OF JUDGMENT: 10/20/2015
COUNTY CHANCERY COURT, HON. EDWARD E. PATTEN, JR. TRIAL JUDGE
COURT ATTORNEYS: RENEE H. BERRY, JOE ROBERT NORTON, IV WAYNE
DOWDY DANIEL SHAY MCGREGOR ROBERT EMMETT FAGAN, JR. WILLIAM
D. BOERNER BRAD RUSSELL BOERNER
ATTORNEYS FOR APPELLANT: WAYNE DOWDY, DUNBAR DOWDY WATT
ATTORNEYS FOR APPELLEE: WILLIAM D. BOERNER TABITHA MOORE (PRO
This appeal arises from a January 2016 order by the Lincoln
County Chancery Court adjudicating Kevin Earl Moore, a minor,
the heir of Travis Lynn Weems, who died in an automobile
accident in July 2014. Dauwanna Mitchell, Weems's mother,
appeals from that judgment, claiming it is invalid because
Weems was never adjudicated to be Moore's natural father
due to a paternity action filed in 2007 that was dismissed
and, as Mitchell claims, never reinstated. Mitchell also
claims a final judgment entered in February 2011 terminating
Weems's parental rights was improperly revised by the
chancery court in October 2015 under Rule 60 of the
Mississippi Rules of Civil Procedure.
Consolidated with this appeal (2015-CA-01651) is another
appeal by Mitchell (2016- CA-00177) concerning the chancery
court's 2014 judgment granting letters of administration
based on an administrative-letters petition filed by Tilmon
Bishop, Chancery Clerk of Lincoln County. Summons thereafter
were issued to unknown heirs at law and wrongful-death
beneficiaries of Weems.
Both appeals submit the same claims of error, that the
chancery court's order adjudicating heirship is invalid
because paternity never was adjudicated, and the chancery
court erred in revising the February 2011 termination
Finding no merit in Mitchell's assignments of error, we
affirm the chancery court's judgment adjudicating Kevin
Moore the heir of Travis Weems.
AND PROCEDURAL HISTORY
Paternity Adjudication and Child-Support Action
Against Travis Weems
On August 7, 2007, the Mississippi Department of Human
Services ("DHS") filed a complaint in the Lincoln
County Chancery Court against Travis Weems. The complaint
sought to determine paternity of a minor child named Kevin
Earl Weems, born out of wedlock to Tabitha Moore. The
chancery court dismissed the complaint without prejudice on
October 14, 2008, due to nonservice of process.
DHS filed a new complaint on November 6, 2008, again alleging
that Travis was Kevin's father. This complaint was filed
under the same cause number as the previously dismissed
complaint. Travis was served with process on December 7,
2008, and he appeared before the court and signed an agreed
order for genetic paternity testing to be performed on in
February 2009 to determine paternity. But Travis never
submitted to any paternity test.
On May 19, 2009, the chancery court entered a judgment for
support and other relief, stating:
[Travis] is the parent of [Kevin] and is therefore under a
legal duty to provide for [his] support . . . . The
defendant[, Travis] refused to submit to genetic testing in
this action. Paternity was previously established pursuant to
voluntary acknowledgment of [Kevin].
Termination of Parental Rights Action Against Travis
On September 3, 2010, Tabitha Moore filed a petition in the
chancery court seeking termination of Travis's parental
rights. Travis was served with process and appeared before
the court on February 10, 2011, at which time a final hearing
was held in the termination matter. The court entered its
final judgment on February 25, 2011, terminating Travis's
parental rights to Kevin, stating:
that the parental rights of Travis Lynn Weems of and to Kevin
Earl Weems are hereby terminated, including the rights of
inheritance of and from the child [.]"
On May 29, 2015, Tillmon Bishop (Kevin's state-appointed
guardian) filed a motion to revise the chancery court's
February 2011 final judgment pursuant to Rule 60(b)(4) and/or
(6) of the Mississippi Rules of Civil Procedure. The motion
claimed that no relief affecting Kevin's inheritance
rights was prayed for, and there was no mention of such
rights during the February 2011 termination proceedings. The
motion submitted that the February 2011 judgment should be
rendered "void as to the child's rights of
inheritance as equity demands those rights to remain intact
for the benefit of this child unless specifically and
intentionally eliminated by the [c]ourt." The motion
further submitted that the "finality of the language
erroneously included in the Final Judgment is greatly
outweighed by the inequality manifested upon the minor child
by the [c]ourt, unintentionally terminating the rights of
inheritance of the minor child from his natural father."
On July 15, 2015, Mitchell filed a response in opposition to
the motion filed by Bishop.
The chancery court held a hearing on the matter on August 27,
2015. On October 22, 2015, the chancery court entered an
order revising the February 2011 final judgment, finding that
the language was included based on a clerical mistake,
arising from an oversight in the chancery court's
original decision. Therefore, it should be struck from the
February 2011 final judgment. The chancery court described
the change as follows:
The change is not made to reflect any change in mind by this
Judge, based upon the fact that no relief affecting rights of
inheritance was prayed for by the Petitioner or Guardian
Ad Litem, or included in the Bench Ruling made at the
conclusion of the trial. This correction is made solely to
correct an Order that failed to accurately reflect this
Judge's original decision as manifested by the Transcript
of the Bench Ruling, and pursuant to Rule 60(a) of the
Mississippi Rules of Civil Procedure.
Administration Action in the Matter of the Estate of
Travis Weems died on July 12, 2014, from injuries he
sustained when he was a guest passenger in an automobile
during an accident. The Lincoln County Chancery Clerk filed a
petition for Letters of Administration on November 3, 2014.
On November 4, 2014, the chancery court entered a judgment
granting the petition, and said letters were issued on
November 17, 2014. Summons were then issued to Unknown Heirs
at Law and Wrongful Death Beneficiaries of Travis in the time
and manner required by law.
On January 5, 2016, an heirship proceeding was held in the
chancery court. Tabitha Moore was the only person who
appeared before the court, and she provided sworn testimony
supporting Kevin's heirship to Travis.
The chancery court thereafter adjudicated Kevin to be the
heir of Travis. The court based its determination on the May
2009 paternity judgment, in which the court found Travis to
be Kevin's natural father.
Mitchell appeals, claiming the January 2016 order is invalid
because Travis was never adjudicated Kevin's natural
father because the 2007 paternity action was dismissed and
never reinstated. Mitchell also claims the chancery court
improperly revised, under Rule 60, the court's February
2011 judgment, which had terminated Travis's parental
rights and Kevin's right to inherit from Travis.
This court will not disturb a chancery court's decision
unless the chancery court's findings are manifestly
wrong; not supported by substantial, credible evidence; or
the chancery court has applied an erroneous legal standard.
Norton v. Norton, 742 So.2d 126, 128-29 (Miss.
1999). Questions of law are reviewed de novo. Smith v.
Dorsey, 599 So.2d 529, 533 (Miss. 1992).
Whether the 2009 paternity action, adjudicating
Travis to be Kevin's father, is valid.
Mitchell contends that, because the first paternity complaint
was dismissed, the second complaint was void for lack of
jurisdiction. Mitchell's argument is predicated on the
belief the two complaints are actually the same single
action, as evinced by the fact the same cause number was used
for each action.
The chancery court found no merit in this claim, explaining
that it constituted nothing but "form over
substance" and noting that Mitchell's counsel even
agreed that if these two actions had used separate cause
numbers, there would be "zero merit" to this
We agree. The fact the same cause number was used in both the
first and second complaints is of no matter in this case. The
record clearly shows that the first paternity complaint was
dismissed without prejudice due to insufficient service of
process, and a new complaint thereafter properly was
instituted by DHS. The dismissal of the first action without
prejudice was not a jurisdictional bar to the second action.
Secondly, as to the chancery court's finding(s) and
ruling(s) in the second paternity action, Mississippi Code
Section 93-9-21(1)(b) instructs:
If the putative father does not submit to genetic testing,
the court shall, without further notice, on the date and time
previously set through the notice for hearing, review the
documentation of the refusal to submit to genetic testing and
make a determination as to whether the complaint to establish
paternity should be granted. The refusal to submit to such
testing shall create a rebuttable presumption of an admission
to paternity by the putative father.
Miss. Code Ann. § 93-9-21(1)(b) (Rev. 2011).
The record illustrates that Travis agreed to undergo genetic
testing to determine paternity, but he ultimately did not
submit to testing. Later, during the proceedings pertaining
to the termination of Travis's parental rights, Travis
told the chancery court the reason he did not submit to
testing was because he could not afford it, and he never
actually believed he was not Kevin's father. Travis
stated to the record: "I thought it would be best just
to make sure he was mine, just to be straight up and
The chancery court also found that Weems voluntarily had
acknowledged his paternity, as evidenced by his having signed
Kevin's birth certificate.
These factors, according to the chancery court, constituted a
presumption of admission by Travis that he was Kevin's
father. This presumption was never rebutted by Travis and was
actually reaffirmed by Travis at the February 2011
parental-rights termination proceeding.
For these reasons, we find the chancery court did not err in
adjudicating Travis to be the natural father of Kevin. This
issue is without merit.
Whether the Order Terminating Parental Rights was
The chancery court found the language "including the
rights of inheritance of and from the child" contained
in the February 2011 judgment terminating Travis's
parental rights constituted a clerical mistake. The court
ordered the language struck from the judgment pursuant to
Mitchell argues this was error because the purpose of Rule
60(a) is to correct insubstantial clerical errors. She
contends that relief from more substantial errors requires
use of Rule 60(b). Specifically, Mitchell points to Rule
60(b)(2), which affords relief based on an accident or
mistake, but requires such relief be sought within six months
after entry of the judgment. M.R.C.P. 60(b)(2). Mitchell also
points to Stringfellow v. Stringfellow, where this
Court, in speaking to Rule 60(b)(2), said "neither
ignorance nor carelessness on the part of an attorney will
provide grounds for relief." Stringfellow v.
Stringfellow, 451 So.2d 219, 221 (Miss. 1984) (citing
Hoffman v. Celebrezze, 405 F.2d 833 (8th Cir.
Motions for relief under Rule 60 in general are addressed to
the sound discretion of the trial court, and appellate review
is limited to whether that discretion has been abused.
R.K. v. J.K., 946 So.2d 764, 776 (Miss. 2007).
Rule 60(a) allows the court to correct "clerical
mistakes" arising from oversight or omission for the
goal of "mak[ing] the judgment or other document speak
the truth." M.R.C.P. 60(a) cmt. Rule 60(a) reads:
Clerical Mistakes. Clerical mistakes in
judgments, orders, or other parts of the record and errors
therein arising from oversight or omission may be corrected
by the court at any time on its own initiative or on the
motion of any party and after such notice, if any, as the
court orders up until the time the record is transmitted by
the clerk of the trial court to the appellate court and the
action remains ...