Hemphill-Weathers v. Farrish

779 So. 2d 167, 2001 Miss. App. LEXIS 25, 2001 WL 35979
CourtCourt of Appeals of Mississippi
DecidedJanuary 16, 2001
DocketNos. 1999-CA-00610-COA, 1999-CA-00611
StatusPublished
Cited by5 cases

This text of 779 So. 2d 167 (Hemphill-Weathers v. Farrish) is published on Counsel Stack Legal Research, covering Court of Appeals of Mississippi primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hemphill-Weathers v. Farrish, 779 So. 2d 167, 2001 Miss. App. LEXIS 25, 2001 WL 35979 (Mich. Ct. App. 2001).

Opinion

SOUTHWICK, P.J, for the Court:

¶ 1. The alleged father of two minor children brought a petition to set aside litigation settlements entered on the children’s behalf six years earlier. The petitioner had not been joined in the earlier action, an omission that he argues made the settlements void. The Chancery Court of Leflore County dismissed the petition. The putative father appealed. He alleges that he was the children’s father and should have been joined in the settlement proceedings. We disagree and affirm.

FACTS

¶ 2. The two minor children were injured in an automobile-truck accident in August 1991. A truck driven by an employee of Farrish Trucking Company collided with the van that carried the children and several other people. One child, Amanda, was born in 1990 and the other, Lavoris, Jr, was born in 1988. Martha Hemphill, the mother of these two children, through the effort of counsel reached a settlement with Farrish. Hemphill and her two children attended a settlement hearing in October of 1992. By statute, a court may approve settlement of a minor’s unliquidat-ed claim for less than $10,000 without the appointment of a guardian. Miss.Code Ann. § 93-13-211 (Rev.1994). The chancellor approved Lavoris’s settlement of less than $10,000 without a guardianship first being established. He also named Hemphill as guardian for Amanda and approved that child’s settlement worth more than $10,000.

¶ 3. In both children’s petition for settlement, Hemphill named Lavoris Weathers, Sr. as the father. She alleged that she and Weathers had never married, that he did not live with them and did not provide monetary support for either child. Six years later, though, the putative father, Weathers, petitioned the court to set aside both settlement orders. Weathers argued that the orders were void because he was not joined as a party. In contrast to what the mother claimed in the 1992 pleadings, Weathers now asserted that he had been living with her and the children at the time of the settlement and provided “regular support for the minor.” Farrish filed a motion to dismiss. An evidentiary hearing was held in which Weathers testified that [170]*170he had known about the litigation while it was occurring, that he was aware of the settlements approximately from the time that they were entered, and that he had a general understanding from the beginning about the details of the settlement. No proof of Weathers’s paternity was presented. The record from the 1992 hearing revealed that Hemphill testified that Weathers did not live with the family nor did he support them.

4. The chancellor found that Weathers had never been adjudged the father of either child. Neither was there proof that Weathers had been named as the father on either child’s birth certifícate. Instead, affidavits from the State Board of Health were acquired stating that no birth certificate for either child was on file. Relying on this evidence, the chancellor held that Weathers did not have to receive notice of the 1992 proceedings on the settlement. The court also found that the question of paternity was now irrelevant since the mother had the right to act on her own in 1992. Weathers also was found to have waited too long to employ Rule 60(b) in seeking relief from a final judgment. Farrish’s motion to dismiss was granted. Weathers appeals.

DISCUSSION

f 5. The initial legal issue is whether the chancellor in the 1992 settlement hearing had the authority to permit the settlement of the two minor children’s claims without the joinder of the putative father. A statute requires that both parents be given notice of proceedings involving the guardianship of their minor children:

In all proceedings involving a ward and brought under Chapter 13, Title 93, Mississippi Code of 1972, except as hereinafter provided, the proceedings shall join as defendants the parents or parent of the ward then living.... Process need not be served hereunder, however, if the parent or parents then living ... shall unite with the guardian in his petition.

Miss Code Ann. § 93-13-281 (Rev.1994). The referenced Chapter 13 of Title 93 contains the general sections on guardians and wards. The putative father argues that this statute requires that he be joined as a party to the settlement in order for the settlement order to be valid.

¶ 6. The questions before us are straightforward enough. The starting premise is that despite several alternative means to have paternity proven, Weathers has never been recognized by law as the father. In that event, is there only one “parent” for purposes of the just-quoted statute for joinder of parties? We consider statutory construction issues in finding an answer to that question. It is also necessary to examine the effect of the assertions in the 1992 proceedings that the father was known but that he was nowhere to be found and did not support the children. If six years later the putative father proves that he was not only in the picture, but in the home and supporting the family at the time of the judgment, is the judgment subject to being set aside?

¶ 7. We dispense with a few preliminary factual issues. There was testimony at the 1998 hearing that Weathers and Hemphill may have sought to be married or even had a ceremony, but no records were produced of the marriage. If the marriage occurred, it was after the 1992 settlement. No birth certificates were submitted for either child. Had there been, proof would have existed of whether anyone was named on them as the father of either child. The evidence supports that at the túne of the 1992 settlements, Weathers and Hemphill were unmarried and no adjudication nor official record in which Weathers asserted paternity existed.

A. Procedures for assertion of paternity

¶ 8. The means to assert paternity in 1992 were several. A statute provided that a mother, child or state agency could [171]*171institute a paternity action. Miss.Code Ann. § 93-9-9, as amended 1989 Miss. Laws ch. 438, § l.1 The statute has since been amended to permit the purported father to bring suit as well,2 but in 1992 the statute primarily was a means by which paternity could be proved by someone seeking support for the child. There is no assertion that this statute has ever been utilized by the parties.

¶ 9. In addition, the father could have had his name on the child’s birth certifícate. This could have been done at the initial time that information was given to the State Board of Health or, in 1992, within one year of the child’s birth. Miss. Code Ann. § 41-57-23(2), as amended 1989 Miss. Laws ch. 511, § 3. The one year limitation has since been changed. Miss. Code Ann. § 41-57-23(2) (Supp.2000) & § 93-9-9(3) (Supp.2000).

¶ 10. Finally, in 1992 a father had at least one other option to prove his paternity. A statute permitted chancery courts “to entertain suits for the custody, care, support and maintenance” of children, without a requirement that there be a pending divorce proceeding. Miss.Code Ann.

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Cite This Page — Counsel Stack

Bluebook (online)
779 So. 2d 167, 2001 Miss. App. LEXIS 25, 2001 WL 35979, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hemphill-weathers-v-farrish-missctapp-2001.