Pope v. Fountain, 2017-CA-01060-COA
| Decision Date | 17 December 2019 |
| Docket Number | NO. 2017-CA-01060-COA,2017-CA-01060-COA |
| Citation | 287 So.3d 988 |
| Parties | Michelle POPE, Appellant v. Daniel FOUNTAIN, Appellee |
| Court | Mississippi Court of Appeals |
BEFORE BARNES, C.J., McCARTY AND C. WILSON, JJ.
C. WILSON, J., FOR THE COURT:
¶1. This is a paternity matter. Although there are only two parties to this action, the case really involves three adults: Daniel Fountain, Michelle Pope, and Brian Martin; and one minor child: J.M.
¶2. On June 15, 2017, the George County Chancery Court entered an order establishing Fountain as the biological father of J.M. The court also entered a temporary order granting Fountain visitation with J.M. and requiring Fountain to pay child support. Pope, J.M.'s mother, now appeals from the judgment establishing paternity and the temporary order. Pope contends that the chancery court erred in entering the paternity and temporary orders because Martin (Pope's ex-husband and the man who had been previously named as J.M.'s legal father) should have been added as a necessary party to this action under Mississippi Rule of Civil Procedure 19.
¶3. We agree with Pope that Martin should have been added as a party to this action. Therefore, we reverse the chancellor's judgment establishing paternity and remand for further proceedings once Martin has been properly joined. We further find that we lack jurisdiction to address the temporary order on appeal.
BACKGROUND
¶4. Pope and Martin married on December 23, 1994. Around 2006, Martin had a vasectomy
.1 In 2007, Pope (while still legally married to, but separated from, Martin) engaged in a sexual relationship with Fountain. As a result of her relationship with Fountain, Pope became pregnant. And in October 2007, Pope gave birth to J.M.
¶5. According to sworn testimony, Martin has known since J.M.'s conception that he was not J.M.'s biological father.2 In fact, upon review of the record, it appears that Martin, Pope, and Fountain each knew, from the time that J.M. was born, that Fountain was J.M.'s biological father. Nonetheless, Pope listed Martin as the father on J.M.'s birth certificate. It is unclear whether Martin and Fountain agreed to this before Pope listed Martin as J.M.'s father, but both Martin and Fountain were, at the least, aware soon after and did not dispute Pope's action.3
¶6. Notwithstanding Martin being named the father on J.M.'s birth certificate and providing financial support for J.M., Pope also allowed Fountain to have significant visitation with J.M. from the time that he was six months old.4 Pope and Fountain agreed to this visitation; it was not court ordered. According to Pope, she worked a second job on the weekends, and it was helpful for Fountain to keep J.M. while she was working. Regardless, it is not disputed that Fountain has maintained a relationship with J.M. throughout his life, despite Martin being named J.M.'s legal father.
¶7. On October 3, 2012, when J.M. was five years old, Pope and Martin divorced. J.M. is listed as a child of Pope and Martin's marriage in the divorce decree entered by the George County Chancery Court. The decree, which is still operative, provides that Pope and Martin will enjoy joint legal custody of J.M., that Martin will pay child support and continue providing J.M. with medical and dental insurance, and that Martin will have visitation with J.M.5
PROCEDURAL HISTORY
¶8. Approximately three and a half years after Pope and Martin's divorce, on March 21, 2016, Fountain filed an emergency motion for ex parte relief in the Harrison County Chancery Court, Second Judicial District. Fountain alleged that Pope had abused J.M. (by spanking him with a wooden paddle) and requested temporary sole legal and physical custody of J.M. Fountain named Pope as the sole defendant and did not include Martin as a party to the action. That same day, the court held an ex parte hearing. The court then entered an emergency ex parte order giving Fountain temporary sole physical custody of J.M. and prohibiting Pope from being within 1,000 feet of J.M., until further ordered by the court.
¶9. Following the entry of the emergency ex parte order, Pope hired counsel. On March 24, 2016, Pope filed a motion to dismiss or to transfer for improper jurisdiction. A few weeks later, the Harrison County Chancery Court, Second Judicial District, granted the motion and transferred the case to the George County Chancery Court.
¶10. On April 11, 2016, Pope filed a separate petition to establish paternity in the George County Chancery Court. In her petition, Pope alleged that "she and [Fountain] engaged in a sexual relationship that resulted in the conception of their child, namely, [J.M.], born [in October 2007]." Pope named Fountain as the sole defendant to the petition and did not include Martin as a party to the action.
¶11. On April 29, 2016, the George County Chancery Court entered an order consolidating the two cases between Pope and Fountain. On the same date, Fountain filed a response and counter-petition to Pope's petition to establish paternity. In his response, Fountain admitted that he is the biological father of J.M. and that an order establishing paternity should be entered. In his counter-petition, Fountain requested immediate physical custody of J.M.; temporary child support; a full hearing on the merits to determine permanent custody, visitation, and support rights and obligations of the parties; and an appointment of a guardian ad litem (GAL) for J.M. Following a hearing, the George County Chancery Court entered a temporary order awarding Pope and Fountain joint legal custody, with Pope having visitation, and appointing a GAL for J.M. ¶12. On August 2, 2016, the GAL filed her initial investigative report with the court, recommending that J.M. be placed in Pope's custody and have liberal visitation with Fountain. On August 3, 2016, the court held another hearing. Prior to this hearing, the parties conferenced with the chancellor off the record. Apparently, during the off-record conference, the parties raised the question of whether Martin (J.M.'s legal father pursuant to J.M.'s birth certificate and Pope and Martin's divorce decree) was a necessary party to the action. Once back on the record, the chancellor appeared to agree, stating, 6
¶13. Despite this recognition, however, the chancellor proceeded with the August 3 hearing. At the end of the hearing, the chancellor found the court lacked the necessary and proper parties to make a determination on paternity: "Although the proof is very strong, we still need Mr. Martin to weigh [in] on this one way or the other." On September 13, 2016, the court entered another temporary order. The pertinent parts of the temporary order stated as follows:
On September 26, 2016, the court amended the September 13, 2016 temporary order. In this amendment, the court ordered the GAL to file a petition to disestablish Martin's paternity and to contact Martin to determine whether he would agree to disestablish paternity. Martin was not—and has yet to be—added as a party to this action.
¶14. On November 30, 2016, Pope filed a motion to dismiss her paternity action. Fountain filed a response in objection, and on December 28, 2016, the court entered an order denying Pope's motion to dismiss. The order also directed the GAL to file a petition to establish Fountain as J.M.'s father based on the parties' testimony that there is DNA evidence of Fountain's paternity. Although Pope objected to the court's order, on February 17, 2017, the GAL filed a complaint, on behalf of J.M., to establish paternity, child custody, and other relief.7 This complaint was filed in the ongoing civil action between Fountain and Pope and listed Pope and Fountain as the sole defendants. The complaint did not name Martin as a party.8
¶15. On May 22, 2017, the court held another hearing on the outstanding motions. Although Martin had not been named as a party to the action or served with any pleadings, he attended the May 22 hearing and provided testimony as a witness. Pope and Fountain also testified. While no one testifying at the May 22 hearing disputed that Fountain is the biological father of J.M., Martin testified that he wanted to remain J.M.'s legal father and that he had no intention to disestablish paternity.
¶16. Nonetheless, on June 15, 2017, the court entered a judgment establishing paternity and adjudicating Fountain as J.M.'s biological father.9 On the same date, the court also entered a temporary order granting Fountain unsupervised visitation with J.M. every other weekend and requiring Fountain to pay child support for J.M., until further order of the court. On July 14, 2017, Pope filed a notice of appeal.
DISCUSSION
¶17. On appeal, Pope contends that the chancery court erred in entering the judgment establishing paternity and in entering the temporary order. We will address the judgment establishing paternity, but we lack jurisdiction to address the temporary order. See McDonald v. McDonald , 876 So. 2d 296, 298 (¶8) (Miss. 2004) () (quoting McDonald v. McDonald , 850 So. 2d 1182, 1193 (¶46) (Miss. Ct. App. 2002) ).
¶18. Pope's primary assertion regarding the judgment establishing paternity is that Martin should have been joined as a party under Mississippi Rule of...
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Stephens v. Palmer
...Civil Procedure 19. The chancellor's application of Rule 19 is a matter of law, so, as stated above, we apply a de novo review. Pope v. Fountain , 287 So. 3d 988, 993 (¶18) (Miss. Ct. App. 2019) (citing Williams v. Williams , 264 So. 3d 722, 725 (¶5) (Miss. 2019) ). ¶14. A necessary party i......