E-Filed Document Apr :32: TS Pages: 10 IN THE SUPREME COURT OF MISSISSIPPI REGINA DIANE WEATHERS

Transcription

1 E-Filed Document Apr :32: TS Pages: 10 IN THE SUPREME COURT OF MISSISSIPPI REGINA DIANE WEATHERS APPELLANT V. NO TS SCOTTY WADE GUIN APPELLEE BRIEF OF APPELLANT REGINA DIANE WEATHERS ON APPEAL FROM THE CHANCERY COURT OF ITAWAMBA COUNTY, MISSISSIPPI M. LEE DULANEY 347 North Spring Street Post Office Box 7357 Tupelo, Ms Telephone: (662) Facsimile: (662) MISS. BAR NO Attorney for Appellant, Regina Weathers ORAL ARGUMENT IS NOT REQUESTED

2 IN THE SUPREME COURT OF MISSISSIPPI REGINA DIANE WEATHERS APPELLANT V. NO TS SCOTTY WADE GUIN APPELLEE CERTIFICATE OF INTERESTED PERSONS The undersigned counsel of record certifies that the following listed persons have an interest in the outcome of this case. These representations are made in order that the Court may evaluate possible disqualification or recusal. 1. Honorable John A. Hatcher Itawamba County Chancellor 2. James R. Franks, Jr., Esq. P.O. Box 681 Tupelo, MS M. Lee Dulaney 347 North Spring Street Post Office Box 7357 Tupelo, MS Regina Diane Weathers, Appellant 5. Scotty Wade Guin, Appellee - i- /s/ M. Lee Dulaney M. LEE DULANEY, MSB #99570

3 STATEMENT REGARDING ORAL ARGUMENT Oral argument would not be helpful in this case, as it would not aid in offering additional facts, law or argument in support of these issues. The issues before the Court are straightforward issues of law applied to the facts of this case. As such, oral argument would not be of benefit and is not requested. - ii-

4 TABLE OF CONTENTS CERTIFICATE OF INTERESTED PERSONS i STATEMENT REGARDING ORAL ARGUMENT.. ii TABLE OF CONTENTS.iii TABLE OF AUTHORITIES...iv STATEMENT OF THE ISSUES..v STATEMENT OF THE CASE...vi SUMMARY OF THE ARGUMENT.vi ARGUMENT AND AUTHORITY..vii CONCLUSION. viii CERTIFICATE OF SERVICE ix - iii-

5 TABLE OF AUTHORITIES CASES Brocato v. Brocato, 731 So.2d 1138 (Miss. 1999).vii Holloman v. Holloman, 691 So.2d 897 (Miss. 1996)..vi Jones v. Jones, 878 So.2d 1061 (Miss.Ct.App. 2004) vii Klein v. McIntyre, 966 So.2d 1252 (Miss.Ct. App. 2007) vii,viii Samples v. Davis, 904 So.2d 1061 (Miss. 2004) vii,viii - iv-

6 STATEMENT OF THE ISSUES 1. Whether the trial court s order of July 8, 2013, should be set aside. 2. Whether the trial court s finding of contempt relating to the July 8, 2013, was in error. - - v

7 STATEMENT OF THE CASE On June 4, 2013, Appellee filed a Complaint for Modification and For Citation of Contempt against the Appellee. R. 5. Appellant s answer was filed June 20, R. 11. On July 1, 2013, the lower court signed an order (filed July 8, 2013) changing custody of a minor child. R. 14. This was done without agreement or stipulation by Appellant, and without any hearing on the merits and/or proof presented to the lower court. On August 7th, after a Motion to Set Aside (R. 21.) the previous order was denied in open court, Appellant filed the instant Appeal. R. 24. On August 22, 2013, the lower court held Appellant in contempt of the order of July 8, 2013, with regard to child support and making disparaging remarks. R. 26. FACTS There are no facts to discuss. There was no hearing, no stipulations on the record or recitation in open court and, thus, no record of the proceeding wherein the lower court changed custody of the minor child at issue. SUMMARY OF THE ARGUMENT The lower court could not change custody of the minor child without agreement of the parties, a stipulation regarding same, or facts not in dispute, and/or a hearing on the merits as to whether the Appellee had met the standard of proof for modification of same. STANDARD OF REVIEW In custody cases, an appellate court must affirm findings of fact by chancellors in domestic cases when they are supported by substantial evidence. Holloman v. Holloman, 691 So. - vi-

8 2d 897, 898 (Miss. 1996). The appellate court must reverse the chancellor's decision only if it is manifestly wrong or clearly erroneous, or if the chancellor applied an erroneous legal standard. Brocato v. Brocato, 731 So.2d 1138, 1140 (Miss. 1999). ARGUMENT 1. Whether the trial court s order of July 8, 2013, should be set aside. The party who petitions for a modification of a child custody order bears the burden of proof by a preponderance of the evidence. Jones v. Jones, 878 So.2d 1061, 1065 (Miss.Ct.App. 2004). In order to satisfy this burden of proof, the proponent must offer evidence which is more convincing than the evidence offered against it. Id. In the instant case, there was no proof presented and, thus, no basis upon which the trial court could change custody of the minor child at issue. Further, there was no stipulation or agreement presented whereby the Chancellor could make any finding related to custody. In Samples v. Davis, the Mississippi Supreme Court held that where the terms of agreement are not announced in open court and neither the party nor his attorney has signed the agreement, the consent judgment is void because there is no substantial evidence that an agreement ever existed. 904 So.2d 1061, (Miss. 2004). Appellant herein did not consent to any ruling and there was no agreement as to any terms. As there were no such items announced in open court, the instant order is void. The facts at instance are similar to the decision in Klein v. McIntyre, where the lower court was reversed for modifying a joint custody arrangement and transferred full custody of children without execution of a consent order or specific findings of fact to support the - vii-

9 modification. 966 So.2d 1252, (Miss.Ct.App. 2007). The Court held that where it is clear from the record that a party did not agree to the terms of the consent judgment (which is identical to the facts of the instant case), this Court will not uphold such judgment. Id. (citing Samples, 904 So.2d at 1061.) The language of the order at issue does not lead to a conclusion that it was an agreed order and Appellant did not voluntarily consent and agree to its terms. With the lack of any record and/or substantive proof, this Court must reverse the lower court. 2. Whether the trial court s finding of contempt relating to the July 8, 2013, was in error. As the original Order of July 8, 2013, was issued in error, there cannot be any contempt as relates to same. As such, Appellant requests this honorable Court set aside the August 22, 2013, order relating to contempt. CONCLUSION The trial court had no basis upon which to change custody of the minor child. As such, the Order of July 8, 2013, must be set aside. Thus, the trial court s orders should be reversed. Respectfully submitted, this the 8 th day of April, M. LEE DULANEY, P.L.L.C. 347 NORTH SPRING STREET POST OFFICE BOX 7357 TUPELO, MS TELEPHONE: (662) FACSIMILE: (662) ATTORNEY FOR APPELLANT, REGINA WEATHERS BY: /s/ M. Lee Dulaney M. LEE DULANEY, MSB # viii-

10 CERTIFICATE OF SERVICE This will certify that the undersigned attorney has this date delivered a true and correct copy of the above and foregoing Brief of Appellant via MEC filing as follows: James R. Franks, Esq. jfranks@wheelerfrankslaw.com THIS, the 8 th day of April, /s/ M. Lee Dulaney M. LEE DULANEY - ix-