IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2017-CA-01060-COA
MICHELLE POPE APPELLANT

v. DANIEL FOUNTAIN APPELLEE
DATE OF JUDGMENT: 06/15/2017 TRIAL JUDGE: HON. D. NEIL HARRIS SR. COURT FROM W HICH APPEALED: GEORGE COUNTY CHANCERY COURT ATTORNEY FOR APPELLANT: MARK V. KNIGHTEN ATTORNEY FOR APPELLEE: CHRISTOPHER BRICE W IGGINS NATURE OF THE CASE: CIVIL - DOMESTIC RELATIONS DISPOSITION: REVERSED AND REMANDED - 12/17/2019 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE BARNES, C.J., McCARTY AND C. WILSON, JJ. C. WILSON, J., FOR THE COURT: ¶1. This is a p a ternity m atter. Although there are only t wo parties to this action, the case

r e ally involves three adults: Daniel Fountain, Michelle P ope, and Brian Martin; a n d o n e

m inor child: J.M. ¶2. On June 15, 2017, the George County Chancery Court entered an order establishing Fountain as the biological f ather of J.M. The c ourt also entered a tem porary o rder granting Fountain v isitation with J.M. and requiring F ount a i n t o p ay child support. Pope, J.M.’s

m other, now appeals f

rom the judgm ent establishing paternity and the t em porary order. Pope contends that the c hancery court erred in entering the paternity and tem porary orders because
Martin (Pope’s ex-husband and t he m an who had been previou s l y n a m ed as J.M.’s legalf

ather) should have been added a s a necessary party to t his action under M ississippi Rule of Civil Procedure 19. ¶3. W e agree w ith Pope that Martin should have been added a s a p a r t y to this action. Theref ore, we reverse the c hanc e l l o r ’ s judgm ent establishing paternity and rem and f or f urther proceedings once M artin has been properly joined. W e f urther f i nd that we lack jurisdiction to address the tem porary order on appeal.
BACKGROUND ¶4. P o p e a n d M a r t i n ma r r ied on Decem ber 23, 1994. Around 2 006, Martin had a
vasectom y . 1 In 2007, P ope (while still legal l y ma r r i e d to, b ut separated f r om , Martin) engaged in a sexual r elationship with Fountain. As a r esult of her relationship with F ountain, Pope becam e pregnant. And in October 2007, Pope gave birth to J.M. ¶5. According to s worn testim ony , Martin h as known since J.M.’s conception that he was
not J.M.’s biological f

ather. 2 In f

act, upon review of the record, it appears that M artin, Pope, and Fountain each knew, f rom the tim e t h a t J

. M

. was born, t hat F ountain was J.M.’s b i o l o g i cal f

ather. Nonetheless, Pope listed Martin a s the f ather on J.M.’s birth certif icate

.

1 P rio r to M artin ’ s v a secto m y , P o p e an d M a rtin h ad co n c eiv ed f o u r c h ild ren to g eth er.

2 M artin testif

ied b ef o re th e G eo rg e C o u n ty C h an cery C o u rt th at h e “k n ew th at [ J.M

. ] w a sn ’t [ h i s] b ecau se [ h e] co u ld n ’t h av e c h ild ren at th at p articu l ar tim e.” P o p e’s testim o n y w a s co n sisten t : Q : A ll r ig h t. S o
. . . w h en [ y o u ] a n d M r. M artin g o t b ack to g eth er an d y ’ all reco n ciled an d y o u w ere p reg n an t, d id [ M artin ] r e c o gnize th at ch i ld n o t to b e h is ch ild ?
A : H e d i d , y es. 2It is unclear whether M artin and Fountain a greed to this b ef ore Pope listed Martin as J.M.’s
f ather, b ut both Martin and Fountain were, at the least, aware soon af ter and d id not dispute Pope’s action. 3 ¶6. N o t w i t h s t a n d i n g M a rtin being nam ed the f ather on J .M.’s birth certif i c a t e a n d providing f

inancial s upport f

or J.M., Pope also allowed Fou n t a i n t o have signif icant visitation with J.M. f

r om the tim e that he was six m o nths old. 4 Pope and Fountain agreed to this visitation; it was n ot court ordered. According to P ope, she worked a second job on the weekends, and it was helpf ul f o r Fountain t o keep J.M. while she was w orking. Regardless, it is not disputed that Fountain h as m aintained a relationship with J.M. throughout his lif e, despite Martin being nam ed J.M.’s legal f a ther. ¶7. On October 3, 2012, when J.M. was f ive y ears old, Pope a nd Martin divorced. J .M. is listed as a child of Pope and Martin’s m arriage 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 leg a l c u s t o d y of J.M., that Martin will pay c hild s u pport a nd continue providing J.M. with m e dical and d ental insurance, and t hat M artin will have visitation with
J.M. 5

3 T h e r eco r d s u g g ests th at th e p a rties ag reed to M artin b e in g n am ed as J.M .’s leg al f ath e r o n h is b i rth certif

icate b ecau se J.M

. w as b o r n w ith a co n g en i tal h e art d e f ect t h at w o u l d req u i r e su r g ery , an d M artin , w h o w as o n activ e d u ty in th e U n i ted S t ates N av y , ag reed to p l ace J.M . o n h is h ealth in su ran ce as h i s d ep en d en t.

4 D u rin g th is tim e p erio d , M artin w as d ep lo y ed

.
5 M artin w as serv in g activ e d u t y w ith th e U n i ted S tates N av y at th e tim e th e d ecree w a s en tered , so v isitatio n w as co n d itio n e d u p o n M artin b ein g tran s f e rred o r o th erw ise resid in g w ith in 5 0 0 m i les o f P o p e an d J.M

. 3PROCEDURAL HISTORY

¶8. Approxim ately three and a half y ears af t er Pope and Martin’s divorce, on March 21, 2016, Fountain f

i led an em ergency m otion f or ex parte relief in t he Harr i s on County Chancery Court, Second Judicial District. Fountain alleged that Pope had abused J.M. (by spanking him with a wooden padd l e) and requested tem porary sole legal a n d phy sical custody of J.M. Fountain nam ed Pope a s the sole def endant and did n ot include Martin as

a party to the a ction. That s am e day , the court h e l d a n e x p arte hearing. The court then entered an em ergency ex parte order giving Fountain t em porary sole phy sical custody of J.M. and p rohibiting P ope f

rom being w ithin 1,000 f

eet of J .M., u ntil f

urther ordered by the court. ¶9. Following the entry of the em ergency ex parte order, Pope hired counsel. On March 24, 2 016, Pope f

iled a m otion to dism iss or to transf er f o r im proper jurisdiction. A f

ew weeks later, the Harrison County Chancery Court, Second Judicial District, gr anted the

m otion and transf

erred the case to the George County Chancery Court. ¶10. On April 11, 2016, Pope f iled a separate petition t o establish p aternity 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 c h ild, nam ely , [ J.M.], born [ in October 2007].” Pope nam ed F ountain as the s o le def endant to the p e t i t i o n a n d did not include Martin as a party

to the action. ¶11. On April 29, 2016, the George County C hancery Court entered a n order consolidating the two cases between P ope and Fountain. On the sam e date, Fountain f iled a response and counter-petition to Pope’s petition to establish paternity

. In his r esponse, F ountain adm itted

4that he is the b iological f at h e r of J.M. and that an order establishing paternity should be entered. In his counter-petition, Fountain re q u e sted im m ediate phy sical custody of J.M.;
tem porary c hild s upport; a f u ll hearing on the m erits to d eterm ine perm anent custody , visitation, and support rights and obligations of the parties; and a n appointm ent of a guardian ad litem (GAL) f or J.M. Following a hearing, the George County Chancery

Court entered

a tem porary order awarding Pope and Fount a i n joint legal custody , with Pope having visitation, and appointing a GAL f or J.M. ¶12. On August 2, 2016 , t h e G A L f i l e d h e r i n itial investigative report with the court,

recom m ending that J.M. be p l ace d i n P o p e ’ s c ustody and have liberal visitation with Fountain. On August 3, 2016, the court held an o t h e r hearing. Prior to this hearing, the
p a r t ies conf

erenced w ith the chancellor of f the record. Apparently , during the of f

- r e c o r d conf erence, the parties raised the question of whether Martin (J.M.’s legal f ather pursuant
to J.M.’s birth certif

icate and Pope and Martin’s divorce decree) was a n ecessary party to the action. Once back on t he recor d , t h e chancellor appeared to agree, stating, “Y’all, I don’t know h ow we got to this point.

. . . [ W ]e shoul d h a v e a d d r e s s e d this bef ore n ow, but Mr. Martin has got to be a party to this proceeding.” 6

6 T h e ch an cello r f

u rth er ex p lain ed , H e re’s th e p r o b lem , M r. F o u n tain , is th at in o rd er f o r m e to g o f

o rw ard o n th e p atern ity , ev e n th o u g h y o u an d [ P o p e] ag ree, th ere is a co u r t o rd e r o u t th ere th at say s M r. M artin is t h e f ath er o f [ J.M .]

. A n d I’m n o t– an d all th ree o f t h ese law y ers h a v e g iv e n m e a lo t o f d etail t h a t I’m n o t g o in g t o [ g o ] in to

– I m ean , ev ery b o d y k n o w s w h at’s g o in g o n
. B u t f ro m a leg al sta n d p o in t th e law req u ired th at M r. M a r tin e ith er w a iv e p ro c ess, en ter an ap p earan ce o r b e a p art o f th is actio n
. B ecau s e rig h t 5¶13. D e s p i t e t h i s r e cognition, however, the chancellor p roceeded w ith the Au g u s t 3

hearing. A t the end of the hearing, the c hancellor f ound the court l acked the n ecessary and
proper parties to m a ke a determ ination on paternity : “Although t he proof is very strong, we still need Mr. Martin to weigh [ in] on this one way or the other.” On Septem b er 13, 2016, the c ourt entered another tem porary o rder. The p ertinent parts of the tem porary order stated as f o llows:
2. That Daniel Fountain is the biological f ather o f the mi n o r c h i ld, [ J.M.], date of birth, October

. . . 2007. Mr. Brian Martin, [ Pope]’s prior husband, m ust be served and/or allowed to d isestablish his paternity to the m inor child prior to the establishm ent of

Daniel Fountain’s paternity

.

3. That both [ Pope and Fountain] are awarded j oint legal custody of [ J .M.] with [ Pope] being awarded phy sical custody of [ J.M.].
4. [ Fountain] shall be allowed visitation . . . .
On Septem

ber 26, 2016, t he c ourt am ended the Septem ber 13, 2016 t em

porary o rder. In this

am endm ent, the court ordered the GAL t o f ile a petition to disestablish Martin’s paternity and

to contact Martin to determ ine whether he would a gree to disestablish paternity

. M artin was not—and has y et to be—added as a party to this action. ¶14. On Novem

ber 30, 2016, Pope f

iled a m otion to dism iss h er paternity action. Fountain
f iled a r esponse in objection, and o n Decem ber 28, 2016, t he court entered an o rder deny ing

n o w h e ’s– f

ro m a leg al stan d p o i n t– is th e f ath e r o f [ J.M .]

. 6Pope’s m otion to dism iss. The order also d i r e c t e d t h e G AL to f ile a petition to establish
F ountain as J.M.’s f

ather based on t he parties’ testim ony that there is DNA evid e n c e o f Fountain’s paternity

. Although Pope objected to the c ourt’s order, on February 17, 2017, the
G A L f i l e d a c om

plaint, on behalf of J.M., to establish paternity , child custody , and other relief

. 7 T his com

plaint was f

iled in the ongoing civil action between Fountain and Pope and listed P ope and Fountain as the s o l e d e f e n d a nts. The c o m

plaint d id not nam e Martin a s a party

. 8 ¶15. On May 22, 2017, t he c o u r t h e l d a n o t h e r h e aring on t he outstanding m otions. Although Martin had not been nam ed as a party to the action or served with any pleadings, he a ttended the May 22 hearing a nd provided testim ony a s a witness. Pope and Fountain also testif i ed. W hile n o o n e testif y ing a t t h e M ay 22 hearing disputed that Fountain is the biological f

ather of J.M., Martin testif ied that h e wanted to rem ain J. M

. ’ s l e gal f ather and that he had no intention to disestablish paternity

. ¶16. Nonetheless, on June 15, 2017, the court entered a judgm e nt establishing p a t e r n i t y a n d adjudicating Fountain as J.M.’s biological f a ther. 9 O n the sam e date, the court also entered

7 T h e G A L a l so f

iled a co m

p lain t to d isestab lish p atern ity an d f o r o th er relief o n F eb ru ary 2 , 2 0 1 7

. H o w ev er, th e G A L n ev e r s e rv ed th e d isestab lish m en t co m p lain t o n an y p arties o r p u rsu ed th e d isestab lish m en t co m p lain t in an y

o th er m a n n er.

8 T h e G A L l ik ew ise issu ed su m m o n ses to P o p e an d F o u n tai n b u t d i d n o t issu e a su m m o n s to M artin

.

9 In th e j u d g m en t , th e co u rt n o ted : “D N A t est(s) receiv ed i n t o ev id en ce estab lish D a n i e l F o u n t ain as th e b io lo g ical f ath er o f [ J.M

. ] ;
. . . B rian M artin h ad a v asecto m y an d th eref o re co u ld n o t h av e co n ceiv ed [ J.M

. ] ;
. . . [ an d ] M ich elle P o p e testif ied th at D an iel F o u n tain is th e b io lo g ical f ath er o f [ J.M .]

. ” 7a tem

porary order granting Fountain unsupervised visitation with J.M. every other weekend and r equiring Fountain to pay child support f or J.M., until f

urther order of the court. On July 14, 2017, Pope f

iled a notice of appeal.

DISCUSSION ¶17. On appeal, Pope contends that t he c h a n c e r y c o u r t erred in entering the judgm ent

es t a b l i s h i n g paternity a nd in e ntering the tem porary order. W e will address the j udgm ent establishing paternity , b ut we lac k j u r i sdiction t o address the t em porary order. See McDonald v
. McDonald , 8 7 6 S o
. 2 d 296, 298 ( ¶8) (Miss. 2004) (“[ A]ppellate review of

tem porary orders is im

proper.”) (quoting McDonald v. McDonald , 850 So. 2d 1 1 82, 1193 (¶46) (Miss. Ct. App. 2002)). ¶18. Pope’s p r im ary assertion regarding the judgm ent establishing paternity i s that Martin should have been joined as a party under Mississippi R

ule of Civil Procedure 19 bef

ore an adjudication of paternity was m ade, and f ailure t o j oin Martin was error. 10 The application of Rule 19 is a m atter of law, so w e apply a de novo review. W illiams v. W

illiams , 264 So. 3d 722, 725 (¶5) (Miss. 2019).

10 P o p e also g en erally asserts th at “sin ce [ M artin ] h as n o t , n o r d o e s h e i n ten d to , d isestab lish p atern ity a s th e leg a l f ath er, th e C o u rt’s en try o f a p atern ity [ j ] u d g m en t w as in erro r.” M ississip p i C o d e A n n o tated sectio n 9 3 -9 -1 0 (R ev
. 2 0 1 8 ) s ets f o rth “circu m stan ces u n d er w h ich a leg al f

ath e r m ay d isestab lish p atern i ty a n d t erm in ate a ch i ld su p p o rt o b lig atio n w h en th e leg al f ath er is n o t th e b io lo g ical f a t h e r o f t h e ch ild .” E v en assu m i n g sectio n 9 3 -9 -1 0 h as an y ap p licab ility g iv en th e reco rd b ef o re u s, s ee M iss. C o d e A n n
. § 9 3

- 9 -1 0 (1 ) (a) & (3 ), P o p e p ro v id es n o su p p o rtin g a u th o rity f o r h er assertio n th at p a tern ity o f th e leg al f

ath e r m u s t b e d i sestab lish ed b ef o re b io lo g ical p atern ity can b e estab lish ed

. A c co rd in g ly , it is w aiv ed

. S ee, e .g
. , S im m o n s v. S ta te , 8 0 5 S o
. 2 d 4 5 2 , 4 8 7 (¶9 0 ) (M iss. 2 0 0 1 ) (“F ailu re to cite relev an t a u th o rity o b v iates th e ap p e llate co u r t’s o b l ig atio n to rev iew su ch issu es.”). 8¶19. A person is a necessary party when h e “ has such a substantial interest in the suit that

no com plete, practical, a nd f

i nal judgm ent can be m ade without d irectly af f e cting h is interest

or else leaving the controversy in such condition that its f inal determ ination m ay be wholly inconsistent with equity a nd good conscience.” M ahaffey v. Alexander , 8 0 0 So. 2d 1284,
1285 (¶5) (Miss. Ct. A pp. 2001). Rule 19 addresses joinder of necessary p arties. Pursuant to Rule 19(a), assuming joinder is feasible , A person w ho is subject to the juris d iction o f the court shall be joined as a party in the action if

: (1) in h is a b s e n c e com

plete relief cannot be accorded am ong those already parties, or (2) he c laim s a n interest relating to the subject o f the action and is so s i tuated that t h e disposition of t he action in h is absence m ay ( i) as a practical m atter im p air or im

pede his ability t o p rotect that interest o r ( ii) leave any of the p e r s o n s already parties subject to a substantial risk of incurring d ouble , m ultiple, or otherwise inco n s i stent obligations by reason of his claim ed interest.
If h e has not been so joined, the court shall order t hat he be m a d e a party

. If he should join as a plaintif

f b u t ref uses to d o so, he m ay be m ade a def endant or, in a proper case, an involuntary plaintif f

. (Em phasis added). W hen joinder is not f easible, Rule 19(b) applies. 1 1

11 R u le 1 9 (b ) states:
If a p erso n as d escrib ed i n su b d i v isio n (a) h ereo f can n o t b e m ad e a p arty , th e co u rt sh all d eterm in e w h eth er in eq u ity an d g o o d co n scien ce th e actio n sh o u ld p ro ceed am o n g t h e p arties b ef o re it o r sh o u ld b e d ism issed , t h e ab sen t p erso n b ein g th u s reg a rd ed as in d isp en sab le. T h e f a cto rs to b e co n sid ered b y th e co u rt in clu d e: F irst, to w h a t ex ten t a j u d g m en t ren d e red in th e p erso n ’s ab sen ce m ig h t b e p rej u d icial to h im o r th o se alread y p arties; seco n d , th e ex ten t to w h ich , b y p ro t ectiv e p ro v isio n s in t h e j u d g m e n t, b y th e sh ap in g o f r e l ief , o r o th er m easu res, th e p rej u d ice can b e lessen ed o r av o id ed ; th ird , w h eth er a j u d g m en t ren d ered in th e p erso n ’s ab sen ce w ill b e ad eq u ate; f o u r th , w h eth er 9¶20. Here, a l t h o u g h t h e court e xpressly noted at various tim es in the p roceedings that

Martin needed to be joined in this action, it did not determ ine if i t was feasible to join Martin.
It is unclear why , despite the court’s m ultiple acknowledgm ents, the p roceedings continued without Martin. But given that the sam e c ourt e ntered Martin and P ope’s divorce decree, awarding Martin j oint legal custody of and visitation with J.M. and requiring Martin to pay child support, we presum e that the court has continued jurisdiction r egarding J.M.’s custody

. Miss. Code Ann. § 93-27-202 (Rev. 2018). Additionally , although M artin m ay no longer live
in George County , Martin appeared a s a w itness at the May 2 2, 2017 paternity hearing, suggesting his ability t o attend and participate in this a c tion’s proceedings. W e t hus continue with a Rule 19(a) analy sis.
I. Rule 19(a)(1) ¶21. As noted supra, f

or the entirety of J.M.’s l if e (arguably

until now), Martin has been considered J.M.’s legal f

ather. A nd pursuant to a George County divorce decree, M artin has joint legal custody of J.M., visitation rights, and child s u pport responsibilities. Given these rights and responsibilities, it is apparent that “in [ M artin’s] absence com plete relief

cannot be accorded am ong [ P ope and Fountain]” in this action. M.R.C.P. 19(a)(1). ¶22. Pope has asked the c ourt to “award [ her] t he sole param o unt care, c ustody and control of [ J.M.], as well a s [ e stablish] perm anent c hild support pay m ents t o be m a d e t o [ her]

. . . .” And in his counter-petition, Fountain has requested a f ull h earing on the m e r its t o determ ine
perm anent custody , visitation, and support rights a nd obligations of the parties. If Martin is

th e p lain tif

f w i ll h av e an ad e q u a t e r em ed y if th e actio n is d ism issed f o r n o n j o in d er. 1 0not added as a party to this action, the chancery court r isks conf licting orders regarding J.M. and his custody , his child support, and his accessibility f or visitation.
II. Rule 19(a)(2) ¶23. Along this sam e vei n , M a r t i n “ c l a i ms a n interest relating to the subject of th[ is] action,” nam ely , J.M. 12 And the com plete “disposition of th[ is] action in his absence m ay (i)

as a practical m atter im

pair or im pede his ability

to protect that interest or (ii) leave any of the persons alre a d y p a r t ies subject to a substantial risk of incurring d ouble, m ultiple, or otherwise inconsistent obligation s b y reason of his claim ed interest.” M.R.C.P. 19(a)(2). Pope notes that disposition of this action has the p otential to dim inish Martin’s “custodial and visitation rights” as well as dilute Martin’s “rights of inheritance.” W e agree, though we do

not know w hy P ope—who as plaintif f sought the very relief the chancery court g ranted—did

not i nclude Martin as a p a rty at t he outset or af ter any o f the m

ultiple tim e s the chancery

court instructed the parties to join him

. M oreover, com plete disposition m ay leave Pope at risk of being subject to inconsistent or contradictory obligations in regard to J.M.’s visitation with Martin and Fountain. For these reasons, we f i nd that Martin is a “necessary party ” to this action. See Mahaffey , 800 So. 3d at 1285 (¶5). ¶24. “In discussing the joinder of parties u nder Rule 19, our suprem e court has stated that the ‘f a ilure to join interested parties

. . . under M.R.C.P. 19(a) j ustif ies reversal and rem and

as a v iolation of f

undam ental due process.’” Am. Pub. F in. I nc. v. Smith , 4 5 So. 3d 307, 311 (¶9) (Miss. Ct. A pp. 2010) (quoting B d. of Educ. of Calhoun C t y
. v
. W arner , 853 So. 2d

12 M a rtin testif

ied at th e M ay

2 2 h earin g th at h e c o n sid ered J.M

. t o b e h is ch ild an d th at h e h as n o in ten tio n to v o lu n tarily d isestab lish p atern ity

. 1 11159, 1170 (¶38) (Miss. 2 0 03)). This is true e ven if , “on rem a nd, the sam e r esult m ight be

r e a c h e d.” Powell v. Evans , 113 So. 3d 1 270, 1275 (¶23) (Miss. Ct. App. 2 013); s e e a l s o Davis v. Gu a r
. B a n k & T rust Co. , 5 8 So. 3d 1233, 1238 ( ¶26) (Miss. Ct. A pp. 2011). Accordingly , we reverse the chancellor’s judgm ent establishing paterni t y a n d r em and f or f urther proceedings once Martin has been properly joined. ¶25. REVERSED AND REMANDED. BARNES, C.J., C ARLTON AND J. WILSON, P.JJ., GREENLEE, WESTBROOKS, TINDELL, McDONALD, LAWRENCE AND McCARTY, JJ., CONCUR.

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