222 So.3d 255 (Miss. 2017), 2014-CT-00040-SCT, Smith v. Martin
|Citation:||222 So.3d 255|
|Opinion Judge:||KITCHENS, JUSTICE|
|Party Name:||BRANDON SMITH AND KIMBERLY WOLFE SMITH v. MILTON MARTIN AND GENEVA MARTIN|
|Attorney:||TRIAL COURT ATTORNEYS: GEORGE S. WHITTEN, JR., TOM P. CALHOUN, III, JAMES H. POWELL, III. FOR APPELLANTS: GEORGE S. WHITTEN, JR., TOM P. CALHOUN, III. FOR APPELLEES: JAMES H. POWELL, III, SABRINA D. HOWELL.|
|Judge Panel:||WALLER, C.J., DICKINSON AND RANDOLPH, P.JJ., KING, COLEMAN, MAXWELL, BEAM AND CHAMBERLIN, JJ., CONCUR. WALLER, C.J., DICKINSON AND RANDOLPH, P.JJ., KING, COLEMAN, MAXWELL, BEAM AND CHAMBERLIN, JJ., CONCUR.|
|Case Date:||April 20, 2017|
|Court:||Supreme Court of Mississippi|
Milton and Geneva Martin sought grandparent visitation with their two grandsons after they were denied visitation by Kimberly and Brandon Smith, the children’s biological mother and adoptive father. Marty Martin, the children’s father and the Martins’ son, was deceased. The Chancery Court granted grandparent visitation to the Martins, the Smiths appealed, and the case was assigned to the... (see full summary)
DATE OF JUDGMENT: 05/16/2013.
YAZOO COUNTY CHANCERY COURT, HON. JANACE H. GOREE, TRIAL JUDGE.
TRIAL COURT ATTORNEYS: GEORGE S. WHITTEN, JR., TOM P. CALHOUN, III, JAMES H. POWELL, III.
FOR APPELLANTS: GEORGE S. WHITTEN, JR., TOM P. CALHOUN, III.
FOR APPELLEES: JAMES H. POWELL, III, SABRINA D. HOWELL.
WALLER, C.J., DICKINSON AND RANDOLPH, P.JJ., KING, COLEMAN, MAXWELL, BEAM AND CHAMBERLIN, JJ., CONCUR.
ON WRIT OF CERTIORARI
[¶1] Milton and Geneva Martin sought grandparent visitation with their two grandsons after they were denied visitation by Kimberly and Brandon Smith, the children's biological mother and adoptive father. Marty Martin, the children's father and the Martins' son, is deceased. The Chancery Court of Yazoo County granted grandparent visitation to the Martins, the Smiths appealed, and the case was assigned to the Mississippi Court of Appeals, which affirmed. We granted the Smiths' petition for a writ of certiorari. We affirm the judgment of the Mississippi Court of Appeals and the judgment of the Chancery Court of Yazoo County.
FACTS AND PROCEDURAL HISTORY
[¶2] The following facts are taken, verbatim, from the decision of the Mississippi Court of Appeals: Kimberly and Marty Martin married in 1996 and divorced in 2003. The couple had two minor children. The couple's first son, Cliff,1 was born in 2001. Their second son, Hank, was born in 2004 after the entry of the divorce decree. Kimberly received physical custody of the two children, and Marty received visitation supervised by his parents, the Martins.
On February 8, 2008, Marty committed suicide. His body was discovered at his home on the Martins' property while the two children were present for their visitation with him. Marty's mother, Geneva, testified that the children never saw their father's body but viewed the emergency personnel who responded to the situation. Following Marty's death, Kimberly allowed the Martins to continue visitation with the children as they had prior to Marty's death. The Martins' visitation included weekend visits, overnight visits, and a week of visitation around Christmas. At one point, Kimberly was hospitalized after she suffered a nervous breakdown. During this time, the Martins provided full-time care for at least one of Kimberly's children while Kimberly recovered.
On May 17, 2008, Kimberly married Brandon [Smith]. In 2010, Brandon adopted Kimberly's children. Following an incident on January 2, 2011, Kimberly and Brandon discontinued the Martins' visitation with the two minor children. Geneva and Kimberly both testified about the incident on January 2, 2011. The women both testified that the two children were visiting the Martins when Hank became ill. Geneva and Kimberly arranged to meet so that Hank could return home. Kimberly decided
Page 257 that Cliff should return home at the same time.
Geneva testified that, upon learning that he had to go home early, Cliff grew upset and began to cry. Geneva further testified that, upon arriving at the exchange location, she instructed the children to get inside Kimberly's car while she spoke to Kimberly. Geneva told Kimberly that Cliff had accused Brandon of the following: being mean to Cliff, telling Cliff he was overweight and needed Jenny Craig, and pulling Cliff's hair and arms until they hurt.
At this point in the story, the two women's accounts of events differed. According to Kimberly, during the conversation, Geneva would sob hysterically, compose herself, and then continue sobbing. Kimberly testified that Cliff, who witnessed the women's conversation from inside Kimberly's car, jumped from Kimberly's car, ran to Geneva's car, and locked himself inside. Kimberly further testified that, as he ran toward Geneva's car, Cliff yelled, " You were right, Grandmother. My life would be better if I just lived with you and went to school at Carroll Academy."
Geneva, however, disputed Kimberly's version of events. According to Geneva's testimony, she and Kimberly both remained composed during the conversation. Geneva admitted that, when Kimberly raised her voice at one point during the conversation, Cliff exited Kimberly's car, hugged Geneva, and then ran to Geneva's car. Geneva testified, though, that Cliff never yelled anything as he ran to her car and that he never locked himself inside her car.
On redirect, Kimberly testified that Cliff remained upset the entire drive home after the events on January 2, 2011. Even after arriving home, Kimberly stated that Cliff remained inconsolable. During her redirect, Kimberly testified as follows:
[Cliff] was hysterically telling me that I had lied to him, that his grandmother had told him I had lied to him his whole life; that I had divorced his daddy for no good reason, taken him away from [Marty]; [that Marty] got sadder and sadder, sicker and sicker until he died. That Brandon would never be his daddy, Brandon didn't love him; that Grandmother said [Brandon] would never love him because he wasn't [Brandon's] real child, [the adoption] was just a piece of paper; [Brandon] had no right to discipline him. He kept on and on telling me that I had lied to him, I had lied to him his whole life about this divorce. He told Brandon his grandmother said she would hire an attorney and sue us to have his name changed back to Martin.
Because Cliff remained inconsolable and refused to believe anything they told him, the Smiths asked other family members to explain to Cliff the kind of man his father, Marty, had been and to explain why Kimberly had divorced Marty. The Smiths testified that they were reluctant to take this course of action but believed it was the only way to help Cliff calm down. During a proffer, Kimberly testified that she, Brandon, her two older sons, her mother, and her aunt all spoke to Cliff. The family members explained to Cliff that Marty had experienced an ongoing drug problem; Marty had beaten Kimberly; and Kimberly had divorced Marty because she was afraid for her safety and Cliff's safety. During her direct examination, Kimberly testified that Cliff eventually calmed down after speaking to the other family members. However, because she and Brandon remained concerned, they
Page 258 made an appointment for a psychologist to evaluate Cliff and Hank.
Kimberly further testified that she ended the Martins' visitation with the children due in part to the events on January 2, 2011. Kimberly testified that she and Brandon also ended the visitation because they had observed a change in the children's behavior following their visits with the Martins. According to Kimberly, the children acted more aggressively and disrespectfully after visiting the Martins. Both Kimberly and Brandon testified that Cliff even attempted to shoot Brandon with a BB gun in July 2010. Due to the cumulative effect of these incidents, the Smiths decided it was in the children's best interests to deny the Martins further visitation.
On August 3, 2011, the Martins filed a petition for grandparent visitation pursuant to Mississippi Code Annotated section 93-16-3(2) (Rev. 2013). On August 9, 2011, the Martins filed a motion for temporary visitation. Following a hearing on the Martins' motion for temporary visitation, the chancellor entered an order granting temporary visitation. The chancellor's order granted the Martins telephone visitation up to two times a week between 5:30...
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