherspoon filed a motion to set aside the paternity and child support order under Rule 60(b)(6) of the Mississippi Rules of Civil Procedure. Brown contested Weatherspoon's motion and filed a counterclaim for contempt for unpaid child support. Initially, Brown disputed the DNA test results. However, she later stipulated that the DNA test results were correct.

¶ 5. The chancellor heard Brown's motion and Weatherspoon's counterclaim for contempt over the course of three separate hearing dates. On June 8, 2011, the chancellor entered her opinion and order. The chancellor granted Weatherspoon's motion to set aside the paternity and child support order. According to the chancellor, since M.B. was not Weatherspoon's biological child, it would be unjust for Weatherspoon to continue to pay child support for M.B.

¶ 6. The chancellor also addressed Brown's argument that Weatherspoon should be held in contempt and remain responsible for the unpaid child support that accrued between the time that Weatherspoon acknowledged paternity and volunteeredto pay child support and the chancellor's decision to grant Weatherspoon's motion. The chancellor cited McBride v. Jones, 803 So.2d 1168 (Miss.2002) for the principle that past-due child support payments cannot be modified or forgiven because the parent's obligation of child support vests in the child when the payment becomes due. The chancellor held that she had no authority to forgive the vested, past-due child support. However, relying on R.E. v. C.E.W., 752 So.2d 1019 (Miss.1999), the chancellor went on to hold that M.B.'s actual biological father should be responsible for the past-due amount.² Consequently, the chancellor ordered “the parties, their attorneys, and [DHS] to determine the past[-]due amount of child support.” The chancellor also ordered Brown “to file a separate suit against the biological father to establish paternity, and to be appointed general guardian of [M.B.].” According to the chancellor, “[t]he biological father shall be ordered to pay the determined sum of past[-]due child support to the guardian for [M.B.], within forty-five ... days of the entry of this Opinion and Order.”

¶ 7. The chancellor found that putative biological father, Greg Adams, had been named as a party and served with process.³ The chancellor noted that DHS's accounting indicated that Weatherspoon owed Brown $7,893.32 in unpaid child support from April 2006 through December 2009. The chancellor further noted that Brown acknowledged that Weatherspoon had given her some money during that time, but Brown was not certain how much money Weatherspoon had given her. Accordingly, the chancellor did not accept DHS's accounting as authoritative. According to the chancellor, Brown did not want to seek child support from the putative biological father. Brown apparently never elaborated on her reasoning.

¶ 8. Finally, the chancellor addressed Weatherspoon's request for attorney's fees. The chancellor stated:

In spite of the negative DNA results, [Brown] has insisted [that] [Weatherspoon] pay her past[-]due child support and current child support for [M.B.]. She has filed a response to the motion to set aside, and a counterclaim for contempt, after she received the DNA results. [Brown] testified that she knows the identity of the biological father and his whereabouts. She further stated she does not intend to pursue child support from the biological father. [Brown] stated she only wants child support from [Weatherspoon]. As a result, [Weatherspoon] stated he has incurred attorney's fees in the amount of $9,210.25 since the institution of the suit in August 2008.

As a consequence of her insistence that [Weatherspoon] pay child support for a child that is unquestionably not his, this Court hereby awards attorney[']s fees to [Weatherspoon] in the amount of $9,120.25 [sic]. The said attorney['s] fees are to be paid by [Brown] within 90 days of the entry of this Opinion and Order.

Brown appeals.

STANDARD OF REVIEW

¶ 9. “When reviewing a chancellor's decision, an appellate court will accept the chancellor's findings of fact as long as the evidence in the record reasonably supports those findings.” Lee v. Lee, 12 So.3d 548, 550 (¶ 9) (Miss.Ct.App.2009). (quoting Norton v. Norton, 742 So.2d 126, 128–29 (¶ 8) (Miss.1999)). We will disturb the chancellor's findings if the chancellor was manifestly wrong; the chancellor's findings are not supported by substantial, credible evidence; or the chancellor applied an erroneous legal standard. Id.

ANALYSIS

I. WEATHERSPOON'S RULE 60(B) MOTION

¶ 10. Brown claims the chancellor erred when she granted Weatherspoon's Rule 60(b) motion to set aside the 2002 order of filiation. According to Brown, Weatherspoon did not file his motion within a reasonable time. Brown also argues that Weatherspoon should be estopped from setting aside the paternity and child support order because Weatherspoon voluntarily agreed to execute it. Brown claims Weatherspoon could have contested custody when M.B. was born, but he chose not to do so.

¶ 11. “A trial judge's refusal to grant relief under Rule 60(b) is subject to review under an abuse of discretion standard.” M.A.S. v. Miss. Dept. of Human Serv., 842 So.2d 527, 530 (¶ 12) (Miss.2003) (citations omitted). Rule 60(b) provides:

(b) Mistakes; Inadvertence; Newly Discovered Evidence; Fraud; etc. On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons:

(1) fraud, misrepresentation, or other misconduct of an adverse party;

(2) accident or mistake;

(3) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b);

(4) the judgment is void;

(5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application;

(6) any other reason justifying relief from the judgment.

The motion shall be made within a reasonable time, and for reasons (1), (2) and (3) not more than six months after the judgment, order, or proceedings was entered or taken.

¶ 12. The chancellor granted Weatherspoon's motion under Rule 60(b)(6). “Relief under Rule 60(b)(6) is reserved for extraordinary and compelling circumstances.” Id. at 530 (¶ 12). Rule 60(b)(6) has also been described as “grand reservoir of equitable power to do justice in a particular case.” Id. But it “is not an escape hatch for litigants who had procedural opportunities afforded under other rules and who without cause failed to pursue those procedural remedies.” Id.

¶ 13. In M.A.S., a man had consented to paternity of a child, but through DNA testing he later learned that he was not the child's biological father. M.A.S., 842 So.2d at 528 (¶ 1). M.A.S. successfully moved to set aside the prior order of filiation. Id. at 529 (¶ 5). The Mississippi Supreme Court affirmed the decision to set aside an order of filiation and stated that M.A.S. was “the archetype for the application of Rule 60(b)(6).” Id. at (¶ 18). Despite the fact that the movant in M.A.S. had paid child support for ten years, the supreme court held that he had filed his Rule 60(b) motion within a reasonable time after he learned that he was not the child's father. Id. at 530 (¶ 15). Brown notes that the movant in M.A.S. was seventeen years old when he signed a stipulated paternity agreement. Id. at 528 (¶ 3). Brown argues that this case...