Ferguson v. Lewis, No. 2007-CA-02237-COA (Miss. App. 5/5/2009), 2007-CA-02237-COA
| Decision Date | 05 May 2009 |
| Docket Number | No. 2007-CA-02237-COA,2007-CA-02237-COA |
| Parties | PAMELA L. FERGUSON, APPELLANT v. JUANITA H. LEWIS, APPELLEE. |
| Court | Mississippi Court of Appeals |
GRIFFIS, J., FOR THE COURT:
1.¶ Pamela L. Ferguson ("Pamela") appeals the decision of the Hinds County Chancery Court which granted her mother, Juanita H. Lewis, visitation rights with Pamela's fifteen-year-old daughter, Kathryn.1
Feeling aggrieved by this decision, Pamela appeals and asserts that: (1) the chancellor's decision granting visitation rights to Lewis is against the overwhelming weight of the evidence; (2) the chancellor abused his discretion in awarding Lewis overnight visitation rights and by disregarding Kathryn's wishes; and (3) the chancellor erred in concluding that Pamela had unreasonably denied Lewis visitation with Kathryn. Finding no error, we affirm.
FACTS
2.¶ Kathryn was born on May 20, 1993, and resides with her natural mother, Pamela, in Madison, Mississippi.2 On August 29, 2007, Lewis filed a petition with the chancery court for grandparents' visitation rights pursuant to Mississippi Code Annotated section 93-16-3(2) (Rev. 2004). Thereafter, a hearing was held on the matter.
3.¶ Lewis testified that she and Kathryn had a close relationship when Kathryn was younger and that Kathryn and Pamela even lived with her for a short while following the death of Kathryn's father. Lewis stated that Kathryn often spent the night at her house and that Pamela brought Kathryn to visit her approximately once a week.
4.¶ According to Lewis, she purchased a home for Pamela and Kathryn in August 2006. The home was located across the street from Lewis's home. Lewis recalled that when Pamela and Kathryn first moved across the street, her relationship with Kathryn was good and that Kathryn visited her daily. Further, Lewis testified that she often sent food to Pamela and Kathryn. Lewis stated that her relationship with Pamela changed shortly after Christmas 2006. Lewis went to Pamela's house to retrieve her dishes that had accumulated at Pamela's house, but when she arrived, Pamela would not allow her to enter. Pamela instructed Kathryn to "get back." Lewis testified that Pamela threatened to call the police if she did not leave. Lewis recalled that from that point forward, Pamela cut off all communication with her.
5.¶ Lewis also testified about an incident that occurred when she approached Kathryn at the mailbox outside of Kathryn's home. Lewis apologized to Kathryn for not seeing her, and she told Kathryn that Pamela would not allow them to see each other because Pamela suffers from a mental illness.3 According to Lewis, Kathryn was not surprised upon hearing that Pamela was mentally ill. Sometime after this encounter, Pamela and Kathryn decided to move. Lewis stated that Pamela refused to tell her where they were moving, so she found out from one of the movers.
6.¶ Pamela testified that she does not suffer from bipolar disorder and that she never told Lewis that she does. Pamela stated that she and Lewis have a history of conflict and that things escalated after Christmas 2006. Pamela said that shortly before Christmas 2006, when she was ill with bronchitis, Lewis called her five or six times in one day. Pamela stated that during one conversation, Lewis accused her of being mentally ill and stated that she never wanted to speak to her again. Pamela testified that she then informed Lewis that she would no longer allow her to control her life. Pamela also testified that she refused to allow Lewis to have contact with Kathryn from that point forward. Pamela further testified that 4 (Footnote added).
7.¶ Pamela also testified that Kathryn has been on an emotional roller coaster ever since the mailbox encounter with Lewis, even though at one point Kathryn and Lewis had a close relationship. She testified that she does not feel that it is in Kathryn's best interest to have visitation with Lewis because of the emotional toll that contact with Lewis has on Kathryn.
8.¶ According to Kathryn, Pamela and Lewis have a history of conflict. Kathryn explained that on one particular occasion when she and Pamela lived across the street from Lewis, they refused to allow Lewis to enter their home and Lewis attempted to force her way in. After she failed to gain entry, she threatened to call the police. Kathryn testified that she told Lewis that day that she did not want anything else to do with her.
9.¶ Kathryn also testified about the mailbox incident. According to Kathryn, while she was checking the mail, Lewis approached and informed her that Pamela was mentally ill. Kathryn recalled Lewis asking her if she wanted Lewis to take Pamela to a doctor. Kathryn testified that she told Lewis that she did not.
10.¶ Kathryn was also examined substantially by the chancellor. During this examination, Kathryn stated that she does not feel comfortable staying overnight at her grandmother's home. She stated that this is partly because of the incident when Lewis attempted to force her way into their home.
11.¶ Following the hearing, the chancellor, against Kathryn's wishes,5 awarded Lewis visitation, including overnight visitation. It is from this decision that Pamela now appeals.
STANDARD OF REVIEW
12.¶ We employ a limited standard of review in reviewing a chancellor's decision. Stacy v. Ross, 798 So. 2d 1275, 1278 (¶13) (Miss. 2001). Therefore, we will not reverse a chancellor's findings unless the record indicates that "the chancellor abused his discretion, was manifestly wrong, or made a finding which was clearly erroneous." Id. (citing Bank of Miss. v. Hollingsworth, 609 So. 2d 422, 424 (Miss. 1992)). However, an appellate court reviews questions of law de novo. Id. (citing Zeman v. Stanford, 789 So. 2d 798, 802 (¶12) (Miss. 2001)).
ANALYSIS
Whether there is substantial evidence to support the chancellor's decision granting Lewis visitation rights with Kathryn.
13.¶ Pamela raises three issues that are interrelated, as each of them challenge the appropriateness of the chancellor's grant of visitation rights to Lewis. Therefore, we recast the issues as one: whether there is substantial evidence to support the chancellor's decision granting Lewis visitation rights with Kathryn.6
14.¶ The Mississippi Legislature has determined that a chancery court may "grant visitation rights with a minor child . . . to the grandparents of such minor child[.]" Miss. Code Ann. § 93-16-1 (Supp. 2008). Mississippi Code Annotated section 93-16-3(2) and (3) (Rev. 2004) provides:
(2) Any grandparent who is not authorized to petition for visitation rights pursuant to subsection (1) of this section may petition the chancery court and seek visitation rights with his or her grandchild, and the court may grant visitation rights to the grandparent, provided the court finds:
(a) That the grandparent of the child had established a viable relationship with the child and the parent or custodian of the child unreasonably denied the grandparent visitation rights with the child; and
(b) That visitation rights of the grandparent with the child would be in the best interests of the child.
(3) For purposes of subsection (3) of this section, the term" viable relationship" means a relationship in which the grandparents or either of them have voluntarily and in good faith supported the child financially in whole or in part for a period of not less than six (6) months before filing any petition for visitation rights with the child or the grandparents have had frequent visitation including occasional overnight visitation with said child for a period of not less than one (1) year.
Mississippi Code Annotated section 93-16-5 (Supp. 2008) provides, in pertinent part, that:
. . . the court may, in its discretion, if it finds that such visitation rights would be in the best interest of the child, grant to a grandparent reasonable visitation rights with the child. Whenever visitation rights are granted to a grandparent, the court may issue such orders as shall be necessary to enforce such rights and may modify or terminate such visitation rights for cause at any time.
(Emphasis added).
15.¶ According to section 93-16-5, the chancellor has discretion to award a grandparent visitation rights. Here, the chancellor did just that. The chancellor heard testimony, considered all the evidence offered, evaluated the demeanor or credibility of the witnesses, and then decided that Lewis should be given visitation rights.
16.¶ Pamela argues that the chancellor did not conduct a proper analysis of the factors set out by the Mississippi Supreme Court in Martin v. Coop, 693 So. 2d 912, 916 (Miss. 1997). In Martin, the supreme court announced factors that should be considered by chancellors when determining whether to grant grandparents' visitation rights:
1. The amount of disruption that extensive visitation will have on the child's life. This includes disruption of school activities, summer activities, as well as any disruption that might take place between the natural parent and the child as a result of the child being away from home for extensive lengths of time.
2. The suitability of the grandparents' home with respect to the amount of supervision received by the child.
3. The age of the child.
4. The age, and physical and mental health of the grandparents.
5. The emotional ties between the grandparents and the grandchild.
6. The moral fitness of the grandparents.
7. The distance of the grandparents' home from the child's home.
8. Any undermining of the parent's...
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