IN THE SUPREME COURT OF MISSISSIPPI

NO. 96-CA-00349-SCT

WILMA WALKER

v.

HARRY SARTIN

THIS OPINION IS NOT DESIGNATED FOR PUBLICATION AND MAY NOT BE CITED,

PURSUANT TO M.R.A.P. 35-A

DATE OF JUDGMENT: 11/03/95

TRIAL JUDGE: HON. SEBE DALE, JR.

COURT FROM WHICH APPEALED: JEFFERSON DAVIS COUNTY CHANCERY

COURT

ATTORNEY FOR APPELLANT: PAUL A. KOERBER

ATTORNEY FOR APPELLEE: GARLAND D. UPTON

NATURE OF THE CASE: CIVIL - CUSTODY

DISPOSITION: AFFIRMED - 09/04/97

MOTION FOR REHEARING FILED:

MANDATE ISSUED: 9/25/97

BEFORE SULLIVAN, P.J., PITTMAN AND BANKS, JJ.

SULLIVAN, PRESIDING JUSTICE, FOR THE COURT:

Harry Sartin and Cynthia Holloway lived together in Jefferson Davis County with their child

Donovan, and Jasmine and Miesha Holloway, Cynthia's children by a prior marriage.

While he lived with them Sartin supported the family, but when problems arose Sartin left the home.

He ultimately lost his job some three years ago due to cocaine abuse.

When Cynthia was killed in an accident, on September 11, 1995, her mother, Wilma Walker, moved

into Cynthia's home to care for the children. Ultimately, Wilma sold her house so that the children

could live in the home in which they had been reared. Wilma Walker's mother lives directly across the

street from that home. The home next door is her brother. Also, her younger daughter Angela and

Angela's baby, Cara, live in the house with Cynthia's children. On September 12, 1995, the

Department of Human Services notified Sartin of Cynthia's death.

Meanwhile, Chancellor Larry Buffington of the Thirteenth Chancery Court District had been sent out
of state for a judicial conference. In his absence Chief Justice Armis E. Hawkins had appointed the

three chancellors of the Tenth Chancery Court District to sit as special judges during Buffington's

absence. Chancellor Sebe Dale, Jr., one of the special judges, heard this case.

Sartin filed a writ of habeas corpus to obtain custody of his son, Donovan, from Mrs. Walker. This

writ was made returnable before Chancellor Dale in Marion County, Mississippi. The case was set for

trial on September 28, 1995, within the time that Chancellor Buffington was outside the state. For

various reasons the case was continued until October 5, 1995, at a time when Chancellor Buffington

was back in his district. Walker filed a response to the Writ of Habeas Corpus and a cross petition

sought guardianship for all three of the children.

At the conclusion of the trial the Chancellor granted custody of Donovan to his father, but scheduled

a gradual transition by way of a detailed visitation schedule which also included visitation by Walker

with Donovan after the transfer was completed. Walker lost on all of her pleadings.

I.

DID THE SPECIAL JUDGE HAVE AUTHORITY TO ACT AFTER THE EXPIRATION OF

HIS APPOINTMENT PURSUANT TO MISS. CODE ANN. § 9-1-105?

Walker contends that when Chancellor Dale continued the case due to schedule conflicts from

September 28 to October 4 and when he tried the case through its finality in late November 1995, he

exceeded his authority under his special appointment. It is Walker's argument that since Chancellor

Dale lacked authority his judgment is void.

Chief Justice Hawkins made the special appointment pursuant to Miss. Code Ann. § 9-1-105 (1994),

which reads in relevant part:

(1) Whenever any judicial officer is unwilling or unable to hear a case or unable to hold or

attend any of the courts at the time and place required by law by reason of the physical disability

or sickness of such judicial officer, by reason of the absence of such judicial officer from the

state, by reason of the disqualification of such judicial officer pursuant to the provision of

Section 165, Mississippi Constitution of 1890, or any provision of the Code of Judicial

Conduct, or for any other reason, the Chief Justice of the Mississippi Supreme Court, with the

advice and consent of a majority of the justices of the Mississippi Supreme Court, may appoint

a person as a special judge to hear the case or attend and hold a court.

. . . .

(8) The order appointing a person as a special judge pursuant to this section shall describe as

specifically as possible the duration of the appointment.

(9) A special judge appointed pursuant to this section shall take the oath of office, if necessary,

and shall, for the duration of his appointment, enjoy the full power and authority of the office he

is appointed.

Thus, even though a continuance resulted in the case being heard on October 4, 1995, (time frame of

appointment terminated), instead of September 28, 1995, (time frame of appointment), Walker
contends that Chancellor Dale lacked authority to hear the case.

In a letter to Walker's counsel, Chancellor Dale stated that he properly maintained authority to

preside over the case throughout the trial court proceedings. Chancellor Dale stated that Chief Justice

Hawkins's appointment carried continuing power for handling cases filed and assigned to the

particular appointed Chancellor. The expiration of the power applied only to cases arising beyond the

authorized date of Chancellor Buffington's return. Chancellor Dale concluded that assigning the case

to Chancellor Buffington at his return would create a chaotic situation rather than an expeditious one.

Walker cites Hall Commission Co. v. Crook, 40 Miss. So. 1006 (1905), as support that Chancellor

Dale's authority ended when Chancellor Buffington returned to office. In Hall Commission Co., the

Governor of Mississippi appointed the Honorable W.R. Harper as acting Chief Justice since the

Mississippi Supreme Court Chief Justice was ill. This Court noted that the appointment was not a

specific appointment to preside over a specific case, but rather, was a general appointment to preside

in all cases, but during the limited time of the Chief Justice's illness. Hall Commission Co., 40 Miss.

So. at 1007. This Court stated:

The law seems clear that a special judge appointed to try a special case will take part in the

decision of everything relating to that cause . . . . That is not this case. Here, clearly, Judge

Harper's power to act as a special judge was limited to the period of the sickness of the chief

justice. Immediately upon the termination of that disability-- that is to say, when the chief justice

resumed his duties-- the power of the special judge at once terminated.

Id. 40 So. at 1007. Applying the law and reasoning found in Hall Commission Co., Chancellor

Dale's authority to act as a chancellor for the Thirteenth Chancery Court District terminated when

Chancellor Buffington resumed the bench on October 1, 1995. Since the case sub judice was filed,

and proper venue was proper, in the Thirteenth Chancery Court District, Chancellor Buffington, not

Chancellor Dale, was the proper presiding judge. Therefore, Chancellor Dale's judgement is void.

While having had no other opportunity to specifically address termination of authority of a specially

appointed judge, this Court has stated that a judges with color of authority act as de facto judges and

their rulings are valid. Crocker v. Sears, Roebuck & Co., 346 So.2d 921 (Miss. 1977). In Crocker,

the appellant claimed that a county judge of Lauderdale County lacked authority to sit as circuit

judge of the Eighth Judicial District and that his judgement was void. While noting that the source of

the judge's authority under either the statute appointing a special judge acting for a sick or disabled

judge or filling in judicial vacancies was not apparent from the record, this Court stated that the judge

was a de facto circuit judge under Miss. Code Ann. § 25-1-37, which states:

The official acts of any person in possession of a public office and exercising the functions

thereof shall be valid and binding as official acts in regard to all persons interested or affected

thereby, whether such person be lawfully entitled to hold the office or not and whether such

person be lawfully qualified or not

Miss. Code Ann. § 25-1-37. Crocker defined a de facto officer as "one who exercises the powers and

discharges the functions of an office, being then in possession of the same under color of authority,

but without actual right thereto." Id. at 922 (quoting Adams v. Mississippi State Bank, 23 So. 395,

398 (Miss. 1898); Raper v. State, 317 So.2d 709, 711 (Miss. 1975)). Citing Bird v. State, 122 So.
539, 540 (Miss. 1929), Crocker stated, "It is well settled in this state that acts of a de facto judge are

valid, regardless of whether he was properly appointed or qualified or not . . . ." Id. at 922-23.

In the recent case Nelson v. State, Miss. 626 So.2d 121 (1993), this Court addressed whether a

special judge had authority to hear a case based on recusal where the court failed to give proper

notice to this Court pursuant to Miss. Code Ann. § 9-1-105(5). Nelson upheld Crocker and Bird,

stating that "one who acts pursuant to the color of authority, though without legal authority,

nevertheless performs valid acts. Any challenge regarding the validity of an actor's appointment must

be brought against the actor in proceedings contesting the right of office." Nelson, Miss. 626 So.2d

at 125. See also Upchurch v. City of Oxford, Miss. 17 So.2d 204 ( 1944).

Since the Hall Commission Co. decision in 1905, the Mississippi Legislature has enacted § 25-1-37

stating that a de facto officer's decision is binding even if the officer was not a de jure officer. This

Court, dating back from at least the mid-twentieth century, has on many occasions upheld decisions

of judicial officers acting as such but not necessarily under appropriate authority. In the case sub

judice, Chancellor Dale was appointed special judge to hear cases arising in Chancellor Buffington's

absence. This case was filed during Chancellor Buffington's absence and was scheduled for hearing

during his absence. The case was continued for approximately five days due to the attorney conflicts

in scheduling. At the very least Chancellor Dale properly presided over the case until October 1,

1995. However, common sense and crowded dockets dictate that Chancellor Dale did not supersede

his power in presiding over the case even when the regular chancellor returned. Clearly, the regular

chancellor would have duties arising on and after October 1, 1995. No conflict of interest or act of

impropriety as to Chancellor Dale appears within the record. Chancellor Dale presided over the case

sub judice as an officer of the court at least as an officer de facto. Therefore, this part of Walker's

assigned error is without merit.

II.

WHETHER THE TRIAL COURT ERRED IN FAILING TO MAKE ANY FINDING

WHATSOEVER AS TO THE BEST INTEREST OF THE MINOR CHILD INVOLVED

IN THESE PROCEEDINGS?

III.

WHETHER THE TRIAL COURT ERRED IN FAILING TO FIND THAT HARRY

SARTIN HAD ABANDONED DONOVAN SARTIN BY REFUSING TO PAY ANY

CHILD SUPPORT FOR OVER FOUR (4) YEARS AND BY HAVING FAILED TO

HAVE MADE ANY CONTACT OR VISITED WITH THE MINOR?

IV.

WHETHER THE TRIAL COURT ERRED IN NOT MAKING ANY FINDINGS

WHATSOEVER AS TO THE CONDUCT OF HARRY SARTIN BEING IMMORAL

AS TO BE DETRIMENTAL TO THE MINOR?

Since all three of these issues are related to the same overall issue, they will be treated as one.

Walker contends that the chancellor merely applied the presumptive rule that the natural parent have
custody of a child rather than consider the best interests and welfare of Donovan when awarding

Sartin custody. Walker contends that Donovan's best interests lie in being in custody with his two

half-sisters under Walker's care. Walker contends that Sartin abandoned Donovan. Furthermore,

Walker contends that Sartin is immoral and detrimental to Donovan.

This Court has on numerous instances dealt with child custody cases between a parent and a third

party, including grandparents. In Rutland Pridgen, 493 So.2d 952, 954 (Miss. 1986), this Court

stated:

The general rule is: It is presumed that the best interest of a child will be preserved by his or her

remaining with the surviving parent. In order to overcome this presumption there must be a

clear showing that the parent has (1) abandoned the child, or (2) the conduct of the parent is so

immoral to be detrimental to the child, or (3) the parent is unfit mentally or otherwise to have

custody. Stoker v. Huggins, 471 So.2d 1228 (Miss. 1985); Naveda v. Ahumada, 381 So.2d

147 (Miss. 1980); Milam v. Milam, 376 So.2d 1336 (Miss. 1979); Turner v. Turner, 331

So.2d 903 (Miss. 1976).

Simply stated, the natural parent is entitled to custody, as against a third party, unless one of the

above conditions is clearly proved.

Rutland, 493 So.2d at 954. Furthermore, grandparents have no right to custody of a grandchild

against a natural parent. Etheridge v. Yawn, 605 So.2d 761, 764 (Miss. 1992).

In Etheridge, this Court defined "abandonment"

as any course of conduct on the part of a parent evincing a settled purpose to forgo all duties

and relinquish all parental claims to the child. It may result from a single decision by a parent at

a particular point in time. It may arise from a course of circumstances. The test is an objective

one: whether under the totality of the circumstances, be they single or multiple, the natural

parent has manifested his severance of all ties with the child. See Bryant v. Cameron, 473

So.2d 174, 178-79 (Miss. 1985); Petit v. Holifield, 443 So.2d 874, 878 (Miss. 1984);

Ainsworth v. Natural Father, 414 So.2d 417 (Miss. 1982).

Ethridge, 605 So.2d at 764. Furthermore, the party charging abandonment must prove the charge by

clear and convincing evidence. Id. at 764; Bryant v. Cameron, 473 So.2d at 178; Petit, 443 So.2d at

878.

Since the chancellor properly stated the relevant law, this Court does not proceed with a de novo

review. After citing all relevant law, the chancellor concluded that the evidence failed to clearly and

convincingly show that Sartin had a settled purpose to abandon and relinquish all duties and parental

claims to Donovan. When reviewing the chancellor's factual assessment of the case, this Court does

not ask "how we would have decided the case ab initio but whether there be credible proof from

which a rational trier of fact may have found abandonment by clear and convincing evidence."

Etheridge, Miss. 605 So.2d at 764. After assessing the facts before the court, the chancellor stated

that Walker's witnesses failed to prove Sartin abandoned Donovan. The chancellor noted that

Walker's witnesses' testimony was based on hearsay of what Cynthia had said, and not on personal

knowledge. On the other hand, Sartin testified that he had a continuing relationship with Donovan
and also supported Donovan, though on an infrequent basis. The chancellor concluded that since

Cynthia unfortunately was unable to testify, Walker failed to overcome the presumptions with clear

and convincing evidence as required by law. After reviewing the record, this Court must conclude

that the chancellor neither failed to properly assess the facts or apply applicable law as to

abandonment.

Walker also contends that Sartin is immoral so as to be detrimental to Donovan. As proof, Walker

offered evidence that Sartin has used cocaine and had a violent domestic dispute with Cynthia while

they lived together. The chancellor specifically stated that the evidence before the court failed to raise

any serious assertions. This Court agrees. Both incidents occurred more than three years ago. Sartin

testified that in the last few years he had passed several drug tests. While the domestic dispute was

unfortunate, the incident certainly does not rise to the level that Sartin is immoral and detrimental to

Donovan.

CONCLUSION

The chancellor had jurisdiction to hear this case pursuant to Chief Justice Hawkins's appointment.

When the case was continued, and the hearing took place after Chancellor Buffington's return,

Chancellor Dale at the very least was acting under the color of authority as a de facto judicial officer

of the court. We will not reverse a chancellor on a finding of fact unless there is manifest error. Had

the Chancellor declined to give the custody of Donovan to Harry Sartin, and Sartin appealed on this

same record we would do there what we do here and affirm.

AFFIRMED.

LEE, C.J., PRATHER, P.J., PITTMAN, BANKS, ROBERTS, SMITH AND MILLS, JJ.,

CONCUR. McRAE, J., CONCURS IN RESULT ONLY.