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HENRY H. COOK III v. STATE OF MISSISSIPPI

FEBRUARY 12, 1986

HENRY H. COOK III
v.
STATE OF MISSISSIPPI



BEFORE WALKER, P.J.; HAWKINS AND ROBERTSON, JJ.

ROBERTSON, JUSTICE, FOR THE COURT:

This appeal arises from a charge of indirect or constructive criminal contempt leveled against a Gulf Coast lawyer. In the court below the accused was found to have counseled his client to violate a child custody decree by pretermitting some of her ex-husband's visitation rights. For reasons explained below, we reverse and render.

An important feature of the proceedings below involved the chancellor's occupying dual and conflicting roles of prosecutor and judge. For reasons explained below, we regard that the chancellor's prosecutorial actions, no doubt undertaken in complete good faith, were such that he became disqualified to adjudge the accused's guilt or innocence.

 II.

 A.

 Annelle Walker and Robert D. Walker were divorced in November of 1977. The only child born of the marriage was Wendy Lynn Walker, a female, then age six but by now fifteen years old. Permanent custody of this child was vested in Annelle. After modification in 1978, Robert was granted visitation rights which included two 48 hour weekend custody periods each month. The parties appear to have operated under this custody arrangement without inordinate difficulty for some four or five years.

 In September of 1982, Annelle became aware of certain information through her then eleven year old daughter's psychologist, which, in Annelle's judgment, justified a change of custody to eliminate any overnight or weekend visitation with Robert. To effect this goal Annelle sought the services of Henry J. Cook III, an attorney maintaining his office in Bay St. Louis, Mississippi. Cook was the Defendant below and is the Appellant here. Cook prepared and, on behalf of Annelle, filed in the Chancery Court of Hancock County, Mississippi, a motion to modify the prior custody decree. He sought to have an early hearing set in the matter, but the earliest hearing date available was October 26, 1982.

 On September 29, 1982, Annelle acquired new information, which in her view created an emergency situation. *fn1 She called Cook and advised that she was not going to permit the next overnight visitation, which was scheduled to begin on October 1, 1982. She inquired of Cook concerning the possible consequences of such action. Cook, of course, advised her that she ran the risk of being held in contempt of court. He further urged that she inform Robert of her decision as quickly as possible and attempt to negotiate some alternative

 form of visitation.

 On that first weekend in October, Robert's scheduled visitation was denied without apparent incident. Because another scheduled weekend visitation remained prior to the October 26 hearing date, Cook filed on October 4, 1982, an application for a preliminary injunction, see Rule 65 (a), Miss.R.Civ.P., to halt that visitation. He was advised by the court administrator, however, that this application likewise could not be heard until October 26, 1982, the same date as the scheduled hearing on the merits.

 Thereafter, at the request of counsel for Robert D. Walker, the merits hearing was continued first until November 3, 1982, then until December 1, 1982, and finally until February 24, 1983. During this time Mr. Cook remained in communication with defense counsel.

 By the end of November of 1982, Annelle had denied Robert four weekend visitations. Concerned at the continued postponement of the hearing on her motion to modify, she consulted with Cook and, with his advice and counsel, wrote the following letter, which is the centerpiece of this contempt proceeding:

 Annelle Walker 107 Hickory Lane Bay St. Louis, MS ...


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