Muse v. Hutchins, 89-CA-248
| Citation | 559 So.2d 1031 |
| Decision Date | 04 April 1990 |
| Docket Number | No. 89-CA-248,89-CA-248 |
| Court | United States State Supreme Court of Mississippi |
| Parties | Mrs. Kenneth MUSE v. Michael Lee HUTCHINS & Mrs. G.L. Hutchins. |
Jacque Bergman, L.C. James, James & Associates, Jackson, for appellant.
Merrida P. Coxwell, Jr., Percy S. Stanfield, Stanfield Carmody & Coxwell, Jackson, for appellee.
Before HAWKINS, P.J., and SULLIVAN and ANDERSON, JJ.
In September of 1987, Laura Muse Hutchins filed a Complaint for Divorce against her husband, Michael Lee Hutchins. Thereafter she disappeared on December 15, 1987, and her body was discovered on January 26, 1988. She had been murdered.
After Laura's disappearance Hutchins moved with the children into the residence of his mother, Mrs. G.L. Hutchins. On February 1, 1988, Mrs. G.L. Hutchins adopted the two children. On February 25, 1988, some three weeks later, Mrs. Kenneth Muse, Laura's mother and maternal grandmother of the children, filed a complaint for visitation rights, and on March 23, 1988, Mrs. Muse filed a motion to join Mrs. Hutchins as a party defendant. The suit was amended to request visitation rights or custody.
There was pending in the suit filed by Mrs. Muse a motion filed by Mrs. Hutchins to dismiss the bill of complaint for visitation rights. A hearing was held for temporary visitation rights on March 24, 1988, at which time Mrs. Hutchins testified that she had legally adopted her grandchildren on February 1, 1988. At the time of this hearing, her son resided in her home with her and the children. The record reflects that initially Mrs. Muse was allowed to visit the children at her option but for the two months prior to the hearing visitation had been restricted to every other Thursday from 3:00 to 5:00 P.M. The record reveals that Mrs. Muse had a warm and loving relationship with the two children. The visitation rights of Mrs. Muse, however, were curtailed, in part, because Mrs. Muse accused the children's father of murdering their mother.
Mrs. Muse testified that prior to her daughter's disappearance, the children were at her home every day of the week and were able to spend the night and stay over on weekends. During that period Mike Hutchins never demonstrated any opposition to the role which Mrs. Muse played in the lives of her grandchildren. However, after Laura disappeared, Mrs. Muse testified that Hutchins never brought the children back. Mrs. Muse is of the opinion that no member of her family had ever mentioned to the children that their father may have murdered their mother. On one occasion when her granddaughter asked her where her momma was, Mrs. Muse replied, "Ask your daddy." But Mrs. Muse explained that she responded in this manner because she did not know what to say to the child as this question had shocked her.
On April 1, 1988, Chancellor Paul Alexander rendered an opinion which stated in part:
The Court is of the opinion that it is not authorized to grant temporary visitation rights but is of the opinion that it has the right to grant permanent visitation rights upon a hearing if it finds that permanent visitation rights are appropriate in all of the circumstances. It is not necessary at this time for the Court to go into all of the details of this case. It is sufficient to say that when all of the pleadings are in order and the discovery, if any, is complete, this matter should then be set down for a hearing on the amount of visitation that should be granted to the Plaintiffs, if any.
In November of 1988, Chancellor Alexander held a hearing on the pending Motion to Dismiss. The testimony was essentially the same as that at the previous hearing. From the bench, Chancellor Alexander ruled:
In connection with this matter the Court would not be at all disappointed if either side appealed in connection with this. In any event, in this particular situation the adoption has been granted. At that time it was not necessary and as I understand it still is not necessary that grandparents be made a party to an adoption proceedings [sic]. The Court was of the opinion at the time that the adoption would be in the best interest of the children. At the time of the adoption Mrs. G.L. Hutchins assumed responsibility of the children. The Court is of the opinion that Mrs. Linda Hutchins is the recognized adopting parent of these children and that she alone has the right to the children. I sincerely hope that Mrs. Hutchins will allow Mrs. Muse to visit with the children and allow the children to visit with her. I really believe that under the law as it now stands Mrs. Hutchins is the only one that has any legal right to the children.
The chancellor went on to say, "... I'm going to enter an order dismissing these proceedings as a matter of law and I think that is all I can do." Unfortunately, Chancellor Alexander died November 30, 1988, before a final order could be submitted.
On December 21, 1988, a Motion to Correct Final Judgment and/or Court's Opinion Denying Visitation Rights or Custody Through Inadvertence, Accident or Mistake, Reason Justifying Relief or, in the Alternative, for a New Trial was filed by Mrs. Muse. This motion was heard on January 17, 1989, before Acting Chancellor R.P. Sugg, serving as an emergency appointee to the position left vacant by the death of Chancellor Alexander. In his written opinion, Chancellor Sugg said:
Plaintiff urges the Court to modify the finding of Judge Alexander based upon an amendment to Section 93-16-7 as originally enacted by the Legislature in 1983 so that the chapter authorizing visitation rights of natural grandparents shall not apply to any child who has been adopted, "by order or decree of any court unless one of the legal parents of such child is also a natural parent of such child." (Emphasis supplied).
The adopting parent is not the natural parent of the child, but is the paternal grandmother; therefore, the chapter does not apply in this case. Until Olson v. Flynn [sic] is overturned or modified by the Court, or the statute amended, Olson must be followed. Accordingly, the motion to modify is overruled for two reasons. It was not filed within ten days required by 52(b) and it has no merit.
A Final Judgment dismissing the Complaint for Visitation, denying the Motion to Correct Final Judgment and fully incorporating the bench opinion was entered January 27, 1989.
The thrust of this argument by Mrs. Muse is that it was error to apply the case of Olson v. Flinn, 484 So.2d 1015 (Miss.1986), rather than the Grandparents Visitation Rights Act, amended on March 4, 1986.
Olson v. Flinn, 484 So.2d at 1018, held that "an adoption by a step-parent after the death of one of the child's natural parents terminates the visitation rights of those natural grandparents, except as to the natural parent who is the spouse of the adopting parent."
Sec. 93-16-1, Miss.Code Ann. (Supp.1989), states:
(1) Any court of this state which is competent to decide child custody matters shall have jurisdiction to grant visitation rights with a minor child or children to the grandparents of such minor child or children as provided in this chapter.
After the Olson decision, Sec. 93-16-3, Miss.Code Ann. (Supp.1989), was amended to provide, in pertinent part:
... whenever one (1) of the parents of a minor child dies, either parent of the child's parent ... who has died may, ... petition the chancery court in which the child resides, and seek visitation rights with such child.
Up to this point in the proceedings under her theory of law, Mrs. Muse would have been entitled to petition for visitation. However, Sec. 93-16-7, Miss.Code Ann. (Supp.1989), was also amended and serves to limit the application of the above statutes, as follows:
This chapter shall not apply to the granting of visitation rights to the natural grandparents of any child who has been adopted by order or decree of any court unless one (1) of the legal parents is also a natural parent of such child. This chapter shall apply to persons who become grandparents of a child by virtue of adoption.
Our recent decision of Howell v. Rogers, 551 So.2d 904 (Miss.1989), did involve an application of the amended Grandparents Visitation Statutes. However, in that case, the natural mother and father had divorced and the custody of the child was awarded to the natural mother. The natural mother and step-father then adopted the child and subsequent to the adoption, the natural father died. We held that an adoption by a step-parent after the termination of parental rights does not terminate the visitation rights of the natural grandparents, the parents of one of the natural parents whose parental rights were terminated. Unfortunately for Mrs. Muse, in the current...
To continue reading
Request your trial
-
White v. Thompson
...of visitation in the absence of statute, Matter Of Adoption Of A Minor, 558 So.2d 854, 856 (Miss.1990); see also Muse v. Hutchins, 559 So.2d 1031, 1033-35 (Miss.1990). For better or for worse, they have no right of custody, as we have no statute providing such. These premises are reflected ......
-
In re Adoption of DNT
...of D.T.H., 748 So.2d 853, 855 (Miss.Ct.App.1999) (In re Adoption of J.J.G., 736 So.2d 1037, 1038 (Miss.1999)) (citing Muse v. Hutchins, 559 So.2d 1031, 1035 (Miss.1990)); See Dep't of Human Services v. Smith, 627 So.2d 352, 353 (Miss.1993). "Factors to be considered in determining the child......
-
Misso v. Oliver
...'without power to disturb such a determination.' " American Fire Protection, 653 So.2d 1387, 1390 (Miss.1995) (quoting Muse v. Hutchins, 559 So.2d 1031, 1034 (Miss.1990)). "Unless the lower court abused its discretion in finding that the verdict was not against the overwhelming weight of th......
-
Harris v. Allstate Ins. Co.
...418, 426 (Miss.1992). Absent an abuse of discretion, this Court is "without power to disturb such a determination." Muse v. Hutchins, 559 So.2d 1031, 1034 (Miss. 1990). Consistent with this standard, we find that the following evidence supports the jury's verdict that Hughes' actions were i......