Ellis v. Ellis

• Decision Date: 18 March 2003
• Docket Number: No. 2001-CA-00713-COA.,2001-CA-00713-COA.
• Citation: 840 So.2d 806
• Parties: Nancy ELLIS, Appellant v. John ELLIS, Appellee.
• Court: Mississippi Court of Appeals

840 So.2d 806

Nancy ELLIS, Appellant v. John ELLIS, Appellee.

No. 2001-CA-00713-COA.

Court of Appeals of Mississippi.

March 18, 2003.

T. Swayze Alford, Oxford, for appellant.

Will R. Ford, New Albany, for appellee.

EN BANC.

CHANDLER, J., for the Court:

¶ 1. Nancy and John Ellis were divorced in 1998. The court granted physical custody of their one child to Nancy with legal custody shared between the parents. The court also established a visitation schedule. The following year, both parties petitioned for contempt and for modification of custody. The chancellor found Nancy in contempt and ordered her to pay attorney's fees and to comply with the revised visitation schedule. Feeling aggrieved by the chancellor's ruling, Nancy filed this appeal asserting the following five issues:

I. DID THE CHANCELLOR ERR IN FINDING NANCY IN CONTEMPT OF THE COURT'S VISITATION ORDER?

II. DID THE CHANCELLOR ERR IN NOT RESTRICTING JOHN'S VISITATION RIGHTS?

III. DID THE CHANCELLOR ERR IN RESTRICTING NANCY'S CONTACT WITH THE CHILD DURING THE CHILD'S VISITATION WITH JOHN?

IV. DID THE CHANCELLOR ERR IN HOLDING THAT NANCY COULD NOT SCHEDULE ANY EVENTS FOR THE CHILD DURING JOHN'S VISITATION?

V. DID THE CHANCELLOR ERR IN REFUSING TO MODIFY THE SUMMER VISITATION SCHEDULE DUE TO ITS CONFLICTING LANGUAGE?

Upon review of the record and legal precedent, we affirm as to Issues I, II, III, and IV, and remand in part as to Issue V.

FACTS

¶ 2. On October 21, 1998, John and Nancy Ellis were granted a divorce in the Union County Chancery Court on the grounds of irreconcilable differences. The judgment granted the parties joint legal custody and Nancy primary physical custody of their only child. John received certain visitation privileges, including five weeks during the summer, every other weekend and holidays on alternating years.

¶ 3. On October 25, 1999, Nancy filed a complaint for contempt stating that John had failed to pay certain bills. Nancy also moved for a modification in the visitation order. Two days later, John filed a petition for contempt asking the court to hold Nancy in contempt for her intentional and repeated interference with his visitation rights. John claimed he had missed twenty days of visitation due to Nancy's interference. He moved the court to allow him to make up all missed visits and asked for attorney's fees. He further sought physical custody of the minor child.

¶ 4. John testified to several occasions where Nancy had failed to properly comply with the visitation order by failing to provide the child for visitation at the proper time or not at all. Based on this evidence, the court entered an emergency order on October 26, 1999, ordering Nancy to provide the child for weekend visitation. As required by the order, Officer Bill Long testified that he went to Nancy's home to obtain the child. Long stated that Nancy was uncooperative by refusing to disclose the child's location.

¶ 5. John also reported several incidences during his visitation time with his child that Nancy physically or telephonically interfered with the visit. He claimed that these interruptions created tension and caused the child to become upset. He testified to one occasion when visiting with the child, Nancy approached and whispered something in the child's ear. John stated that the child instantly began crying and exclaimed that she wanted to go home with her mother. Dr. Sam Pace, John's brother-in-law, stated he witnessed an incident during the Christmas holidays when Nancy telephoned the child. Pace testified that prior to the call the child was affectionate and happy; however, immediately after the call she became upset and unresponsive. He testified that this was a regular occurrence during John's visitation with his daughter.

¶ 6. John also complained of Nancy's refusal to include him in the decision making for their daughter. He testified that without his knowledge or consent Nancy removed their daughter from private school and placed her in home school. He also indicated that Nancy would refuse to disclose where the child was attending summer camp.

¶ 7. Nancy admitted that she had withheld some of John's visitation but argued that she was justified in her action. Nancy testified to the stress and trauma the child was experiencing due to the visitations. She stated that the child would beg Nancy to not force her to go and that she would cry herself to sleep at night prior to going to visit her father.

¶ 8. She presented testimony from a psychologist, Dr. Roger Bennett, who after several counseling sessions with the child concluded that she showed signs of trauma and stress. He said her condition was directly attributed to the visitations with John. He based his opinion on the child's reaction to talking about her father. On several occasions the child said she did not want to go visit John. During Dr. Bennett's sessions, he engaged the child in sentence completions which yielded the following results:

Most of all, I want not to go with my dad.

I hate I don't hate my dad but I don't really like him.

I wish I could stop going with my dad.

¶ 9. John also presented testimony from a psychologist, Dr. Joe Morris, who after assessing the child concluded that she suffered from depression and recommended she attend counseling. He said the depression was not created by the visitations with her father, but arose from the conflicts between the parents and the lack of access she had with her father. He also stated that in his opinion the child suffers from parental alienation syndrome.¹ He based his opinion upon John's reports that the child shows a disregard for John while in the presence of her mother. He also stated that the child's drawings of her family in which she excludes her father from the picture is a classic sign of the syndrome.

¶ 10. Nancy testified that she was justified in refusing visitation because of her concerns about the conditions to which the child was apparently exposed to during John's care. Nancy said the child would come home with reports of John making her sleep in the same bed with him, leaving the door open while she was taking a bath, using the bathroom while she was bathing, and pulling off the road and threatening her. In one of the child's counseling sessions she indicated in a sentence completion exercise that she hated to take baths.

¶ 11. John testified that on a couple of occasions while visiting his sister, he and his daughter slept in one bed due to the lack of available beds. However, he stated that he never made her sleep in the same bed with him at his home because she had her own bedroom. John also testified that he did make her leave the bathroom door open while she was taking a bath because the bathroom has no ventilation, and that on occasion he has come into the bathroom only to grab a hairbrush or other paraphernalia. Despite Nancy's complaints of mistreatment, both psychologists found no signs of abuse by John.

¶ 12. Nancy testified that she felt justified in withholding visitation considering the child's strong animosity toward her father. She contributed much of the child's reluctance to go to visit John to the fact that John would not take their daughter to many of the child's activities. The child also indicated in one of her counseling sessions with Dr. Bennett that her father would not take her to cheerleading practices.

¶ 13. John agreed that his daughter showed signs of resentment toward him, but he attributed the behavior to Nancy's turning the child against him. He also admitted to not taking the child to some of her activities. He justified this by stating that he thought his daughter was involved in too many activities. He also said that many times he had already made plans prior to learning of his daughter's scheduled events.

¶ 14. The chancellor, after analyzing numerous exhibits and hearing fifteen witnesses which created more than a thousand pages of transcript, rendered his decision on April 3, 2001. The chancellor held that John was not in contempt of court for failure to pay bills, concluding that John was not provided with the bills until after Nancy filed her complaint. The chancellor denied John's request for a change of physical custody, and denied Nancy's request for modification of the visitation order.

¶ 15. The chancellor found Nancy in contempt of court for her failure to abide by prior orders with respect to John's visitation rights. The court entered a revised visitation schedule which allows John to make up twenty days of missed visitation during the summer. The court ordered Nancy to avoid scheduling any events or causing any events to be scheduled for the minor child during John's visitation periods. He also held that Nancy was not to interfere with the visitation rights of John by telephoning or personally contacting the child during John's weekend visitations. Nancy is allowed personal and telephone contact with the child during the extended visitation only if absolutely necessary. The court ordered Nancy to exchange information concerning the health, education and welfare of the child. Finally, the court awarded John attorney's fees in the amount of $4,500. From the judgment, Nancy has perfected her appeal.

LAW AND ANALYSIS

I. DID THE CHANCELLOR ERR IN FINDING NANCY IN CONTEMPT OF THE COURT'S VISITATION ORDER?

¶ 16. "Contempt matters are committed to the substantial discretion of the trial court which, by institutional circumstance and both temporal and visual proximity, is infinitely more competent to decide the matter than we are." Varner v. Varner, 666 So.2d 493, 496 (Miss.1995). If the "contemnor has willfully and deliberately ignored the order of the court," then the finding of contempt is proper. Goodson v. Goodson, 816 So.2d, 420, 422(¶ 3) (Miss.Ct.App.2002). "This Court will not reverse a contempt citation where the chancellor's findings are supported by substantial credible evidence." Id.

¶ 17. The chancellor found Nancy to...