J.E.W. v. T.G.S., 2004-CA-02458-SCT.

• Decision Date: 29 June 2006
• Docket Number: No. 2004-CA-02458-SCT.,2004-CA-02458-SCT.
• Citation: 935 So.2d 954
• Parties: J.E.W. v. T.G.S.
• Court: Mississippi Supreme Court

Page 954

935 So.2d 954

J.E.W. v. T.G.S.

No. 2004-CA-02458-SCT.

Supreme Court of Mississippi.

June 29, 2006.

Rehearing Denied August 24, 2006.

Patricia Peterson Smith, attorney for appellant.

Lee Davis Thames, Jr., Jackson, J. Mack Varner, Vicksburg, attorneys for appellee.

EN BANC.

CARLSON, Justice, for the Court.

¶ 1. Today's appeal involves a request by a minor child's mother that we refuse to give full faith and credit to two ex parte orders entered by a South Carolina trial court concerning child custody issues litigated by her and the child's father in both the South Carolina and Mississippi courts. The Warren County Chancery Court entered an order on a petition for writ of habeas corpus affording full faith and credit to the South Carolina court orders. The mother asserts that she was denied due process, and that the execution of the Mississippi chancery court order should have been stayed pending appeal, pursuant to our rules of appellate procedure. We find that the mother's request for a stay of execution of the chancery court order is without merit. Additionally, because the County Court of Warren County has awarded custody of the minor child to the father in separate proceedings, and that judgment is final, the issue of child custody is moot. Thus, as to the issues raised, we affirm in part, and dismiss in part.

FACTS AND PROCEEDINGS IN THE TRIAL COURT

¶ 2. T.G.S. (Tom) and J.E.W. (Jan) are the natural parents of B.A.S. (Bob), born out of wedlock on June 5, 2003, in Vicksburg, where Tom and Jan were then living.¹ On January 31, 2004, Tom, Jan, and Bob moved to Atlanta, Georgia. Within weeks, because of continuing difficulties in their relationship, Jan and Tom parted ways, and Jan, who was essentially a life-long resident of Warren County, returned to Vicksburg with Bob. However, Jan and Tom, without court intervention, quickly agreed to an alternating schedule of shared custody whereby each parent had separate custody of Bob every other month. When Tom took custody of Bob in August, 2004, he returned with Bob, not to Atlanta, but instead, to his home state of South Carolina. Likewise, instead of returning Bob to Jan's custody pursuant to this informal agreement, Tom, in November, 2004, filed a petition for child custody and support and restraining order in the Family Court of the Fourth Judicial Circuit of Darlington County, South Carolina. The South Carolina family court promptly entered an ex parte temporary injunction, enjoining both Tom and Jan from removing Bob from the state of South Carolina, pending a temporary hearing on the issues of child custody and child support and other related issues.

¶ 3. Within days of the entry of this ex parte restraining order, Jan and her sister, without knowledge of the South Carolina court action, traveled to South Carolina to retrieve Bob pursuant to a pre-arranged agreement between Jan and Tom. Although the method of notice is disputed, it is undisputed that by the time Jan and her sister left South Carolina with Bob, Jan was aware of the South Carolina family court temporary restraining order prohibiting Bob from being removed from the state of South Carolina. After returning to Mississippi, Jan, on November 16, 2004, filed a petition for child custody in the County Court of Warren County. Upon learning that Jan had removed Bob from the state of South Carolina, in violation of its previously entered order, the South Carolina family court, by way of a second ex parte order entered on November 22, 2004, awarded Tom custody of Bob pending a hearing, and directed "all law enforcement officers" to assist Tom in retrieving Bob.

¶ 4. On November 29, 2004, Tom filed a petition for a writ of habeas corpus in the Chancery Court of Warren County requesting, inter alia, that full faith and credit be given to the previously entered South Carolina temporary injunction and custody order. On November 30, 2004, a hearing was conducted before Chancellor Vicki R. Barnes, and both Tom and Jan were personally present, and each was represented by Mississippi counsel. The chancellor received testimony from Tom and Jan as well as S.C. (Sally), Jan's sister and B.W. (Betty), Jan's mother. Exhibits were also received into evidence, including certified copies of the relevant South Carolina state court documents, and the petition for child custody which Jan had filed in the County Court of Warren County. After hearing closing arguments from the attorneys in this two-day hearing, the chancellor immediately thereafter rendered her bench ruling, which stated in pertinent part:

The Court notes that ... a copy of a Temporary Injunction, which was certified by South Carolina was filed as Exhibit B. That the Temporary Injunction was entered on November 12th, 2004, by the Family Court of the Fourth Judicial Circuit County of Darlington, South Carolina. That this was an ex parte order without notice to the Respondent, [J.E.W.]. That also as part of this file is a certified copy of an ex parte custody order entered on November the 22nd of 2004, by the same Court, granting ex parte custody to the Petitioner, [T.G.S.]. The Court also notes that a hearing has been scheduled in South Carolina for January 21st of 2005, at 9:45 a.m., where that is set to determine the custody matter and other issues.

The Court has also been advised as part of the testimony that the Respondent has a hearing scheduled for January 14th of 2005, on the Respondent's Motion to Dismiss or the Alternate Relief Contesting the Jurisdiction of the South Carolina Court.

The Court has also been advised through testimony that the Respondent has filed a custody action in the Warren County Court.

This Court realizes that this dispute involves the issues of custody and proper service of process.

The Court finds that today the only issue before this Court is that of whether or not the South Carolina Order should be afforded full faith and credit, that this is not a custody hearing to be determined by this Court at this time.

The Court finds that the issue regarding the service of process has to be brought before the Darlington County, South Carolina Family Court and that Court would have to make a determination. That both parties are represented by attorneys in South Carolina.

The Court finds after considering all of these facts and the evidence presented as well as the applicable law, that the Petition for Habeas Corpus should be granted and the Court has no choice but to return the minor child to the father until there is a hearing by the Family Court of Darlington, South Carolina. Therefore, the Court must, at this time, give full faith and credit to the Darlington, South Carolina Court Order.

¶ 5. After the bench ruling from the chancery court, but prior to entry of the written judgment consistent with the bench ruling, Jan, through counsel, filed a motion for a stay of execution of the chancery court judgment pending appeal at 2:38 p.m., on December 1, 2004, the same day as the bench ruling. It was not until 3:23 p.m., on December 1, 2004, that the chancery court judgment was entered. This judgment stated, inter alia, that the South Carolina temporary injunction and custody order would be afforded full faith and credit and that Tom would receive immediate custody of Bob. At 3:25 p.m., on December 1, 2004, Jan filed her notice of appeal with the trial court. On December 2, 2004, the chancellor entered an order denying Jan's motion for stay of execution of the judgment and directing Jan to deliver Bob "immediately to the Petitioner, T.G. S., in accordance with the Judgment entered in this cause on December 1, 2004." Likewise on December 2, 2004 Jan, through counsel, filed with this Court an Emergency Petition for Extraordinary Relief or in the Alternative Emergency Petition for Stay Pending Appeal, and by a single-justice order entered on December 3, 2004, Tom and the Warren County Chancery Court were given the opportunity to respond to Jan's emergency petition. See M.R.A.P. 21. After receiving a response from Chancellor Barnes and Jan's reply to that response, a three-justice panel of this Court, by order dated December 31, 2004, and entered on January 5, 2005, denied Jan's Emergency Petition for Extraordinary Relief or in the Alternative Emergency Petition for Stay Pending Appeal.

¶ 6. After the filing of the notice of appeal, but prior to this Court's receipt of the trial court record in the chancery court proceedings, the County Court of Warren County conducted a two-day hearing on Jan's petition for child custody, and on March 16, 2005, the county court granted "the permanent care, custody and control" of Bob to Tom, and all remaining issues, "including but not limited to, visitation and child support [were] deferred until a future hearing" to be scheduled by the County Court of Warren County. Thereafter, Jan appealed the county court's order directly to this Court. On July 26, 2005, a three-justice panel of this Court granted Tom's motion to dismiss Jan's appeal of the county court order. The panel order of July 26, 2005, stated, inter alia, that Jan should have appealed the county court order to the Chancery Court of Warren County, and that this Court thus lacked jurisdiction to consider Jan's appeal of the custody order entered by the County Court of Warren County. Accordingly, Jan's appeal of the county court custody order was dismissed, without prejudice, and the mandate issued from this Court on August 16, 2005. Jan then filed a motion with the county court for an out-of-time appeal of the county court custody order to the chancery court. The county court denied the motion for an out-of-time appeal. Finally, Jan filed a motion with the county court requesting the court to reconsider the denial of an out-of-time appeal, or in the alternative to grant relief under Miss. R. Civ. P. 60(b). The record is silent as to the disposition of this motion to reconsider by the County Court of Warren County....