Waller v. Waller, No. 1998-CA-01067-SCT.

CourtUnited States State Supreme Court of Mississippi
Writing for the CourtBEFORE PITTMAN, P.J., McRAE AND SMITH, JJ.
Citation754 So.2d 1181
Docket NumberNo. 1998-CA-01067-SCT.
Decision Date13 January 2000
PartiesPenny Carol Foust WALLER v. Kenneth Neal WALLER.

754 So.2d 1181

Penny Carol Foust WALLER
v.
Kenneth Neal WALLER

No. 1998-CA-01067-SCT.

Supreme Court of Mississippi.

January 13, 2000.


Omar D. Craig, Oxford, Attorney for Appellant.

Claude Melvin Davis, Oxford, Attorney for Appellee.

BEFORE PITTMAN, P.J., McRAE AND SMITH, JJ.

McRAE, Justice, for the Court:

¶ 1. When a contested divorce is dismissed for failure of proof, the parties, while still married, may nonetheless dispute custody. In this case, the chancellor denied the divorce and held that both parties

754 So.2d 1182
had full access and custody to all three children. The wife, a week later, filed a second suit for custody. The chancellor in the second case ruled that he was bound by what the first chancellor had done but modified custody nonetheless. While not approving of the procedural route this case has taken, we vacate and remand because there has never been a hearing to decide in whose custody lie the best interests of the children

¶ 2. Penny Carol Faust Waller and Kenneth Neal Waller were married August 31, 1979. They have three children: Jonathan Neal Waller born August 5, 1982; Anthony Peter Waller born March 3, 1998; and Kimberly Michelle Waller born March 19, 1993.

¶ 3. On October 2, 1996, Penny Waller filed a Complaint for Divorce and Motion for Temporary Relief (hereinafter "first complaint" or cause no. 96-448). She moved out of the home on October 20, 1996, taking with her the three children.

¶ 4. Trial was held July 21-22, 1997. Chancellor Don Grist dismissed the complaint as being without merit. The order recited that "each parent has full access and custody of all the children born to the union of this marriage and neither parent has any rights that are superior to the other parent as far as any and all matters pertaining to all the children born of this marriage."

¶ 5. On July 31, 1997, Penny filed a Complaint for Custody, Support and Other Relief. ("second complaint" or cause no. 97-288). Kenneth's answer included the affirmative defense of res judicata.

¶ 6. Meanwhile that summer, the younger children were visiting their father pursuant to the temporary visitation schedule worked out between the parties. At the end of the two-week visitation period, Kenneth refused to return the two children to their mother. This de facto custody arrangement was later reflected in a temporary order on August, 28, 1997. In that order, Chancellor Anthony Farese ruled that the two youngest children would remain in the primary custody of their father and the eldest with their mother until further order of the court. Judge Farese signed another order dated December 12, 1997, clarifying the visitation schedule.

¶ 7. The case was finally heard by Special Chancellor C. Michael Malski who held that he could not undo what the first chancellor (Grist) had done. Chancellor Malski nonetheless adopted the visitation schedule put into place by Judge Farese which had the effect of undoing the first chancellor's order. The Court dismissed Penny's complaint in an order entered June 8, 1998. It is from this order that Penny has taken the instant appeal arguing that the lower court erred when it dismissed the complaint without a hearing on the merits. Specifically, she raises the following issues:

1. Did the Chancery Court of Lafayette County, Mississippi [commit] error in dismissing the complaint for child custody, child support and other relief by its order of the 8th day of June, 1998, without a hearing on the merits?
2. What was and is in the best interest of the children?
3. Was it in the best interest and to the welfare of the minor children that their custody be split with one minor child being in the care, custody, and control of the appellant and two minor children being in the care custody and control of the Appellee
4. Even though the Special Chancellor did not use the phrase "res judicata" and even though the order of December 12, 1997, specifically held that the Complaint for Child Custody, Child Support and Other Relief was not res judicata to cause no 96-448. Nevertheless the special chancellor dismissed the Complaint for Child Custody, Child Support and other relief without a hearing and without stated grounds for dismissal in other words holding res judicata
5. The Chancellor in cause no 96-448 should have after denying the divorce made a determination of custody.

754 So.2d 1183
¶ 8. Penny argues that while the phrase res judicata does not appear in Chancellor Malski's ruling, it would appear that res judicata was the basis for the Chancellor's dismissal of Penny's second complaint. Penny claims that Chancellor Malski's dismissal of the second complaint "left the children in the custody of those parties that had custody and did not...

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8 practice notes
  • Vandenbrook v. Vandenbrook, NO. 2017-CA-00847-COA
    • United States
    • Mississippi Court of Appeals
    • March 26, 2019
    ...the complaint for divorce may still provide for the custody of the children if [the court] deems it necessary." Waller v. Waller , 754 So.2d 1181, 1183 (¶ 12) (Miss. 2000).4 As stated, the chancellor ruled that the parties would share joint legal custody of the minor children with Emma havi......
  • Cuccia v. Cuccia, No. 2010–CT–00083–SCT.
    • United States
    • United States State Supreme Court of Mississippi
    • June 28, 2012
    ...91 So.3d at 37–38. 28.Crider v. Crider, 904 So.2d 142, 143 (Miss.2005). 29.Id. at 147. 30.Crider, 904 So.2d at 147. 31.Waller v. Waller, 754 So.2d 1181, 1184 (Miss.2000). 32.See Rutledge v. Rutledge, 487 So.2d 218, 220 (Miss.1986). 33.Hubbard v. Hubbard, 656 So.2d 124, 130 (Miss.1995). 34.I......
  • Johnson v. State, No. 96-CT-01136-SCT.
    • United States
    • United States State Supreme Court of Mississippi
    • January 13, 2000
    ...This Court is fully capable of balancing the Batson factors in many of the cases before us, including this one, and continued remand 754 So.2d 1181 of such cases only wastes limited trial court resources and further delays ¶ 11. Therefore, I respectfully dissent. SMITH, WALLER AND COBB, JJ.......
  • Schmidt v. Schmidt, 2020-CA-01253-COA
    • United States
    • Court of Appeals of Mississippi
    • May 10, 2022
    ...23 So.3d 438, 447 (¶23) (Miss. 2009). ¶35. Joint custody fits parents who are willing to make joint custody feasible. Waller v. Waller, 754 So.2d 1181, 1184 (¶13) (Miss. 2000). "According to Vitauts M. Gulbis, Annot., Propriety of Awarding Joint Custody of Children, 17 A.L.R. 4th 1013, 1016......
  • Request a trial to view additional results
8 cases
  • Vandenbrook v. Vandenbrook, NO. 2017-CA-00847-COA
    • United States
    • Mississippi Court of Appeals
    • March 26, 2019
    ...the complaint for divorce may still provide for the custody of the children if [the court] deems it necessary." Waller v. Waller , 754 So.2d 1181, 1183 (¶ 12) (Miss. 2000).4 As stated, the chancellor ruled that the parties would share joint legal custody of the minor children with Emma havi......
  • Cuccia v. Cuccia, No. 2010–CT–00083–SCT.
    • United States
    • United States State Supreme Court of Mississippi
    • June 28, 2012
    ...91 So.3d at 37–38. 28.Crider v. Crider, 904 So.2d 142, 143 (Miss.2005). 29.Id. at 147. 30.Crider, 904 So.2d at 147. 31.Waller v. Waller, 754 So.2d 1181, 1184 (Miss.2000). 32.See Rutledge v. Rutledge, 487 So.2d 218, 220 (Miss.1986). 33.Hubbard v. Hubbard, 656 So.2d 124, 130 (Miss.1995). 34.I......
  • Johnson v. State, No. 96-CT-01136-SCT.
    • United States
    • United States State Supreme Court of Mississippi
    • January 13, 2000
    ...This Court is fully capable of balancing the Batson factors in many of the cases before us, including this one, and continued remand 754 So.2d 1181 of such cases only wastes limited trial court resources and further delays ¶ 11. Therefore, I respectfully dissent. SMITH, WALLER AND COBB, JJ.......
  • Schmidt v. Schmidt, 2020-CA-01253-COA
    • United States
    • Court of Appeals of Mississippi
    • May 10, 2022
    ...23 So.3d 438, 447 (¶23) (Miss. 2009). ¶35. Joint custody fits parents who are willing to make joint custody feasible. Waller v. Waller, 754 So.2d 1181, 1184 (¶13) (Miss. 2000). "According to Vitauts M. Gulbis, Annot., Propriety of Awarding Joint Custody of Children, 17 A.L.R. 4th 1013, 1016......
  • Request a trial to view additional results

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