OF JUDGMENT: 06/15/2017
COUNTY CHANCERY COURT HON. D. NEIL HARRIS SR. TRIAL JUDGE
ATTORNEY FOR APPELLANT: MARK V. KNIGHTEN
ATTORNEY FOR APPELLEE: CHRISTOPHER BRICE WIGGINS
BARNES, C.J., McCARTY AND C. WILSON, JJ.
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.
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.
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.
Pope and Martin married on December 23, 1994. Around 2006,
Martin had a vasectomy. 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.
According to sworn testimony, Martin has known since
J.M.'s conception that he was not J.M.'s biological
father. 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
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
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.
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.
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
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.
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.
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. ...