Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

10/21/92 JOE W. SMITH v. NATALIE CASH MALOUF

October 21, 1992

JOE W. SMITH, JR., JOE W. SMITH, AND CLOVIS SMITH
v.
NATALIE CASH MALOUF, ALEX J. MALOUF, JR., AND PATRICIA MALOUF



The opinion of the court was delivered by: Banks, Justice, For The Court

TRIAL JUDGE: HON. EUGENE M. BOGEN

COURT FROM WHICH APPEALED: LEFLORE COUNTY CIRCUIT COURT

NATURE OF THE CASE: CIVIL - TORTS (OTHER THAN PERSONAL INJURY AND PROPERTY DAMAGE)

DISPOSITION REVERSED AND REMANDED - 9/24/98

EN BANC.

¶1. Here we are confronted with a challenge to the propriety of the lower court's dismissal of a suit, which alleged intentional infliction of emotional distress, conspiring to prevent the appellant-father from exercising his parental rights and conspiring to effect an illegal adoption of a child born out of wedlock. Because they have no standing, we affirm the dismissal of the appellant-grandparents' claim. The appellant-father, on the other hand, should have been afforded his day in court on his claims of intentional infliction of emotional distress and conspiracy to deprive him of his parental rights. Accordingly, we reverse and remand this matter to the trial court for further proceedings.

I.

¶2. In May 1989, teenagers Joey Smith and Natalie Malouf began dating, and in August 1991, Natalie discovered that she was pregnant. She told Joey about the pregnancy on August 16. The following day Joey asked Natalie to marry him, and they discussed their options regarding the baby although no decision was made at that time. Joey and Natalie told her parents (hereinafter "the Maloufs") about the pregnancy. The Maloufs told Joey the child would be put up for adoption and the pregnancy would be kept private until then.

¶3. The next day, August 18, Joey returned to the Maloufs' home in an attempt to change their minds about the adoption. Their minds were set. On August 19 Joey confided in his pastor about the pregnancy. Together, they told his parents (hereinafter "the Smiths") that Joey would soon be a father. After finding out about the baby, the Smiths went to the Maloufs and told them that they did not want the child to be placed for adoption and that they were willing to take full responsibility for the child. The Maloufs remained firm in their decision regarding the child's adoption.

¶4. The record is not clear, but it would appear that Natalie and Joey's romance went sour soon after she discovered she was pregnant. When he called her on September 7, Natalie asked him not to call again. At some point in that month, Joey consulted an attorney about the situation, but he did not take any formal action at that time. A few months later in December, the Smiths visited Natalie at school in Indiana. According to the Maloufs, the Smiths kidnapped and badgered Natalie regarding the child's adoption.

¶5. In January 1992, Joey went to the Maloufs' home and was told that Natalie was gone and that she would not be back until the child was born. On January 14, 1992, Joey initiated legal proceedings against Natalie in the Leflore County Chancery Court, seeking a declaration of paternity, order for custody of the child and injunctive relief to stop adoption proceedings within and outside Mississippi. Because Natalie could not be reached for service of process, she was served by publication on three separate dates - February 21 and 28 and March 6. On March 9, one of Natalie and Joey's mutual friends called Joey and asked him to drop the suit against Natalie, informing him Natalie said she would not put the child up for adoption if he dropped the suit.

¶6. Joey applied for a temporary restraining order enjoining the commencement of adoption proceedings on March 12. The TRO was served on Natalie via her father. On March 27, the chancellor issued a permanent injunction in the form of a final judgment, enjoining Natalie and "all who might assist her" from proceeding with an adoption. Joey and his parents mailed the chancellor's order to all Vital Statistics offices in the State of Mississippi. He also hired investigators to trace Natalie's whereabouts. On April 18, Natalie called Joey and told him the birth of their child was imminent and that she was healthy. She asked him to sign the adoption papers, and she also mentioned private adoption.

¶7. The baby was born on April 21, 1992 in Marietta, Georgia. After discovering her whereabouts, Joey went to Georgia and retained an attorney to assist in getting custody of the child. However, his attempts were too late. Natalie and her parents traveled to California where the baby was adopted to Canadian parents.

¶8. Joey and his parents sued Natalie and her parents in circuit court, alleging civil conspiracy and intentional infliction of emotional distress. In September 1992, Natalie and her parents filed motions to dismiss the complaint. The chancellor stayed all proceedings in chancery court and suspended all prior orders except the declaration of Joey's paternity. On October 2, 1992, Joey's California attorney learned that the child had been adopted by parents in Alberta, Canada. The Canadian adoption was put on hold pending the resolution of the Mississippi action. On October 22, the circuit court granted the 12(b)(6) motions to dismiss filed by the Maloufs and Natalie. Joey filed notice of appeal from that order on November 13, 1992.

¶9. Joey and the Smiths assign as error the following:

ISSUE I

THE COURT ERRED IN RULING THAT BECAUSE JOEY SMITH IS AN UNWED FATHER (RATHER THAN AN UNWED MOTHER), HE HAS NO PARENTAL RIGHTS TO RECEIVE NOTICE OF ANY ADOPTION OF, OR TO OBJECT TO ANY ADOPTION OF, OR TO SEEK LEGAL CUSTODY UPON THE BIRTH OF, HIS BIOLOGICAL CHILD.

ISSUE II

THE CIRCUIT COURT'S RULING THAT MR. AND MRS. JOE SMITH LACKED STANDING TO CLAIM DAMAGE, FLOWING EITHER FROM THE DEFENDANTS' UNLAWFUL CONSPIRACY OR FROM THE DEFENDANTS' INFLICTION OF EMOTIONAL DISTRESS UPON THEM, WAS ERRONEOUS.

ISSUE III

PLAINTIFFS ESTABLISHED ALL ELEMENTS OF THEIR CLAIMS FOR PURPOSES OF RULE

12.

ISSUE IV

THE CHANCERY ORDER ENTERED IN A SEPARATE JUDICIAL PROCEEDING, THAT DEFENDANTS SEEK TO INSERT INTO THE RECORD IN THE INSTANT CAUSE, IN NO WAY ADVERSELY AFFECTS PLAINTIFFS' CLAIMS FOR RULE 12 PURPOSES.

ISSUE V

THE DISTRICT COURT ERRED IN HOLDING THAT JOEY SMITH WAS LIMITED TO SEEKING REDRESS FOR THE TORTIOUS ACTIONS OF THE MALOUFS BY RESORT TO CONTEMPT PROCEEDINGS IN THE CHANCERY COURT.

ISSUE VI

THE DISTRICT COURT ERRED IN HOLDING THAT BECAUSE THE DEFENDANTS WERE EXERCISING UNSPECIFIED "RIGHTS TO TRAVEL FREELY THROUGHOUT THE UNITED STATES AND TO BE LEFT ALONE," THEY WERE SHIELDED FROM LIABILITY FOR DAMAGES CAUSED BY THEIR INTENTIONAL TORTS.

II.

a.

¶10. This Court, in adjudicating Rule 12(b)(6) motions, has held that upon a motion for dismissal pursuant to M.R.C.P. 12(b)(6) for failure to state a claim upon which relief can be granted, the pleaded allegations of the complaint must be taken as true, and a dismissal should not be granted unless it appears beyond a reasonable doubt that the plaintiff can prove no set of facts in support of his claim which entitles him to relief. Overstreet v. Merlos, 570 So. 2d 1196, 1197 (Miss. 1990).

¶11. "A motion to dismiss under MRCP 12(b)(6) tests the legal sufficiency of the complaint.... [T]o grant this motion there must appear to a certainty that the plaintiff is entitled to no relief under any set of facts that could be proved in support of the claim." Busching v. Griffin, 465 So. 2d 1037, 1039 (Miss. 1985). In Carpenter v. Haggard, 538 So. 2d 776, 777 (Miss. 1989), this Court further explained that "[u]nder the MRCP it is only necessary for the complaint to show that the plaintiff is entitled to some relief in court in order to survive a Rule 12(b)(6) motion." The dismissal of a complaint on a 12(b)(6) motion is reviewed de novo. Tucker v. Hinds County, 558 So. 2d 869, 872 (Miss. 1990); UHS-Qualicare, Inc. v. Gulf Coast Community Hosp., Inc., 525 So. 2d 746, 754 (Miss. 1987). b.

¶12. We first examine whether Joey had a right to notice of the adoption of his child or a right to object to that adoption under state or federal law. If under current law Joey was so entitled but was prevented from achieving such by and through the actions of Natalie and her parents, the Maloufs, then he is indeed entitled to a trial on his conspiracy and tort claims. With that issue in mind, we begin by looking at the pertinent Mississippi statutes and case law governing this issue.

¶13. Miss. Code Ann. § 93-17-5 (1994) provides in relevant part: In the case of a child born out of wedlock, the father shall not be deemed to be a parent for the purpose of this chapter, and no reference shall be made to the illegitimacy of such child [during the adoption process]. The effect of this provision is that the putative father of a child does not have to be notified of an adoption proceeding because he is not considered a parent under the statute and parents are the only parties statutorily required to be made parties to the adoption proceeding. Thus, § 93-17-5 expressly indicates that Joey was not entitled to notice of the adoption of his child nor was his consent to the adoption necessary. *fn1 Thus under the statutory law of this state, Joey has no right to complain about the adoption of the child. See Humphrey v. Pannell, 710 So. 2d 392, 395 (Miss. 1998).

¶14. Despite the conclusiveness of § 93-17-5, several United States Supreme Court decisions demonstrate the unconstitutionality of our statute. In fact, the constitutionally suspect nature of § 93-17-5 was recognized recently by this Court in Humphrey v. Pannell. There we stated that: Although Miss. Code Ann. § 93-17-5 and applicable decisions of this Court do not require notification of the natural unwed father of an illegitimate child, applicable United States Supreme Court decisions nevertheless make it clear that this Mississippi statute [§ 93-17-5] would be unconstitutional in its application in certain cases, particularly in cases in which the natural unwed father has attempted to establish a substantial relationship with the child. Id. at 396 (citing N. Shelton Hand, Mississippi Divorce, Alimony, and Child Custody, § 21-5 (3rd. ed. 1992)).

¶15. Beginning with Stanley v. Illinois, 405 U.S. 645, 651-63 (1972), the United States Supreme Court for the first time stated that under certain circumstances the Constitution protected the parental rights of an unwed father. These circumstances included instances in which the putative father had participated in the "companionship, care, custody, and management" of his child. Under those circumstances, his custodial rights to the child could not be revoked without a hearing to determine his parental fitness.

¶16. Since this seminal case, the Supreme Court has clarified and in many ways expanded the rights of unwed fathers. Six years after Stanley, the Supreme Court in Quilloin v. Walcott, 434 U.S. 246 (1978) rejected a putative father's quest to veto the adoption of his eleven- year-old child. The Court found that the father wholly failed to have or seek custody of the child nor had he ever shouldered any significant responsibility with respect to the daily supervision, education, protection and care of the child. Thus, that case established the requirement of a meaningful relationship with the child and not simply proof of biology.

¶17. Then there was Caban v. Mohammed, 441 U.S. 380 (1979) where the unwed father had custody of his children for several years. Under the applicable New York law, the putative father was merely entitled to notice of the proposed adoption of his children following the mother's death and an opportunity to present evidence on the children's best interest. A sharply divided Supreme Court struck down the New York statute on equal protection grounds, concluding that the undifferentiated distinction between unwed mothers and unwed fathers did not bear a substantial relationship to the State's asserted interests. The Court further found that the father and children had lived together for many years, thereby having established and maintained a significant, supportive relationship. The Court therefore concluded the father should have the ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.