Garner v. Garner, NO. 2018-CA-00962-SCT

CourtUnited States State Supreme Court of Mississippi
Writing for the CourtGRIFFIS, JUSTICE, FOR THE COURT
Citation283 So.3d 120
Parties April Quen GARNER (Jaime Garcia) v. Judi L. GARNER, Ronald Clyde Fox and David Smith
Docket NumberNO. 2018-CA-00962-SCT
Decision Date03 October 2019

283 So.3d 120

April Quen GARNER (Jaime Garcia)
v.
Judi L. GARNER, Ronald Clyde Fox and David Smith

NO. 2018-CA-00962-SCT

Supreme Court of Mississippi.

October 3, 2019


ATTORNEY FOR APPELLANT: JERRY WESLEY HISAW, Southaven

ATTORNEY FOR APPELLEES: GORDON C. SHAW, JR.

EN BANC.

GRIFFIS, JUSTICE, FOR THE COURT:

283 So.3d 127

¶1. April Garner appeals the chancellor's custody modification awarding custody of her minor child to the child's uncle, the award of grandparent visitation to the child's step-grandfather, a finding of contempt, and the assessment of various fees and costs. Because the chancellor properly modified custody and found April in contempt but lacked the authority to award grandparent visitation to a step-grandparent, we affirm in part and reverse and render in part. We reverse and remand in part because the chancellor erred, in part, in the assessment of fees and costs.

FACTS AND PROCEDURAL HISTORY

¶2. Andrew1 was born in August 2009 to April Garner.2 On November 8, 2010, when Andrew was fifteen months old, April voluntarily relinquished physical custody of Andrew to her brother Jason. At that time, Jason was dating and living with David Smith. Jason and David later married on September 20, 2012.

¶3. April was granted supervised visitation with Andrew, by agreement, on October 1, 2012. In January 2013, Andrew began treatment with Dr. Peter Zinkus, a clinical psychologist specializing in behavioral- and emotional-development disorders in children. Dr. Zinkus diagnosed Andrew with separation-anxiety disorder due to the "alternating visitation."

¶4. On December 20, 2013, by agreed order, April regained legal and physical custody of Andrew. The order stated that the parties "recognize[d] that in order for [Andrew] to successfully handle his separation anxiety he must maintain a relationship with David and David must have a secure and regular place in the child's life." The agreed order provided David extensive visitation, which April acknowledged was "similar to what a biological parent would get."

¶5. At some point in 2013, April began a relationship with Pablo Garcia. Their daughter Allison3 was born on November 5, 2014.

¶6. In November 2014, April withheld visitation with Andrew from David. As a result, David moved to enforce the December 20, 2013 agreed order. In March 2015, the chancellor upheld the agreed order and visitation continued between David and Andrew.

¶7. In September 2015, Jason died from complications of HIV.4

¶8. On September 19, 2016, David filed an "amended petition for emergency custody and to cite [April] for contempt."5 In the petition, David alleged that based on

283 So.3d 128

various events and admissions, April was "unfit to care for [Andrew]." He further alleged that April unilaterally had discontinued Andrew's counseling sessions with Dr. Zinkus, in violation of the December 20, 2013 agreed order. April's mother and stepfather, Judi Garner and Ron Fox, filed a similar petition for custody and joined David's petition. Shortly thereafter, on September 21, 2016, April and Pablo were married.

¶9. The chancellor issued a temporary restraining order on September 22, 2016, and granted temporary custody of Andrew to David. April later filed an answer to David, Judi, and Ron's petitions. She further moved for a modification of the December 20, 2013 agreed order and sought to terminate David's visitation rights with Andrew.

¶10. Based on the allegations asserted in David's amended petition, the chancellor appointed a guardian ad litem (GAL) on September 29, 2016, to investigate the allegations and to make a recommendation to the court. The chancellor also ordered the parties to submit to a drug test.

¶11. Based on the GAL's recommendation, the chancellor entered a temporary order that allowed alternate weekly visitation between April and David, with grandparent visitation to Judi and Ron during the weeks Andrew was with David. On October 13, 2016, April tested positive for cocaine. The GAL later moved for supervision of April's visitation based on her failed drug test and the GAL's belief that April was coaching Andrew. April's visitation with Andrew was supervised until February 3, 2017.

¶12. In the fall of 2017, April reported or assisted in reporting two separate allegations of child sexual abuse against David, one on September 11, 2017, and the other on November 14, 2017. Both reports involved similar allegations of bathing, specifically, that David inappropriately touched Andrew while giving him a bath. As a result, Andrew was placed in foster care pending further investigation of the abuse allegations.

¶13. Both allegations were separately investigated by the Mississippi Department of Child Protection Services (CPS). The November investigation included a forensic interview with Andrew. At the completion of the investigations, both reports of sexual abuse were found to be unsubstantiated. Specifically, CPS concluded that "there were no inappropriate actions on behalf of David."

¶14. A trial in this matter was held on February 22 and 23, 2018. On April 4, 2018, the chancellor issued an opinion in which he found that April had entered into a course of conduct since the entry of the December 20, 2013 agreed order that constituted a material change in circumstances adverse to Andrew's best interests and that made April "mentally and morally" unfit to have custody of Andrew. Following an Albright analysis,6 the chancellor awarded "full care, custody[,] and control" of Andrew to David and visitation to April. The chancellor further awarded grandparent visitation to Judi and Ron.

¶15. Additionally, the chancellor found that April was in contempt of the December 20, 2013 agreed order due to her unilateral withdrawal of Andrew from Dr. Zinkus's care. The chancellor assessed attorneys' fees and costs against April and denied April's request for attorneys' fees.

¶16. An order reflecting the chancellor's rulings was filed April 16, 2018. An amended final order was filed July 6, 2018, that specifically addressed the amount of fees and costs assessed against April.

283 So.3d 129

¶17. April moved for reconsideration, which was denied. April now appeals and argues the chancellor erred by: (1) awarding third-party custody to David, (2) awarding grandparent visitation to Ron, (3) holding her in contempt, (4) assessing fees and costs against her, and (5) failing to award her attorneys' fees. Judi and Ron do not contest the award of custody to David. Instead, they join David's arguments on appeal.

STANDARD OF REVIEW

¶18. "The standard of review in child custody cases is quite limited." Johnson v. Gray , 859 So. 2d 1006, 1012 (Miss. 2003). "A chancellor must be manifestly wrong, clearly erroneous, or apply an erroneous legal standard in order for this Court to reverse." Id. (citing Mabus v. Mabus , 847 So. 2d 815, 818 (Miss. 2003) ). "[F]indings of fact made by a chancellor may not be set aside or disturbed upon appeal if they are supported by substantial, credible evidence." Id. (internal quotation marks omitted) (quoting Marascalco v. Marascalco , 445 So. 2d 1380, 1382 (Miss. 1984) ).

DISCUSSION

I. Whether the chancellor erred by awarding third-party custody to David .

¶19. April argues the chancellor erroneously modified and awarded third-party custody to David. "In order for child custody to be modified, a noncustodial party must prove (1) there has been a substantial change in the circumstances affecting the child; (2) the change adversely affects the child[ ]'s welfare; and (3) a change in custody is in the best interest of the child." Id. (citing Bredemeier v. Jackson , 689 So. 2d 770, 775 (Miss. 1997) ). " ‘Above all, in "modification cases, as in original awards of custody, we never depart from our polestar consideration: the best interest and welfare of the child." ’ " Riley v. Doerner , 677 So. 2d 740, 744 (Miss. 1996) (quoting Ash v. Ash , 622 So. 2d 1264, 1266 (Miss. 1993) ).

¶20. Additionally, because this case involves a custody dispute between a natural parent and a third party, it is important to remember the well-settled presumption regarding the natural-parent. "The law recognizes that parents are the natural guardians of their children, and ‘it is presumed that it is in the best interest of a child to remain with the natural parent as opposed to a third party.’ " Davis v. Vaughn , 126 So. 3d 33, 37 (Miss. 2013) (quoting In re Dissolution of Marriage of Leverock and Hamby , 23 So. 3d 424, 429 (Miss. 2009) ). However, the natural-parent presumption may be rebutted by clear and convincing evidence that: "(1) the parent has abandoned the child; (2) the parent has deserted the child; (3) the parent's conduct is so immoral as to be detrimental to the child; or (4) the parent is unfit, mentally or otherwise, to have custody." Id. (internal quotation marks omitted) (quoting Smith v. Smith , 97 So. 3d 43, 46 (Miss. 2012) ). "If the natural-parent presumption is successfully rebutted, the court may then proceed to determine whether an award of custody to the challenging party will serve the...

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16 practice notes
  • Stephens v. Stephens, 2019-CA-01421-COA
    • United States
    • Court of Appeals of Mississippi
    • August 24, 2021
    ...is not able to pay, noncompliance was not willful, the violated order was ambiguous, or performance was impossible. Garner v. Garner , 283 So. 3d 120, 141 (¶93) (Miss. 2019). However, if a defendant raises an "inability to pay as a defense, the burden is on him to show this with particulari......
  • Stephens v. Stephens, 2019-CA-01421-COA
    • United States
    • Court of Appeals of Mississippi
    • August 24, 2021
    ...is not able to pay, noncompliance was not willful, the violated order was ambiguous, or performance was impossible. Garner v. Garner, 283 So.3d 120, 141 (¶93) (Miss. 2019). However, if a defendant raises an "inability to pay as a defense, the burden is on him to show this with particularity......
  • Summers v. Gros, 2019-CA-01550-SCT
    • United States
    • United States State Supreme Court of Mississippi
    • June 3, 2021
    ...presumed that it is in the best interest of a child to remain with the natural parent as opposed to a third party.’ " Garner v. Garner , 283 So. 3d 120, 129 (Miss. 2019) (internal quotation marks omitted) (quoting Davis v. Vaughn , 126 So. 3d 33, 37 (Miss. 2013) ).¶17. The chancellor initia......
  • Summers v. Gros, NO. 2019-CA-01550-SCT
    • United States
    • Mississippi Supreme Court
    • June 3, 2021
    ...is presumed that it is in the best interest of a child to remain with the natural parent as opposed to a third party.'" Garner v. Garner, 283 So. 3d 120, 129 (Miss. 2019) (internal quotation marks omitted) (quoting Davis v. Vaughn, 126 So. 3d 33, 37 (Miss. 2013)).Page 8 ¶17. The chancellor ......
  • Request a trial to view additional results
16 cases
  • Stephens v. Stephens, 2019-CA-01421-COA
    • United States
    • Court of Appeals of Mississippi
    • August 24, 2021
    ...is not able to pay, noncompliance was not willful, the violated order was ambiguous, or performance was impossible. Garner v. Garner , 283 So. 3d 120, 141 (¶93) (Miss. 2019). However, if a defendant raises an "inability to pay as a defense, the burden is on him to show this with particulari......
  • Stephens v. Stephens, 2019-CA-01421-COA
    • United States
    • Court of Appeals of Mississippi
    • August 24, 2021
    ...is not able to pay, noncompliance was not willful, the violated order was ambiguous, or performance was impossible. Garner v. Garner, 283 So.3d 120, 141 (¶93) (Miss. 2019). However, if a defendant raises an "inability to pay as a defense, the burden is on him to show this with particularity......
  • Summers v. Gros, 2019-CA-01550-SCT
    • United States
    • United States State Supreme Court of Mississippi
    • June 3, 2021
    ...presumed that it is in the best interest of a child to remain with the natural parent as opposed to a third party.’ " Garner v. Garner , 283 So. 3d 120, 129 (Miss. 2019) (internal quotation marks omitted) (quoting Davis v. Vaughn , 126 So. 3d 33, 37 (Miss. 2013) ).¶17. The chancellor initia......
  • Summers v. Gros, NO. 2019-CA-01550-SCT
    • United States
    • Mississippi Supreme Court
    • June 3, 2021
    ...is presumed that it is in the best interest of a child to remain with the natural parent as opposed to a third party.'" Garner v. Garner, 283 So. 3d 120, 129 (Miss. 2019) (internal quotation marks omitted) (quoting Davis v. Vaughn, 126 So. 3d 33, 37 (Miss. 2013)).Page 8 ¶17. The chancellor ......
  • Request a trial to view additional results

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