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Waite v. Adkisson

Court of Appeals of Mississippi

August 13, 2019

SHELBY WAITE APPELLANT
v.
JUSTIN ADKISSON APPELLEE

          DATE OF JUDGMENT: 03/27/2018

          COURT FROM WHICH APPEALED: MADISON COUNTY CHANCERY COURT TRIAL JUDGE: HON. CYNTHIA L. BREWER

          ATTORNEYS FOR APPELLANT: DEREK L. HALL MEGAN ELIZABETH TIMBS

          ATTORNEY FOR APPELLEE: CYNTHIA HEWES SPEETJENS

          BEFORE J. WILSON, P.J., WESTBROOKS AND McDONALD, JJ.

          WILSON, P.J.

         ¶1. Shelby Waite filed a petition for a domestic abuse protection order under the Protection from Domestic Abuse Law (PDAL), Miss. Code Ann. § 93-21-1 et seq. (Rev. 2013), in the Madison County Chancery Court. The chancery court did not make a finding that Waite was or was not entitled to relief under the PDAL. Instead, the court granted a "permanent restraining order" under Rule 65 of the Mississippi Rules of Civil Procedure. Waite argues that the chancery court should have granted a protection order under the PDAL, and she asks this Court to reverse and render a judgment to that effect.

         ¶2. We hold that the chancery court erred by granting a permanent restraining order without any finding that Waite was entitled to relief under the PDAL. In the absence of a finding of abuse under the PDAL, there was no basis for the court to grant permanent injunctive relief. However, we cannot render judgment in favor of Waite because the chancery court, as the finder of fact, must determine whether she is entitled to relief under the PDAL. Therefore, we reverse and remand for a new hearing consistent with this opinion and for the chancery court to grant or deny Waite's petition for a protection order under the PDAL.

         THE PROTECTION FROM DOMESTIC ABUSE LAW

         ¶3. Under the PDAL, "[a]ny person may seek a domestic abuse protection order for himself by filing a petition alleging abuse by the respondent." Miss. Code Ann. § 93-21-7(1) (Rev. 2013). In addition, any parent may seek a domestic abuse protection order on behalf of a minor child. Id. A petition may be filed in a municipal, justice, county, or chancery court in the municipality or county where the abuse occurred or where the petitioner resides. Miss. Code Ann. § 93-21-5(1)-(2) (Rev. 2013). The petition should allege, inter alia, "[t]he facts and circumstances concerning the alleged abuse." Miss. Code Ann. § 93-21-9(1)(b) (Rev. 2013). The PDAL defines "Abuse" to include

the occurrence of one or more of the following acts between spouses, former spouses, persons living as spouses or who formerly lived as spouses, persons having a child or children in common, other individuals related by consanguinity or affinity who reside together or who formerly resided together or between individuals who have a current or former dating relationship:
(i) Attempting to cause or intentionally, knowingly or recklessly causing bodily injury or serious bodily injury with or without a deadly weapon;
(ii) Placing, by physical menace or threat, another in fear of imminent serious bodily injury;
(iii) Criminal sexual conduct committed against a minor within the meaning of Section 97-5-23;
(iv) Stalking within the meaning of Section 97-3-107;
(v) Cyberstalking within the meaning of Section ...

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