Margie Edna (Galloway) Mallett Wilson v. Byron Keith Mallett
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2009-CA-01607-COA
MARGIE EDNA (GALLOWAY) MALLETT
WILSON
APPELLANT
v.
BYRON KEITH MALLETT
DATE OF JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEY FOR APPELLANT:
ATTORNEYS FOR APPELLEE:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
APPELLEE
10/06/2009
HON. VICKI B. COBB
DESOTO COUNTY CHANCERY COURT
H.R. GARNER
L. ANNE JACKSON HODUM
STEVEN GLEN ROBERTS
CIVIL - CUSTODY
HABEAS CORPUS ISSUED AND
DELIVERED CHILD TO FATHER
DISMISSED AS MOOT: 12/07/2010
BEFORE MYERS, P.J., ISHEE AND ROBERTS, JJ.
MYERS, P.J., FOR THE COURT:
¶1.
Byron Mallett and Margie Wilson are the natural parents of Byron Mallet Jr. (Byron),
who was eight years old at the time of the controversy. On July 2, 2008, Mallett and Wilson
entered into an agreed order modifying custody. Among other things, it provided that Mallett
would have primary physical custody of Byron and that Wilson would have physical custody
for eight weeks during the summer.
¶2.
Shortly after the agreed custody order was entered, a dispute arose over which parent
would have the child for the rest of the summer. The agreed custody order did not
specifically address the summer of 2008; it stated only that Wilson would have custody of
the child for eight weeks between the week after school ended in the spring and the week
before school resumed in the fall. Mallett argued that Wilson’s eight weeks for 2008 would
end on July 10, since Wilson had already had custody of Byron for most of that summer.
Wilson took the position that her summer visitation under the new order began on the day
the agreed order was entered.
¶3.
On July 8, Wilson filed a motion to set aside the agreed custody order or, in the
alternative, to grant relief from the order under Rule 60 of the Mississippi Rules of Civil
Procedure. She also asked for an emergency hearing, which the chancellor apparently
offered to grant; but Wilson declined the offer due to scheduling difficulties. Wilson then
immediately filed an appeal from the agreed order. This Court ultimately dismissed that
appeal for want of appellate jurisdiction, finding that Wilson’s pending motion to set the
order aside had rendered the appeal interlocutory. Wilson v. Mallett, 28 So. 3d 669, 670 (¶3)
(Miss. Ct. App. 2009), cert. denied, 27 So. 3d 404 (Miss. 2010).
¶4.
On July 21, 2008, while the appeal on the agreed custody order was pending, Mallett
filed a petition for a writ of habeas corpus. Mallett alleged that, under the agreed order, he
was entitled to custody of Byron for the remainder of the summer and that Wilson had
wrongfully refused to return the child to him. The chancellor granted the habeas corpus
petition, the writ was issued, and the Sheriff of DeSoto County removed the child from
Wilson’s possession.
¶5.
On August 22, 2008, the chancellor held a hearing on Wilson’s motion to set aside the
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writ of habeas corpus. Among other things, the parties represented to the chancellor that,
notwithstanding the dispute over custody for the summer, they were now cooperating under
the agreed order, and the child had been transferred to and from Wilson’s custody for
visitation without incident. The chancery court took the challenge to the issuance of the writ
under advisement. On October 14, 2009, the chancellor entered an order finding that the writ
had been properly issued. Wilson appeals from that judgment, contending that the writ of
habeas corpus should not have been issued and suffered from various technical defects. We
find that the controversy in this case has expired, and we dismiss this appeal as moot.
DISCUSSION
¶6.
“Cases in which an actual controversy existed at trial but the controversy has expired
at the time of review, become moot. We have held that the review procedure should not be
allowed for the purpose of settling abstract or academic questions, and that we have no power
to issue advisory opinions.” J.E.W. v. T.G.S., 935 So. 2d 954, 959 (¶14) (Miss. 2006)
(quoting Monaghan v. Blue Bell, Inc., 393 So. 2d 466, 466-67 (Miss. 1980)). “This principal
of mootness applies in child custody cases as well” Id. at (¶15).
¶7.
In Campbell v. Lovgren, 171 Miss. 385, 157 So. 901 (1934), the chancellor awarded
custody of a child to the mother, for two months, after which she was to return the child to
the father. The father appealed, urging that this was error, but the supreme court found the
issue moot because the two-month period had long since ended. The supreme court reasoned
that “the period of time during which the custody of the child was changed by the decree
appealed from having expired, the questions presented by the record have become purely
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academic, and therefore no actual controversy is presented for the decision of this court, from
which it follows that the appeal should be dismissed.” Id. at 901 (citations omitted). This
rationale has also been applied to appellate review of habeas corpus proceedings. See J.E.W.,
935 So. 2d at 960 (¶16); Mandel v. Perez, 227 P.2d 385, 385 (Ariz. 1951).
¶8.
In the present case, it is undisputed that the writ was issued to enforce Mallett’s right
to custody of the child between July 10, 2008, and approximately August 7, 2008. At a
subsequent hearing, the parties represented to the chancellor that the passage of time had
effectively settled this dispute and that they had resumed cooperating under the agreed
custody order. Since her prior appeal was dismissed, it appears that Wilson has abandoned
her challenge to the agreed order itself.
¶9.
In this appeal, the only relief Wilson requests is that this Court set aside the habeas
corpus proceeding. Since the writ has been fully executed and the underlying dispute
abrogated by the passage of time, we find that Wilson’s challenge to the writ presents only
academic questions. We therefore dismiss this appeal as moot.
¶10. THIS APPEAL IS DISMISSED AS MOOT. ALL COSTS OF THIS APPEAL
ARE ASSESSED TO THE APPELLANT.
KING, C.J., LEE, P.J., IRVING, GRIFFIS, BARNES, ISHEE, ROBERTS,
CARLTON AND MAXWELL, JJ., CONCUR.
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