Hemphill-Weathers v. Farrish, No. 1999-CA-00610-COA

• Decision Date: 16 January 2001
• Docket Number: No. 1999-CA-00611., No. 1999-CA-00610-COA
• Citation: 779 So.2d 167
• Parties: In the Matter of Lavoris HEMPHILL-WEATHERS, Jr., A Minor: Lavoris Weathers, Appellant, v. David FARRISH d/b/a Farrish Trucking Company, Appellee. In the Matter of the Guardianship of Amanda Hemphill-Weathers, A Minor: Lavoris Weathers, Appellant, v. David Farrish d/b/a Farrish Trucking Company, Appellee.
• Court: Mississippi Court of Appeals

779 So.2d 167

In the Matter of Lavoris HEMPHILL-WEATHERS, Jr., A Minor: Lavoris Weathers, Appellant, v. David FARRISH d/b/a Farrish Trucking Company, Appellee.

In the Matter of the Guardianship of Amanda Hemphill-Weathers, A Minor: Lavoris Weathers, Appellant, v. David Farrish d/b/a Farrish Trucking Company, Appellee.

Nos. 1999-CA-00610-COA, 1999-CA-00611.

Court of Appeals of Mississippi.

January 16, 2001.

Rehearing Denied March 13, 2001.

Richard Benz Jr., Attorney for Appellant.

Marian Sykes Alexander, Greenville, Attorney for Appellee.

Before SOUTHWICK, P.J., IRVING, and MYERS, JJ.

SOUTHWICK, P.J., for the Court:

¶ 1. The alleged father of two minor children brought a petition to set aside litigation settlements entered on the children's behalf six years earlier. The petitioner had not been joined in the earlier action, an omission that he argues made the settlements void. The Chancery Court of Leflore County dismissed the petition. The putative father appealed. He alleges that he was the children's father and should have been joined in the settlement proceedings. We disagree and affirm.

FACTS

¶ 2. The two minor children were injured in an automobile-truck accident in August 1991. A truck driven by an employee of Farrish Trucking Company collided with the van that carried the children and several other people. One child, Amanda, was born in 1990 and the other, Lavoris, Jr., was born in 1988. Martha Hemphill, the mother of these two children, through the effort of counsel reached a settlement with Farrish. Hemphill and her two children attended a settlement hearing in October of 1992. By statute, a court may approve settlement of a minor's unliquidated claim for less than $10,000 without the appointment of a guardian. Miss.Code Ann. § 93-13-211 (Rev.1994). The chancellor approved Lavoris's settlement of less than $10,000 without a guardianship first being established. He also named Hemphill as guardian for Amanda and approved that child's settlement worth more than $10,000.

¶ 3. In both children's petition for settlement, Hemphill named Lavoris Weathers, Sr. as the father. She alleged that she and Weathers had never married, that he did not live with them and did not provide monetary support for either child. Six years later, though, the putative father, Weathers, petitioned the court to set aside both settlement orders. Weathers argued that the orders were void because he was not joined as a party. In contrast to what the mother claimed in the 1992 pleadings, Weathers now asserted that he had been living with her and the children at the time of the settlement and provided "regular support for the minor." Farrish filed a motion to dismiss. An evidentiary hearing was held in which Weathers testified that he had known about the litigation while it was occurring, that he was aware of the settlements approximately from the time that they were entered, and that he had a general understanding from the beginning about the details of the settlement. No proof of Weathers's paternity was presented. The record from the 1992 hearing revealed that Hemphill testified that Weathers did not live with the family nor did he support them.

¶ 4. The chancellor found that Weathers had never been adjudged the father of either child. Neither was there proof that Weathers had been named as the father on either child's birth certificate. Instead, affidavits from the State Board of Health were acquired stating that no birth certificate for either child was on file. Relying on this evidence, the chancellor held that Weathers did not have to receive notice of the 1992 proceedings on the settlement. The court also found that the question of paternity was now irrelevant since the mother had the right to act on her own in 1992. Weathers also was found to have waited too long to employ Rule 60(b) in seeking relief from a final judgment. Farrish's motion to dismiss was granted. Weathers appeals.

DISCUSSION

¶ 5. The initial legal issue is whether the chancellor in the 1992 settlement hearing had the authority to permit the settlement of the two minor children's claims without the joinder of the putative father. A statute requires that both parents be given notice of proceedings involving the guardianship of their minor children:

In all proceedings involving a ward and brought under Chapter 13, Title 93, Mississippi Code of 1972, except as hereinafter provided, the proceedings shall join as defendants the parents or parent of the ward then living.... Process need not be served hereunder, however, if the parent or parents then living ... shall unite with the guardian in his petition.

Miss Code Ann. § 93-13-281 (Rev.1994). The referenced Chapter 13 of Title 93 contains the general sections on guardians and wards. The putative father argues that this statute requires that he be joined as a party to the settlement in order for the settlement order to be valid.

¶ 6. The questions before us are straightforward enough. The starting premise is that despite several alternative means to have paternity proven, Weathers has never been recognized by law as the father. In that event, is there only one "parent" for purposes of the just-quoted statute for joinder of parties? We consider statutory construction issues in finding an answer to that question. It is also necessary to examine the effect of the assertions in the 1992 proceedings that the father was known but that he was nowhere to be found and did not support the children. If six years later the putative father proves that he was not only in the picture, but in the home and supporting the family at the time of the judgment, is the judgment subject to being set aside?

¶ 7. We dispense with a few preliminary factual issues. There was testimony at the 1998 hearing that Weathers and Hemphill may have sought to be married or even had a ceremony, but no records were produced of the marriage. If the marriage occurred, it was after the 1992 settlement. No birth certificates were submitted for either child. Had there been, proof would have existed of whether anyone was named on them as the father of either child. The evidence supports that at the time of the 1992 settlements, Weathers and Hemphill were unmarried and no adjudication nor official record in which Weathers asserted paternity existed.

A. Procedures for assertion of paternity

¶ 8. The means to assert paternity in 1992 were several. A statute provided that a mother, child or state agency could institute a paternity action. Miss.Code Ann. § 93-9-9, as amended 1989 Miss. Laws ch. 438, § 1.¹ The statute has since been amended to permit the purported father to bring suit as well,² but in 1992 the statute primarily was a means by which paternity could be proved by someone seeking support for the child. There is no assertion that this statute has ever been utilized by the parties.

¶ 9. In addition, the father could have had his name on the child's birth certificate. This could have been done at the initial time that information was given to the State Board of Health or, in 1992, within one year of the child's birth. Miss. Code Ann. § 41-57-23(2), as amended 1989 Miss. Laws ch. 511, § 3. The one year limitation has since been changed. Miss. Code Ann. § 41-57-23(2) (Supp.2000) & § 93-9-9(3) (Supp.2000).

¶ 10. Finally, in 1992 a father had at least one other option to prove his paternity. A statute permitted chancery courts "to entertain suits for the custody, care, support and maintenance" of children, without a requirement that there be a pending divorce proceeding. Miss.Code Ann. § 93-11-65 (Rev.1994). The Supreme Court recognized this statute as the mechanism for a father of an illegitimate to enforce custody, visitation and other rights, which may require initial proof of paternity. Smith v. Watson, 425 So.2d 1030, 1032 (Miss.1983). Since its amendment to permit utilization by a father, section 93-9-9 may be the most direct means for a father to prove paternity.

The Supreme Court held that an action to prove paternity that was not dependent upon section 93-9-9 (which has its own statute of limitations) must be brought within the period of the general statute of limitations. Johnson v. Ladner, 563 So.2d 1368, 1370 (Miss.1990). In 1992 the general statute of limitations had recently been changed to three years; as to any cause of action that accrued before July 1, 1989, it remained six years. Miss.Code Ann. § 15-1-49 (1972) (amended from six years to three years as to causes of action that accrued after June 30, 1989, 1989 Miss. laws, ch. 311, § 7). Weathers was not time-barred from attempting to prove his paternity had he so desired of the children born in 1988 and 1990.

¶ 11. There is no evidence that either Weathers or the children's mother, Martha Hemphill, even until this date, has utilized any of the procedures to have Weathers declared the father.³ Even in the petition to set aside the earlier settlement Weathers did not seek an adjudication that he was the father, nor offer any proof. The defendant Farrish filed a motion to require Weathers to submit to a blood test. That motion was never ruled upon as the chancellor granted the motion to dismiss.

¶ 12. Therefore, in 1992 at the time of settlement there was no legally recognized father. We examine other facets of the issue before deciding whether Weathers nonetheless had to receive notice of the guardianship as at least a possible parent of the wards.

B. Custodial rights to illegitimate child

¶ 13. Farrish presents arguments that the mother of an illegitimate child has sole custody. A specific exception in the guardianship notice statute requires joinder of both parents unless custody has been awarded only to one parent by decree. In such a case, only the custodial parent must be joined. Miss. Code Ann. Sec. 93-13-281 (Rev.1994). No decree gave the children's mother exclusive custody, but it is argued that by operation of law she had such custody. The Supreme Court...