Blagodirova v. Schrock

• Decision Date: 01 November 2022
• Docket Number: 2020-CA-01162-COA
• Parties: EKATERINA V. BLAGODIROVA APPELLANT v. JOSE C. SCHROCK APPELLEE
• Court: Mississippi Court of Appeals

EKATERINA V. BLAGODIROVA APPELLANT v. JOSE C. SCHROCK APPELLEE

No. 2020-CA-01162-COA

Court of Appeals of Mississippi

November 1, 2022

DATE OF JUDGMENT: 09/14/2020

MONROE COUNTY CHANCERY COURT, TRIAL JUDGE: HON. JACQUELINE ESTES MASK

ATTORNEY FOR APPELLANT: JAK McGEE SMITH

ATTORNEYS FOR APPELLEE: JASON D. HERRING MICHAEL SPENCER CHAPMAN

BEFORE WILSON, P.J., WESTBROOKS AND EMFINGER, JJ.

WESTBROOKS, J.

¶1. Ekaterina Blagodirova appeals from the chancery court's child-custody modification order that granted Jose Schrock sole physical custody of J.R.^[1] and Blagodirova visitation rights. After review, we affirm in part and reverse and render in part.

FACTS AND PROCEDURAL HISTORY

¶2. Blagodirova, who was a Russian immigrant, and Schrock, who was from Paraguay, married on November 21, 2006, in Las Vegas, Nevada. Later, they moved to Tupelo, Mississippi, and Blagodirova gave birth to their only son, J.R., in October 2007. The couple later filed a joint complaint for divorce due to irreconcilable differences on August 6, 2013, in Monroe County, Mississippi (where Schrock resided). Both parties signed a Separation and Property Settlement Agreement (the "Agreement") and agreed to certain child custody terms relating to their son J.R.^[2] The parties agreed to joint custody of J.R., with Blagodirova having sole physical custody and Schrock having visitation.^[3] Schrock also agreed to a monthly $500 child support payment. The chancery court issued its final decree of divorce with the Agreement attached on October 17, 2013.

¶3. After her divorce from Schrock, Blagodirova remained in Tupelo. She later began a romantic relationship with Andres Maldonado De La Rosa (Maldonado), J.R.'s soccer coach and an undocumented immigrant from Mexico. Maldonado and Blagodirova married on August 27, 2014, and Maldonado moved into Blagodirova's home around that time. Although Blagodirova and Maldonado divorced on April 2, 2015, he continued to live in Blagodirova's home. Blagodirova testified that she only divorced Maldonado because an immigration attorney^[4] told her that a divorce was in her and Maldonado's best interests. The chancery court, however determined that no reason existed for the divorce. In any event, Maldonado and Blagodirova would later remarry on September 18, 2018.

I. Petition For Child Custody Modification

¶4. One night, Maldonado was driving in the car with Blagodirova and J.R. when they were stopped at a roadblock, and Maldonado was subsequently arrested for not having a driver's license. After his arrest, he was deported to Hidalgo, Mexico. During that time, Blagodirova went to visit him. Sometime later, Maldonado re-entered the United States without citizenship and once again began residing with Blagodirova and J.R. ¶5. On June 4, 2018, Schrock filed a complaint requesting modification of the Agreement, requesting the court to grant him sole physical custody of J.R. and terminate his child support obligations because there had been "substantial and material changes in circumstances adverse to the best interests of [J.R.] . . ." since the divorce, without alleging any specific material change or adverse effect. Blagodirova filed a combined answer and counter-complaint. In her counter-complaint, she requested an increase in Schrock's child support payments, arguing that since the divorce, J.R.'s expenses and Schrock's income have "substantially and materially increased."

¶6. Discovery ensued. In Schrock's answers to interrogatories, he "claim[ed]" that Blagodirova or Maldonado had abused and neglected J.R.^[5] Accordingly, the court appointed Thomas M. Brahan as a guardian ad litem (GAL) for the limited purpose of investigating Schrock's "allegations of abuse or neglect." The court then granted leave for Blagodirova to amend her counter-complaint. In her amended counter-complaint, Blagodirova additionally requested an award of attorney's fees pursuant to Mississippi Code Annotated section 93-5-23 (Rev. 2021), were the GAL to find that Schrock's "allegations of abuse or neglect" without foundation or, in other words, frivolous. Blagodirova and Schrock's child-custody modification hearing was held on February 13, 2020.

II. Child Custody Hearing A. Jose Schrock

¶7. During the hearing, Blagodirova's attorney questioned Schrock about the material change in circumstances he allegedly suggested in his answers to interrogatories, along with his reasons for allegedly being the more fit parent. While the interrogatories and answers to the interrogatories have not been made a part of the record on appeal, the GAL outlined what the GAL referred to as Schrock's "allegations." In summary, the "allegations" about Blagodirova were as follows: (1) "encouraged [J.R.] to lie to [Schrock] about [Maldonado's] deportation;" (2) on multiple occasions whooped J.R. with a belt and yelled at him very loudly; (3) raises puppies that J.R. sometimes cleans and feeds; (4) has J.R. fixing his own lunch when Maldonado is not there; (5) let J.R. have an accident on his motorcycle; (6) absent when Maldonado hit J.R. in the chest at Walmart and rubbed his hand around J.R.'s face; and (7) that Maldonado was an undocumented Mexican with an illegal driver's license. Schrock testified that he filed his complaint soon after Maldonado "was deported" and "start[ed] hitting [his] son." Schrock also testified that he did not have knowledge of Maldonado's citizenship status until the deportation.^[6]

B. Ekaterina Blagodirova

¶8. Blagodirova testified that she had been working as a registered nurse at North Mississippi Medical Center for a year and a half. She worked fourteen days of each month from 7:00 p.m. to 7:30 a.m. Blagodirova further testified she knew Maldonado was an undocumented immigrant, but she believed the only consequence would be that he was deported back to Mexico. Blagodirova also acknowledged that while she was aware that Maldonado obtained an Illinois driver's license, she did not know that it was illegal. She further testified that she did tell J.R. not to tell Schrock about Maldonado's arrest, but only because she explained to J.R. "that's called privacy." She testified she did not tell J.R. to lie.

C. Andres Maldonado De La Rosa

¶9. Maldonado testified that he has been in the United States since around 1998. He did not marry Blagodirova until 2014 and from that point on lived with her and J.R. Maldonado testified that he would make J.R. breakfast and lunch and take him to school in the mornings and to his extracurricular activities. Maldonado testified that after remarrying Blagodirova, he obtained an illegal Illinois driver's license. He further stated that Blagodirova knew that he was obtaining the driver's license so that he could drive J.R. around without being deported. ¶10. Maldonado denied calling J.R. names. He also denied ever hitting J.R. or causing his nose to bleed. The GAL summarized the incident:

According to [J.R.], he and Andres were at Wal-Mart. They had been grocery shopping. [J.R.] wanted to shop for something as a gift for his mother. Andres would not let him. [J.R.] became very upset and threw a fit. [J.R.] says that Andres hit him in the chest and then rubbed his hand around on [J.R.]'s face, and his nose began to bleed. Andres states that he did not 'hit' [J.R.] in the chest, but pushed him back in his seat to snap his seatbelt. Andres says he was trying to rub the top of [J.R.]'s head to calm him down and take it easy, [J.R.] was still mad and bucking around.

. . . .

[J.R.] stated that Andres did apologize to him. [J.R.]'s mother says she checked [J.R.] out, and he was not hurt. She states that [J.R.] gets occasional nose bleeds. This is a single incident. At its worst, Andres over-reached or over-corrected [J.R.] when [J.R.] pitched a fit when he didn't get his way.

D. J.R.

¶11. The court found that J.R., at twelve years old, was competent to testify. J.R. testified that he received good grades (all As and one B) in school and generally was not absent from school. J.R. also admitted that his mother and Maldonado are the ones who attend his school functions. He further testified that he played soccer until he was eight years old, and that he began boxing later on. He practiced boxing six days of the week and attended boxing competitions, with Maldonado taking him to boxing practice and Blagodirova taking him to his competitions.

¶12. J.R. denied ever being hit by Maldonado with a belt. He also stated that a "long time ago" he felt as though Maldonado did not care about him when Maldonado called him "fat" or "stupid." But J.R. also provided conflicting testimony about the time that he was in the Walmart parking lot with Maldonado and his nose began to bleed. Initially, J.R. testified that Maldonado did not hit him but instead put his hand on his head. During examination by the court, however, J.R. testified that Maldonado hit him in the chest and "rubbed his hand in [his] face." J.R. also provided conflicting testimony about how Maldonado's arrest made him feel. He first testified that he did not know how he felt when Maldonado was arrested at the roadblock, but he later said he felt "scared."

¶13. J.R. testified that overall, Blagodirova has been a good mother, but he preferred to spend more time with Schrock. He also testified that while Blagodirova did hit him with a belt, it was a "long time ago." He admitted that two years prior, Blagodirova threw "some candy and a toy" at him but that he could not remember if she was playing around. He also testified that he did not like it when Blagodirova cursed at him.

E. Guardian Ad Litem Thomas Brahan

¶14. After a thorough and proper investigation, prior to trial the GAL submitted his preliminary report, stating he did not find any evidence...