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Pope v. Fountain

Court of Appeals of Mississippi

December 17, 2019

MICHELLE POPE APPELLANT
v.
DANIEL FOUNTAIN APPELLEE

          DATE OF JUDGMENT: 06/15/2017

          GEORGE COUNTY CHANCERY COURT HON. D. NEIL HARRIS SR. TRIAL JUDGE

          ATTORNEY FOR APPELLANT: MARK V. KNIGHTEN

          ATTORNEY FOR APPELLEE: CHRISTOPHER BRICE WIGGINS

          BEFORE BARNES, C.J., McCARTY AND C. WILSON, JJ.

          C. WILSON, J.

         ¶1. This is a paternity matter. Although there are only two parties to this action, the case really involves three adults: Daniel Fountain, Michelle Pope, and Brian Martin; and one minor child: J.M.

         ¶2. On June 15, 2017, the George County Chancery Court entered an order establishing Fountain as the biological father of J.M. The court also entered a temporary order granting Fountain visitation with J.M. and requiring Fountain to pay child support. Pope, J.M.'s mother, now appeals from the judgment establishing paternity and the temporary order. Pope contends that the chancery court erred in entering the paternity and temporary orders because Martin (Pope's ex-husband and the man who had been previously named as J.M.'s legal father) should have been added as a necessary party to this action under Mississippi Rule of Civil Procedure 19.

         ¶3. We agree with Pope that Martin should have been added as a party to this action. Therefore, we reverse the chancellor's judgment establishing paternity and remand for further proceedings once Martin has been properly joined. We further find that we lack jurisdiction to address the temporary order on appeal.

         BACKGROUND

         ¶4. Pope and Martin married on December 23, 1994. Around 2006, Martin had a vasectomy.[1] In 2007, Pope (while still legally married to, but separated from, Martin) engaged in a sexual relationship with Fountain. As a result of her relationship with Fountain, Pope became pregnant. And in October 2007, Pope gave birth to J.M.

         ¶5. According to sworn testimony, Martin has known since J.M.'s conception that he was not J.M.'s biological father.[2] In fact, upon review of the record, it appears that Martin, Pope, and Fountain each knew, from the time that J.M. was born, that Fountain was J.M.'s biological father. Nonetheless, Pope listed Martin as the father on J.M.'s birth certificate. It is unclear whether Martin and Fountain agreed to this before Pope listed Martin as J.M.'s father, but both Martin and Fountain were, at the least, aware soon after and did not dispute Pope's action.[3]

         ¶6. Notwithstanding Martin being named the father on J.M.'s birth certificate and providing financial support for J.M., Pope also allowed Fountain to have significant visitation with J.M. from the time that he was six months old.[4] Pope and Fountain agreed to this visitation; it was not court ordered. According to Pope, she worked a second job on the weekends, and it was helpful for Fountain to keep J.M. while she was working. Regardless, it is not disputed that Fountain has maintained a relationship with J.M. throughout his life, despite Martin being named J.M.'s legal father.

         ¶7. On October 3, 2012, when J.M. was five years old, Pope and Martin divorced. J.M. is listed as a child of Pope and Martin's marriage in the divorce decree entered by the George County Chancery Court. The decree, which is still operative, provides that Pope and Martin will enjoy joint legal custody of J.M., that Martin will pay child support and continue providing J.M. with medical and dental insurance, and that Martin will have visitation with J.M.[5]

         PROCEDURAL HISTORY

         ¶8. Approximately three and a half years after Pope and Martin's divorce, on March 21, 2016, Fountain filed an emergency motion for ex parte relief in the Harrison County Chancery Court, Second Judicial District. Fountain alleged that Pope had abused J.M. (by spanking him with a wooden paddle) and requested temporary sole legal and physical custody of J.M. Fountain named Pope as the sole defendant and did not include Martin as a party to the action. That same day, the court held an ex parte hearing. The court then entered an emergency ex parte order giving Fountain temporary sole physical custody of J.M. and prohibiting Pope from being within 1, 000 feet of J.M., until further ordered by the court.

         ¶9. Following the entry of the emergency ex parte order, Pope hired counsel. On March 24, 2016, Pope filed a motion to dismiss or to transfer for improper jurisdiction. A few weeks later, the Harrison County Chancery Court, Second Judicial District, granted the motion and transferred the case to the George County Chancery Court.

         ¶10. On April 11, 2016, Pope filed a separate petition to establish paternity in the George County Chancery Court. In her petition, Pope alleged that "she and [Fountain] engaged in a sexual relationship that resulted in the conception of their child, namely, [J.M.], born [in October 2007]." Pope named Fountain as the sole defendant to the petition and did not include Martin as a party to the action.

         ¶11. On April 29, 2016, the George County Chancery Court entered an order consolidating the two cases between Pope and Fountain. On the same date, Fountain filed a response and counter-petition to Pope's petition to establish paternity. In his response, Fountain admitted that he is the biological father of J.M. and that an order establishing paternity should be entered. In his counter-petition, Fountain requested immediate physical custody of J.M.; temporary child support; a full hearing on the merits to determine permanent custody, visitation, and support rights and obligations of the parties; and an appointment of a guardian ad litem (GAL) for J.M. ...


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