Waite v. Adkisson

• Decision Date: 13 August 2019
• Docket Number: NO. 2018-CA-00561-COA,2018-CA-00561-COA
• Citation: 282 So.3d 744
• Parties: Shelby WAITE, Appellant v. Justin ADKISSON, Appellee
• Court: Mississippi Court of Appeals

282 So.3d 744

Shelby WAITE, Appellant

v.Justin ADKISSON, Appellee

NO. 2018-CA-00561-COA

Court of Appeals of Mississippi.

August 13, 2019

ATTORNEYS FOR APPELLANT: DEREK L. HALL, MEGAN ELIZABETH TIMBS, Jackson

ATTORNEY FOR APPELLEE: CYNTHIA HEWES SPEETJENS

BEFORE J. WILSON, P.J., WESTBROOKS AND McDONALD, JJ.

J. WILSON, P.J., FOR THE COURT:

¶1. Shelby Waite filed a petition for a domestic abuse protection order under the Protection from Domestic Abuse Law (PDAL), Miss. Code Ann. § 93-21-1 et seq. (Rev. 2013), in the Madison County Chancery Court. The chancery court did not make a finding that Waite was or was not entitled to relief under the PDAL. Instead, the court granted a "permanent restraining order" under Rule 65 of the Mississippi Rules of Civil Procedure. Waite argues that the chancery court should have granted a protection order under the PDAL, and she asks this Court to reverse and render a judgment to that effect.

¶2. We hold that the chancery court erred by granting a permanent restraining order without any finding that Waite was entitled to relief under the PDAL. In the absence of a finding of abuse under the PDAL, there was no basis for the court to grant permanent injunctive relief. However, we cannot render judgment in favor of Waite because the chancery court, as the finder of fact, must determine whether she is entitled to relief under the PDAL. Therefore, we reverse and remand for a new hearing consistent with this opinion and for the chancery court to grant or deny Waite's petition for a protection order under the PDAL.

THE PROTECTION FROM DOMESTIC ABUSE LAW

¶3. Under the PDAL, "[a]ny person may seek a domestic abuse protection order for himself by filing a petition alleging abuse by the respondent." Miss. Code Ann. § 93-21-7(1) (Rev. 2013). In addition, any parent may seek a domestic abuse protection order on behalf of a minor child. Id. A petition may be filed in a municipal, justice, county, or chancery court in the municipality or county where the abuse occurred or where the petitioner resides. Miss. Code Ann. § 93-21-5(1) - (2) (Rev. 2013). The petition should allege, inter alia, "[t]he facts and circumstances concerning the alleged abuse." Miss. Code Ann. § 93-21-9(1)(b) (Rev. 2013). The PDAL defines "Abuse" to include

the occurrence of one or more of the following acts between spouses, former spouses, persons living as spouses or who formerly lived as spouses, persons having a child or children in common, other individuals related by consanguinity or affinity who reside together or who formerly resided together or between individuals who have a current or former dating relationship:

(i) Attempting to cause or intentionally, knowingly or recklessly causing bodily injury or serious bodily injury with or without a deadly weapon;

(ii) Placing, by physical menace or threat, another in fear of imminent serious bodily injury;

(iii) Criminal sexual conduct committed against a minor within the meaning of Section 97-5-23;

(iv) Stalking within the meaning of Section 97-3-107;

(v) Cyberstalking within the meaning of Section 97-45-15; or

(vi) Sexual offenses within the meaning of Section 97-3-65 or 97-3-95.

"Abuse" does not include any act of self-defense.

Miss. Code Ann. § 93-21-3(a) (Rev. 2013).

¶4. The PDAL permits the court to "issue an emergency domestic abuse protection order without prior notice to the respondent upon good cause shown by the petitioner." Miss. Code Ann. § 93-21-13(1)(a) (Rev. 2013). Good cause includes the "[i]mmediate and present danger of abuse to the petitioner" or to "any minor children." Id. If an emergency domestic abuse protection order is entered, the respondent must be personally served with notice of entry of the order. Id. An emergency order is effective for ten days or until a hearing may be held, whichever occurs first. Id. § 93-21-13(1)(c). If the hearing is continued, the court may extend the emergency order for up to twenty days, "as it deems necessary for the protection of the abused person." Id.

¶5. Before a temporary or final domestic abuse protection order may be entered, the respondent is entitled to notice of a hearing and an opportunity to be heard. Miss. Code Ann. § 93-21-15(1)(a), (2)(a) (Supp. 2017). After a hearing, if the chancery or county court "find[s] that the petitioner has proved the existence of abuse by a preponderance of the evidence," the court may "grant a final domestic abuse protection order ... to bring about a cessation of abuse of the petitioner" and "any minor children." Miss. Code Ann. § 93-21-15(2)(a).¹ "[A] final domestic abuse protection order ... shall be effective for such time period as the court deems appropriate." Id. § 93-21-15(2)(b).² "The expiration date ... shall be clearly stated in the order." Id. "Every [final] domestic abuse protection order ... shall set forth the reasons for its issuance, shall contain specific findings of fact regarding the existence of abuse, shall be specific in its terms and shall describe in reasonable detail the act or acts to be prohibited." Id. § 93-21-15(3). "No mutual protection order shall be issued unless that order is supported by an independent petition by each party requesting relief ..., and the order contains specific findings of fact regarding the existence of abuse by each party as principal aggressor, and a finding that neither party acted in self-defense." Id. A final protection order shall be entered in the statewide "Mississippi Protection Order Registry" maintained by the Attorney General, and shall also be provided to the sheriff. Id. § 93-21-15(5). The court may modify or dissolve a protection order on a subsequent petition of either party after a hearing is held with notice to both parties and an opportunity to be heard. Miss. Code Ann. § 93-21-15(6).

FACTS AND PROCEDURAL HISTORY

¶6. On March 9, 2018, Shelby Waite filed a "Petition For Emergency Temporary Restraining Order Without Notice, and for Protection from Domestic Abuse Pursuant to [ Mississippi Code Annotated section] 93-21-15, And For Other Relief" in the Madison County Chancery Court. Waite alleged that she had been cohabiting with Justin Adkisson until February 8, 2018, when she and her minor child³ left Adkisson's house and "moved to a secret location ... out of fear for her life and personal safety." Waite stated that she had later moved to Illinois. Waite alleged that Adkisson had engaged in repeated acts of domestic violence against her and that she was in great fear of him. Waite sought an emergency domestic abuse protection order, without notice to Adkisson, pursuant to the PDAL. She also sought "monetary compensation" for various alleged damages and attorney's fees. The petition's introductory paragraph also cited Mississippi Rule of Civil Procedure 65.

¶7. On March 13, 2018, the chancellor granted a temporary restraining order (TRO) without notice to Adkisson. In granting the TRO, the chancellor relied on Rule 65 rather than the PDAL. The TRO prohibited Adkisson from coming within 1,500 feet of Waite or her child. The TRO set a hearing for March 27, 2018, and directed Waite to serve Adkisson with a copy of the order summoning him to the hearing. A separate order set the hearing for a maximum time of one hour. A docket entry indicated that a "special master" would preside at the hearing, although no order of reference was ever entered.

¶8. On March 16, 2018, Waite filed a "Petition for Domestic Abuse Protection Order" pursuant to the PDAL, using the standard form developed by the Attorney General. See Miss. Code Ann. § 93-21-11(9) (Rev. 2013). The petition's substantive allegations were similar to those in Waite's original petition. A Rule 81 summons was issued ordering Adkisson to appear at a hearing on the petition on March 27. The chancellor entered an order setting the petition for a hearing at the same time and place as the hearing on Waite's original petition, again for a maximum time of one hour. A docket entry again indicated that the special master would preside. Adkisson was personally served with the summons and petition on March 19.

¶9. The special master presided over a one-hour hearing that was held on March 27, 2018. On direct examination, Waite accused Adkisson of multiple serious allegations of physical abuse against her, and a printout of text messages exchanged between Waite and Adkisson in May 2017 was admitted into evidence. Waite testified that she was living in Illinois at the time of the hearing. On cross-examination, Adkisson's attorney questioned Waite about, inter alia, an incident in which she allegedly pointed a gun at Adkisson. Waite admitted that she had a gun during an argument with Adkisson, but she denied that she pointed the gun at Adkisson's head.

¶10. Adkisson did not testify but called Flora Police Chief Arty Girod as a witness. Girod testified that on February 7, 2018, Adkisson told him that "he was trying to end [his] relationship" with Waite and that it "wasn't going well." Adkisson asked Girod for advice on how to get Waite out of his house. Girod was concerned by what Adkisson told him, and he advised Adkisson to get a lawyer. A day or two later, Adkisson told Girod that Waite had threatened to destroy his home. Girod accompanied Adkisson to the home but found no damage. Later that day, Adkisson and Waite both came to the police station. They arrived separately, but Adkisson asked to talk to Waite privately, and Waite agreed. Girod let them talk in his office for more than an hour. Girod testified Waite was "extremely loud" and "volatile," while Adkisson was calm. Waite and Adkisson eventually left the station separately.

¶11. Waite called her mother, Janet Pennington, as a "rebuttal" witness. Pennington testified that in 2016, Adkisson called her husband (Waite's father) and said that he had "put his hands on [Waite] in anger" and "he was sorry." Pennington testified that she overheard Adkisson's admission because her husband had put him on speaker phone. Pennington testified...