In The Matter of The Estate of Harper Marie Provenza, Deceased: Cody W. Gibson and Benjamin L. Provenza v. Donna McNatt and Rebecca W. Provenza, of the Estate of Louis J. Provenza, Individually, and as a Member of Northshore Group, LLC; and Northshore Group, LLC

• Court: Mississippi Supreme Court
• Decided: February 1, 2024
• Docket: 2023-CA-00007-SCT
• Status: Published

Opinion

IN THE SUPREME COURT OF MISSISSIPPI

NO. 2023-CA-00007-SCT

IN THE MATTER OF THE ESTATE OF HARPER MARIE PROVENZA, DECEASED: CODY W. GIBSON AND BENJAMIN L. PROVENZA

v.

DONNA McNATT AND REBECCA W. PROVENZA, EXECUTRIX OF THE ESTATE OF LOUIS J. PROVENZA, DECEASED, INDIVIDUALLY, AND AS A MEMBER OF NORTHSHORE GROUP, LLC; AND NORTHSHORE GROUP, LLC

DATE OF JUDGMENT: 12/20/2022 TRIAL JUDGE: HON. SHEILA HAVARD SMALLWOOD TRIAL COURT ATTORNEYS: CODY WILLIAM GIBSON WAYNE E. FERRELL, JR. CLYDE X. COPELAND EDWARD C. BRESEE, JR. W. WRIGHT HILL, JR. CRAIG L. LOWELL DENNIS G. PANTAZIS, JR. DANA G. TAUNTON WILLIAM CORBAN GUNN D. MICHAEL ANDREWS PEYTON JAMES MOORE PAUL MANION ANDERSON COURT FROM WHICH APPEALED: FORREST COUNTY CHANCERY COURT ATTORNEY FOR APPELLANTS: WAYNE E. FERRELL, JR. ATTORNEYS FOR APPELLEES: EDWARD C. BRESEE, JR. W. WRIGHT HILL, JR. NAVAN WARD, JR. D. MICHAEL ANDREWS DANA G. TAUNTON NATURE OF THE CASE: CIVIL - WRONGFUL DEATH DISPOSITION: AFFIRMED - 02/01/2024 MOTION FOR REHEARING FILED: BEFORE RANDOLPH, C.J., MAXWELL AND BEAM, JJ.

MAXWELL, JUSTICE, FOR THE COURT:

¶1. In this case, a father voluntarily relinquished all his parental duties and

rights—including inheritance rights—in a Texas proceeding. But after the child tragically

died in a small plane crash in Hattiesburg, Mississippi, the father presented himself to the

Forrest County Chancery Court as the child’s sole wrongful-death beneficiary. And he

opened his child’s estate so that he could pursue a wrongful-death claim against the estate

of his estranged father, who was piloting the plane that crashed.

¶2. Based on the Texas parental-rights termination, however, the Forrest County Chancery

Court concluded that the father could not be the child’s wrongful-death beneficiary. The

father has appealed to this Court. But we discern no abuse of discretion and affirm. Despite

the father’s insistence to the contrary, the Texas termination order is valid and not subject to

collateral attack—in Texas or Mississippi. And the father’s voluntary affidavit to support

the termination order was clear—the father expressly relinquished “the right to inherit from

and through the child” and “any other right or duty existing between a parent and child by

virtue of law.” This necessarily means that, before the child died, the father relinquished any

right he would have had under Mississippi law to be the child’s wrongful-death beneficiary.

So now that the child is deceased, the father cannot claim he is his child’s wrongful-death

beneficiary.

Background Facts & Procedural History

¶3. Benjamin L. Provenza’s daughter Harper died in a small plane crash in Hattiesburg,

2 Mississippi, in 2019. She was just two years old. Benjamin had never married Harper’s

mother, Anna Calhoun, who also died in the plane crash, along with Benjamin’s father, Louis

Provenza. Before the tragedy, Anna had left Benjamin, who lived in Alabama, and had taken

Harper to live with Benjamin’s father in Texas. According to Benjamin, his relationship with

his father was extremely strained, and Benjamin blamed his father for luring the mother of

his child away from him.

¶4. Twenty months before Harper died, at Anna’s urging, Benjamin agreed to voluntarily

terminate his parental rights in a Texas proceeding. Benjamin submitted to the Texas court

an affidavit, witnessed and notarized, stating that he “freely and voluntarily g[a]ve and

relinquished to Anna Lee Calhoun all my parental rights and duties.” These rights and duties

included “the duty to support the child, including providing the child with clothing, food,

shelter, medical and dental care, and education; . . . the right to represent the child in legal

action and to make other decisions of substantial legal significance concerning the child; . . .

the right to inherit from and through the child; . . . [and] any other right or duty existing

between a parent and child by virtue of law.” Based on this voluntary affidavit, a Texas court

entered an order terminating the parent-child relationship between Benjamin and Harper. See

Tex. Fam. Code Ann. § 161.204 (“In a suit for termination, the court may render an order

terminating the parent-child relationship between a child and a man who has signed an

affidavit of waiver of interest in the child, if the termination is in the best interest of the

child.”).

¶5. After Harper died, however, Benjamin presented himself to the Forrest County

3 Chancery Court as Harper’s father and sole wrongful-death beneficiary. Benjamin hired an

attorney who opened an estate and received letters of administration so that Benjamin could

pursue a wrongful-death claim against his father’s estate because Louis was piloting the

plane when it crashed.

¶6. The executrix of Louis’s estate—Benjamin’s stepmother—moved to intervene and

rescind the letters of administration issued to Benjamin’s attorney. She brought to the

Mississippi court’s attention the Texas termination order, which was based on the affidavit

Benjamin had submitted to the Texas court expressly relinquishing his parental duties and

rights—including his right to inherit from Harper.

¶7. Giving the Texas termination order full faith and credit, the Forrest County Chancery

Court determined Benjamin was “excluded as a wrongful death beneficiary and as an heir

at law based on the voluntary relinquishment of his parental rights in the state of Texas.”

The chancellor further rejected Benjamin’s argument that, as the natural father of an

illegitimate child, he should be able to establish his right to inherit through Mississippi Code

Section 91-1-15 (Rev. 2021). Because Benjamin had voluntarily relinquished any inheritance

right he had—along with any obligation to support or care for his daughter while she was

living—the chancellor ruled that Benjamin could not use Section 91-1-15 to “re-establish”

his right to inherit after she died.

¶8. Indeed, the chancellor found it was “troubling that Benjamin voluntarily relinquished

his rights in 2019 and now seeks to profit from her death.” In the chancellor’s words, “it

goes against public policy to legally remove any financial or other responsibility to a child

4 during her lifetime, then allow that same parent to benefit after that child dies due to

another’s negligence.”

¶9. Benjamin appealed to this Court. After the record was transferred to this Court,

Benjamin petitioned this Court for permission to file in the chancery court a motion for relief

under Mississippi Rule of Civil Procedure 60(b). See Griffin v. Armana, 679 So. 2d 1049,

1050 (Miss. 1996) (“[T]he adoption of [Rule] 60 conferred ‘limited concurrent jurisdiction

on the trial court to grant relief from a judgment even though an appeal has been perfected.’”

(quoting Moreland v. Riley (In re Est. of Moreland), 537 So. 2d 1345, 1347 n.1 (Miss.

1989))); Miss. R. Civ. P. 60 advisory comm. n. (“If the record on appeal has been

transmitted to the appellate court then leave must be obtained from the appellate court . . .

to move for relief under Rule 60(b).”). Permission was granted. And after due

consideration, the chancellor denied Benjamin relief under Rule 60(b).

Discussion

I. The chancellor properly considered the Texas termination order and supporting voluntary affidavit.

¶10. Benjamin’s primary contention is that the chancellor reversibly erred by relying on the

Texas termination order. He spends much of his brief questioning the authenticity and

validity of the Texas termination order and his supporting affidavit. But while Benjamin

makes an emotional plea that he felt he had no choice but to sign the affidavit, which was

presented to him at a time when he was struggling financially and mentally, he stops short

of claiming that he did not in fact sign a voluntary release or that the release was somehow

fraudulent or fake. So there is no question that the documents are what they purport to

5 be—an affidavit in which Benjamin voluntarily released his parental rights and duties and

a resulting termination order.1 See Boyd v. State, 175 So. 3d 1, 4 (Miss. 2015)

(“Authentication simply establishes that ‘a matter is what its proponent claims it to be.’”

(quoting MRE 901)).

¶11. This leaves just two arguments against the chancellor’s reliance on the Texas

termination order—first, that it was never enrolled in Mississippi and, second, that it was

void due to Texas’s lack of subject matter jurisdiction.

A. The Texas termination order did not have to be enrolled in Mississippi.

¶12. Citing Mississippi Code Section 11-7-305 (Rev. 2019), Benjamin argues the

chancellor abused her discretion by relying on the Texas order because the foreign order was

never enrolled in Mississippi. But Benjamin’s reliance on Section 11-7-305 is misplaced.

The reason for enrolling a foreign judgment under Section 11-7-305 is so a “judgment

creditor” may enforce the judgment and collect against a “judgment debtor” in Mississippi.

1 In her Rule 60(b) order, the chancellor emphasized Benjamin has never denied the existence or accuracy of the Texas termination order or his affidavit in support. Instead, he has merely argued the Texas documents were never properly authenticated and thus should never have been admitted into evidence. To resolve any possible question of the Texas order’s authenticity, the chancellor ordered the trial record be supplemented with the entire record of the Texas termination proceeding, which the chancellor ruled had been properly certified under Mississippi Rule of Civil Procedure 44(a)(1). Following this order, Benjamin has filed with this Court several objections and motions directed at the order to supplement the trial court record. We deny these motions. The ordered trial-record supplementation has had no impact on our conclusion that Benjamin’s challenges to the authenticity of the Texas termination order and supporting affidavit are without merit. Because we deny all of Benjamin’s open motions in this Court, we also dismiss as moot the Appellees’ motion to strike Benjamin’s open motions. Consequently, Benjamin’s motion for additional time to respond to the Appellees’ motion to strike and his motion to strike Appellees’ motion to strike are likewise dismissed as moot.

6 Miss. Code Ann. § 11-7-305. Section 11-7-305 simply does not apply to a foreign child-

custody order like the one presented to the chancery court.

¶13. Instead, if any statute applies, it would be Mississippi Code Section 93-27-305 (Rev.

2021). Section 93-27-305 governs the registration in Mississippi of child-custody

determinations made in other states. But the statute merely permits registration of out-of-

state custody decisions—it does not require registration. Id. Under that statute, “[a] child

custody determination issued by a court of another state may be registered in this state, with

or without a simultaneous request for enforcement . . . .” Miss. Code Ann. § 93-27-305(1)

(emphasis added); see Chandler v. City of Jackson Civ. Serv. Comm’n, 687 So. 2d 142, 145

(Miss. 1997) (noting the general rule that may, when used in a statute, is permissive and not

mandatory (citing C.J.S. Statutes § 380 (1953)).

¶14. In this case, there was no reason to register the Texas parental-rights termination order

in Mississippi. None of the parties involved lived in Mississippi. Benjamin lived in

Alabama, and Harper lived with her mother in Texas. The parties’ only connection to

Mississippi was that Forrest County happened to be where Harper and her mother tragically

died in the crash. So the fact the termination order had not been registered in Mississippi did

not preclude the chancellor from considering the order when determining if Benjamin was

Harper’s wrongful-death beneficiary.

B. The Texas termination order was not subject to collateral attack.

¶15. Benjamin also argues the chancellor erred by giving full faith and credit to the Texas

termination order without allowing Benjamin the opportunity to challenge the foreign order

7 on jurisdictional grounds. Benjamin asserts that, because Harper had lived in Texas less than

six months, the Texas court lacked subject-matter jurisdiction over the termination

proceeding. So the Texas termination order is void, he contends.

¶16. “Generally, states are required to recognize the judicial proceedings of sister states

under the Full Faith and Credit Clause of the United States Constitution.” Sapukotana v.

Sapukotana, 179 So. 3d 1105, 1112 (Miss. 2015) (citing U.S. Const. art. IV, § 1). But “[t]he

requirements of full faith are tempered by some basic limitations”—the primary limitation

being “that full faith and credit does not apply if the rendering court did not have jurisdiction

over the parties in the subject matter.” Sollitt v. Robertson, 544 So. 2d 1378, 1381 (Miss.

1989) (citing Fehlhaber v. Fehlhaber, 681 F.2d 1015, 1020 (5th Cir. 1982)). But “[w]hen

a foreign judgment is collaterally attacked on subject matter grounds . . . [t]he courts of this

state may inquire into no question other than those which would be considered upon

collateral attack in the state in which the judgment was rendered.” Id. This requires looking

to the law of the state where the judgment was issued and whether such law would grant

relief. Id.

¶17. In this case, Texas law is clear—the termination order may not be collaterally attacked

on jurisdictional grounds. Under Texas law, “[a] direct or collateral attack on an order

terminating parental rights based on an unrevoked affidavit of relinquishment of parental

rights”—which is what happened in Benjamin’s case—“is limited to issues relating to fraud,

duress, or coercion in the execution of the affidavit.” Tex. Fam. Code Ann. § 161.211(c).

Once a Texas court determines it has jurisdiction over the termination proceeding, which the

8 Texas court did in Benjamin’s case, Texas will not allow the termination order to be directly

or collaterally attacked on jurisdictional grounds. In re Int. of D.S., 602 S.W.3d 504, 517

(Tex. 2020). Moreover, a Texas termination order “is not subject to collateral or direct

attack” on any grounds “after the sixth month after the date the order was signed.” Tex. Fam.

Code Ann. § 161.211(a). The Texas termination order had been entered years prior to its

being presented to the Mississippi chancellor to contest Benjamin’s status as Harper’s

wrongful-death beneficiary. At this point, the Texas order could not be collaterally attacked.

So the chancellor did not abuse her discretion by not allowing Benjamin to attempt to

collaterally attack the order on jurisdictional grounds.

II. The chancellor did not err by finding Benjamin could not be Harper’s wrongful-death beneficiary under Mississippi law.

¶18. Alternatively, Benjamin argues that the Texas order terminating his parental rights

does not preclude him from being Harper’s wrongful-death heir under Mississippi law.

¶19. Benjamin relies on Mississippi’s wrongful-death statute, Mississippi Code Section 11-

7-13 (Rev. 2019), and asserts no provision in that statute excludes him as Harper’s father

from being a wrongful-death beneficiary. But it is not the statute the chancellor relied upon.

It was the voluntary relinquishment of any rights Benjamin would have otherwise had under

the statute that led the chancellor to exclude him as a wrongful-death beneficiary.

¶20. Benjamin tries to get around this by asserting that there is no Mississippi law that

holds that the voluntary relinquishment of parental rights terminates a parent’s right as a

wrongful-death beneficiary. But Benjamin voluntarily relinquished his parental rights under

Texas law. So it is Texas law that dictates the extent to which the voluntary relinquishment

9 impacted his right to be a wrongful-death beneficiary in Mississippi. Cf. Wise ex rel. Wise

v. Aspey, Watkins & Diesel Attorneys at Law, P.L.L.C., 524 P.3d 827, 830 (Ariz. Ct. App.

2023) (relying on Maine law to determine the extent to which a parental-rights termination

impacted wrongful-death beneficiary status in Arizona because Maine was the state that

terminated the parental rights). Under Texas law, “an order terminating the parent-child

relationship divests the parent and the child of all legal rights and duties with respect to each

other, except that the child retains the right to inherit from and through the parent unless the

court otherwise provides.” Tex. Fam. Code Ann. § 161.206(b) (emphasis added); see also

Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985) (“A termination decree is complete, final,

irrevocable and divests for all time that natural right as well as all legal rights, privileges,

duties and powers with respect to each other except for the child’s right to inherit.”). So the

order necessarily divested Benjamin of the right to be Harper’s wrongful-death beneficiary.

¶21. Moreover, in his voluntary affidavit, Benjamin expressly relinquished “any other right

or duty existing between a parent and child by virtue of law.” And having represented to

Texas that he was relinquishing all rights, the chancellor did not abuse her discretion by

preventing him from coming to court in Mississippi and asserting he has retained the legal

right to be Harper’s sole heir and wrongful-death beneficiary.

¶22. Still, Benjamin insists that, without subsequent adoption, his right to inherit from

Harper and be her wrongful-death beneficiary remained intact. But in his affidavit, Benjamin

acknowledged that he “fully underst[oo]d that the termination suit may or may not be

combined with a suit to adopt my child, . . . [and] that either way, once the Court terminates

10 my parental rights, I have no further say concerning my child, whether or not my child is

adopted then or at some later time.” So the relinquishment of rights was not conditioned on

Harper’s subsequently being adopted. Nor does Texas law place such a condition on the

severing of rights between parent and child. Tex. Fam. Code Ann. § 161.206.

¶23. Finally, Benjamin argues he has met all the requirements to inherit from Harper under

Mississippi Code Section 91-1-15. This, he suggests, allows him to still be Harper’s

wrongful-death beneficiary under Section 11-7-13. Under Section 11-7-13, the wrongful-

death provisions also apply to the natural father of an illegitimate child if he “has or

establishes the right to inherit from the deceased under Section 91-1-15.” Miss. Code Ann.

§ 11-7-13. But we agree with the chancellor that Benjamin cannot use Section 91-1-15 to

re-establish the parental rights he voluntarily relinquished. The issue before the chancellor

was not whether Benjamin established the right to inherit through Harper before she died.

The issue is whether Benjamin relinquished the right to inherit through Harper before she

died, which he clearly did.

¶24. Further, even if Section 91-1-15 provided Benjamin a statutory mechanism to become

Harper’s wrongful-death beneficiary, it still would not apply under the facts. Section 91-1-15

prohibits a natural father from inheriting through an illegitimate child “unless the father has

openly treated the child as his, and has not refused or neglected to support the child.” Miss.

Code Ann. 91-1-15(3)(d)(i). Benjamin voluntarily relinquished “the duty to support the

child, including providing the child with clothing, food, shelter, medical and dental care, and

education[.]” And by choosing to do so, Benjamin “knowingly and willingly forfeited any

11 benefit, or burden, arising from openly treating [the child] as his own and supporting him

during his lifetime.” Stanton v. Patterson (In re Est. of Patterson), 798 So. 2d 347, 349

(Miss. 2001). As this Court has made clear, a father in this situation “cannot have it both

ways.” Id. As the chancellor aptly stated, a father cannot agree “to legally remove any

financial or other responsibility to a child during her lifetime, . . . [but then still] benefit after

that child dies due to another’s negligence.”

¶25. Bottom line, the chancellor did not abuse her discretion by determining that, based on

the Texas termination order, Benjamin could not establish he was Harper’s wrongful-death

beneficiary. We affirm.

¶26. AFFIRMED.

RANDOLPH, C.J., KITCHENS AND KING, P.JJ., COLEMAN, BEAM, CHAMBERLIN, ISHEE AND GRIFFIS, JJ., CONCUR.