Who’s the Father?

February 19, 2020 § Leave a comment

Michelle Pope and Brian Martin married in 1994. In 2006, Martin had a vasectomy. In 2007, while separated from Martin, Pope became pregnant by Daniel Fountain. All of them knew that Fountain was the biological father, but Martin was listed as father of the child, J.M., on the birth certificate.

Pope and Martin resumed living together, and both worked to support the child. Fountain was allowed to visit with and babysit the child.

In 2012, when the child was 5 years old, Pope and Martin were divorced. The divorce decree named Martin as father, granted custody of J.M. to Pope, granted visitation to Martin, and ordered him to pay child support and provide insurance covering the child.

In 2016, Fountain filed an emergency proceeding seeking temporary custody of J.M., claiming abuse by Pope. The court granted Fountain his temporary relief, which necessitated a full custody trial, but Fountain had filed in a different district from that where the divorce was granted, and so the case had to be transferred to the divorce court and it was.

In the course of proceedings, the chancellor noted several times that Martin (remember him?) had been adjudicated the father, making him a necessary party. But he was never joined, even though he did testify at trial.

Following the hearing, the chancellor adjudicated Fountain to be the father of J.M. and entered a “temporary order” granting Fountain visitation. Michelle appealed, arguing that Martin should have been joined as a party.

In Pope v. Martin, rendered December 17, 2019, the COA reversed and remanded in a unanimous ruling. Judge Corey Wilson wrote the opinion:

I. Rule 19(a)(1)

¶21. As noted supra, for the entirety of J.M.’s life (arguably until now), Martin has been considered J.M.’s legal father. And pursuant to a George County divorce decree, Martin has joint legal custody of J.M., visitation rights, and child support responsibilities. Given these rights and responsibilities, it is apparent that “in [Martin’s] absence complete relief cannot be accorded among [Pope and Fountain]” in this action. M.R.C.P. 19(a)(1).

¶22. Pope has asked the court to “award [her] the sole paramount care, custody and control of [J.M.], as well as [establish] permanent child support payments to be made to [her] . . . .” And in his counter-petition, Fountain has requested a full hearing on the merits to determine
permanent custody, visitation, and support rights and obligations of the parties. If Martin is the plaintiff will have an adequate remedy if the action is dismissed for nonjoinder. not added as a party to this action, the chancery court risks conflicting orders regarding J.M. and his custody, his child support, and his accessibility for visitation.

II. Rule 19(a)(2)

¶23. Along this same vein, Martin “claims an interest relating to the subject of th[is] action,” namely, J.M.12 And the complete “disposition of th[is] action in his absence may (i) as a practical matter impair or impede his ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of his claimed interest.” M.R.C.P. 19(a)(2). Pope notes that disposition of this action has the potential to diminish Martin’s “custodial and visitation rights” as well as dilute Martin’s “rights of inheritance.” We agree, though we do not know why Pope—who as plaintiff sought the very relief the chancery court granted—did not include Martin as a party at the outset or after any of the multiple times the chancery court instructed the parties to join him. Moreover, complete disposition may leave Pope at risk of being subject to inconsistent or contradictory obligations in regard to J.M.’s visitation with Martin and Fountain. For these reasons, we find that Martin is a “necessary party” to this action. See Mahaffey [v. Alexander], 800 So. 3d [1284]at 1285 (¶5).

¶24. “In discussing the joinder of parties under Rule 19, our supreme court has stated that the ‘failure to join interested parties . . . under M.R.C.P. 19(a) justifies reversal and remand as a violation of fundamental due process.’” Am. Pub. Fin. Inc. v. Smith, 45 So. 3d 307, 311 (¶9) (Miss. Ct. App. 2010) (quoting Bd. of Educ. of Calhoun Cty. v. Warner, 853 So. 2d 1159, 1170 (¶38) (Miss. 2003)). This is true even if, “on remand, the same result might be reached.” Powell v. Evans, 113 So. 3d 1270, 1275 (¶23) (Miss. Ct. App. 2013); see also Davis v. Guar. Bank & Trust Co., 58 So. 3d 1233, 1238 (¶26) (Miss. Ct. App. 2011). Accordingly, we reverse the chancellor’s judgment establishing paternity and remand for further proceedings once Martin has been properly joined.

[Fn 12] Martin testified at the May 22 hearing that he considered J.M. to be his child and that he has no intention to voluntarily disestablish paternity.

The opinion states at ¶2 that “Pope … now appeals from the judgment establishing paternity and the temporary order.” At ¶17, the court held that it had no jurisdiction to consider the temporary order, citing McDonald I and II. A temporary order is not a final, appealable judgment per MRCP 54. “We find nothing to review about this explicitly temporary order entered three years ago. Michael v. Michael, 650 So.2d 469, 471 (Miss.1995) (appellate review of temporary orders is improper.)” McDonald v. McDonald, 850 So.2d 1182, 1193 (Miss. Ct. App. 2002).” McDonald v. McDonald, 876 So. 2d 296, 298 (Miss. 2004) [My emphasis].

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