J.P.M. v. T.D.M., 2005-CA-00320-SCT.

• Court: United States State Supreme Court of Mississippi
• Citation: 932 So.2d 760
• Docket Number: No. 2005-CA-00320-SCT.,2005-CA-00320-SCT.
• Parties: J.P.M. v. T.D.M.
• Decision Date: 29 June 2006

Page 760

932 So.2d 760

J.P.M. v. T.D.M.

No. 2005-CA-00320-SCT.

Supreme Court of Mississippi.

June 29, 2006.

COPYRIGHT MATERIAL OMITTED

Joe Morgan Wilson, Senatobia, attorney for appellant.

Joseph Ratcliff Dulaney, Tunica, attorney for appellee.

EN BANC.

GRAVES, Justice, for the Court.

¶ 1. Husband and wife were married, and a child was born to the marriage five months later. The couple separated, and the husband sued for divorce years later, after he had assumed the primary childrearing responsibilities at the wife's request. Husband sought custody of the child because of the wife's drug use. On the day the trial for divorce was scheduled to start, the wife told the chancellor in chambers there was a strong possibility the husband was not the child's biological father. Subsequent blood testing excluded the husband from being the child's biological father. The chancellor, however, found the husband to be the child's "father-in-fact" through judicial adoption and through judicial estoppel, awarded him physical custody of the child, and required the wife to pay child support to the husband. The wife now appeals the chancellor's ruling.

FACTUAL AND PROCEDURAL HISTORY

¶ 2. Tom Morgan (Tom) and Jane Morgan (Jane) were married in Tunica County on January 6, 1996, and a daughter, Catherine, was born of the marriage on June 21, 1996.¹ Tom and Jane finally separated on September 5, 1998, and Tom later filed a Complaint for Divorce and Other Relief on December 11, 2001. Tom alleged that Jane was guilty of cruel and inhuman treatment, adultery, habitual and excessive drug abuse, and also pleaded irreconcilable differences as grounds for divorce. Tom also sought temporary and permanent custody of Catherine and child support from Jane.

¶ 3. The chancellor held a hearing on December 12, 2001, and entered a temporary order which alternated custody of Catherine between Tom and Jane every two weeks. Tom later filed a motion on June 21, 2002, for a hearing and a preliminary injunction against Jane, seeking that her visitation with Catherine be under strict supervision by the court. Jane's counsel, Curt Crowley, filed a motion for a continuance on June 27, 2002, based on a conflict in his schedule, and further informed the court of his intent to withdraw from his representation of Jane.

¶ 4. Tom's motion came before the chancellor at a hearing on July 17, 2002. Joe Morgan Wilson entered an appearance as Jane's attorney at this hearing, replacing Crowley as counsel. Testimony regarding Jane's drug use was introduced during this hearing, and the chancellor issued a temporary order which awarded custody of Catherine to Tom, with Jane receiving visitation every other weekend. The chancellor also admonished Jane to get help for her drug use and ordered both parties to refrain from using any alcohol or illicit drugs while Catherine was in either party's physical custody. This order was to remain in place until a permanent order could be entered pursuant to a trial.

¶ 5. The divorce action was set for trial before the chancellor on October 28, 2002. Jane finally filed her Answer to Tom's Complaint for Divorce and asserted a Counter Complaint on that date. She admitted all of the allegations in Tom's complaint, which included assertions that Catherine was a child born to the marriage, that Tom should retain temporary custody of Catherine until this matter was finally adjudicated, that Tom should get permanent custody of Catherine, and that Tom should receive a reasonable amount of support and maintenance for Catherine. In Jane's Counter Complaint for Divorce, she asserted that Catherine was born of the marriage on June 21, 1996, she (Jane) should be awarded "paramount care, custody, and control of" Catherine, and Tom should have to pay her child support. Tom and Jane both signed an affidavit on October 28, 2002, indicating that they had agreed to an irreconcilable differences divorce and consented to have the court decide all issues concerning property settlement and child custody, maintenance, and visitation.

¶ 6. Before Tom began his case-in-chief on October 28, 2002, Jane informed her counsel that Tom might not be Catherine's natural father. This issue was brought ore tenus before the chancellor in chambers, and the chancellor instructed that this information should not be made known to anyone else, especially Catherine. At the trial on October 28, Tom introduced testimony of Jane's drug abuse, the less-than-ideal living conditions that Catherine was subjected to when in Jane's care, and the lack of stability in Jane's life to support his argument that it was in Catherine's best interests to be in his care and custody. Jane's counsel sought to refute the allegation that Tom was more suitable to retain primary custody of Catherine by pointing out that Tom had previously had a problem with alcohol and by showing that Tom's current sexual relationship with Kim Swindoll was adulterous, as Tom was still legally married to Jane at that time. At the conclusion of testimony on that day, the chancellor recessed the trial until November 19th.

¶ 7. Jane subsequently filed a Petition Requesting Blood Test and Other Relief on November 19, 2002. The chancellor entered an order on December 4, 2002, directing the parties to brief the legal issues concerning whether he could or should grant Jane's request for blood testing. The parties ultimately agreed to have a blood test done, and the chancellor signed an Agreed Order for Paternity Testing on January 29, 2003. The chancellor also held a closed hearing that same day, with only the parties and their attorneys present. At the end of the hearing, the chancellor presented Jane with two options in light of the paternity test which excluded Tom as the natural father. One option was to completely cut Tom out of Catherine's life by declaring that he had no parental rights; the other option was to continue to hold Tom out as Catherine's father and treat him no differently than if he were in fact Catherine's biological father. He did not require Jane to state which option she preferred at that time, but rather, admonished her to think long and hard about the implications of her decision. He also admonished the parties to work out and agree to a revised temporary custody order before the next hearing date.

¶ 8. In light of the January 29th hearing, Jane filed a Petition to Modify Former Temporary Order on February 18, 2003, seeking to have the prior temporary order of December 12, 2001, reinstated, which gave Tom and Jane sole physical custody of Catherine on an alternating two-week basis. Two days later, Jane filed a Petition Requesting Termination of Rights. In her petition, Jane asserted that she had attempted to negotiate a modified custody arrangement that was agreeable to Tom, that Tom insisted on retaining "paramount physical custody" of Catherine even though he was not her biological father, and that she wanted the court to terminate all of Tom's parental rights.

¶ 9. The chancellor held a hearing on March 25, 2003, on Jane's petition to terminate Tom's parental rights. In addition to both parties introducing testimony to show that each should be the proper custodian of Catherine, Nick Harrison, the man that Jane now asserts is Catherine's biological father, came forth to testify. Harrison testified that he did not recall having sexual relations with Jane during the Fall of 1995, when Catherine would have been conceived, though he did admit to having sex with Jane after Catherine was born. This testimony ran counter to Jane's assertions at a prior hearing that she had sex with Harrison during the time period of Catherine's conception. Harrison also testified that he had no plans to determine if he was Catherine's biological father (largely because he did not think he was her father), he had not established any kind of relationship with Catherine, and he had no plans on developing a relationship with Catherine even if he were determined to be her biological father. At the end of the hearing, the chancellor ruled that, under the facts presented to him, Tom Morgan would continue to be recognized as Catherine's "father in fact — either equitably through judicial adoption of some sort, or through judicial estoppel on the part of anyone complaining about it." His ruling was a "best interest of the child" determination based on Tom's prior relationship with Catherine, the fact that the putative father neither wanted to be adjudicated as Catherine's father nor pursue any relationship with her, and the fact that "there's nobody else in the wings, standing, clamoring to be a father to this child." The chancellor also provided Jane with more visitation rights, required her to submit to additional drug testing, and indicated that he would make his ultimate custody ruling at the next hearing.

¶ 10. The final hearing as to custody of Catherine was held on June 24, 2003. Both Tom and Jane testified that visitation was going more smoothly than at the time of the previous hearing, they were communicating better now, and Catherine seemed to have adjusted well to the current visitation schedule. Tom admitted that Jane had made great improvements in her personal life and that he did not have as much concern about Catherine being around Jane as he did previously. Tom even admitted that he did not require Jane to submit to additional drug testing ordered by the court because of his belief that she was "doing a lot better." Jane testified that she had found stable employment, she was completely drug-free, and she had made a complete lifestyle change from when she was using drugs. However, both Tom and Jane maintained that they should be the primary caregiver for Catherine. At the end of the hearing, the chancellor remarked about the significant changes in the cooperation and attitude of the parties and about Jane's abstention from drugs. Though he praised Jane's progress, the chancellor still expressed...