Garrison v. Courtney

• Decision Date: 29 September 2020
• Docket Number: NO. 2019-CA-00503-COA,2019-CA-00503-COA
• Citation: 304 So.3d 1129
• Parties: Erick GARRISON, Appellant v. Carrie COURTNEY, Appellee
• Court: Mississippi Court of Appeals

304 So.3d 1129

Erick GARRISON, Appellant

v.Carrie COURTNEY, Appellee

NO. 2019-CA-00503-COA

Court of Appeals of Mississippi.

September 29, 2020

ATTORNEY FOR APPELLANT: NATALIA VIAN PORSCHE, D'Iberville

ATTORNEY FOR APPELLEE: ALBEN NORRIS HOPKINS JR., Gulfport

BEFORE CARLTON, P.J., WESTBROOKS AND LAWRENCE, JJ.

CARLTON, P.J., FOR THE COURT:

¶1. Erick Garrison appeals from the judgment of divorce granted in favor of Carrie Courtney. He asserts that the chancery court erred by granting Carrie a divorce on the ground of habitual drunkenness and by awarding custody of the parties’ minor children to Carrie. Erick also asserts that the chancery court erred when it held him in contempt for non-payment of child support under the chancery court's temporary order issued after the first day of trial and for awarding Carrie attorney's fees relating to that motion. Erick asserts that the motion for contempt was not properly noticed or heard, and he further asserts that it was improperly granted on the merits. Finally, Erick appeals the chancery court's decision to partially deny his post-trial motion to alter or amend the judgment. Finding no error, we affirm.

PROCEDURAL HISTORY AND STATEMENT OF FACTS

I. Pre-trial History

¶2. On October 14, 2016, Carrie filed her complaint for divorce against Erick on the ground of habitual drunkenness, among other grounds. Carrie sought "paramount" physical custody and control of the parties’ minor children, Edward,¹ a boy born in March 2002; Leo, a boy born in May 2009; and Hunter, a boy born in October 2010. She also sought, among other things, child support, a restraining order of at least 500 feet against Erick, and an award of attorney's fees and costs.

¶3. Erick filed his answer and counter-complaint. In his counter-complaint, Erick sought a divorce from Carrie on the ground of adultery, among other grounds, and requested "primary" physical custody and control of the parties’ minor children and child support. In his answer, Erick denied that Carrie was entitled to a divorce on any of the grounds listed in her complaint but admitted that she was entitled to a divorce based on irreconcilable differences. Erick asserted condonation, among other affirmative defenses.

¶4. The record reflects that Carrie had a daughter from a previous relationship, Elizabeth,² who was born in October 2000. At all relevant times, Elizabeth lived with one or both of the parties. Erick asserted a claim of in loco parentis status over Elizabeth in his counter-complaint. However, the chancery court specifically found in its judgment of divorce that Erick did not pursue the in loco parentis claim at trial. Erick did not challenge this determination on appeal and specifically acknowledged in his appellant's brief that he "did not proceed with his claim for custody of [Elizabeth]" at trial.

¶5. Carrie filed her answer to Erick's counter-complaint, generally denying his allegations and grounds for divorce.

¶6. On April 21, 2017, the parties’ divorce matter was set to be heard beginning September 5, 2017. On September 6, 2017, the chancellor heard the testimonies of Erick, whom Carrie called as an adverse witness, and Elizabeth (Carrie's daughter and Erick's stepdaughter who was sixteen years old at the time). After hearing their testimonies, the chancery court entered a temporary order on September 11, granting Carrie temporary legal and physical custody of the minor children subject to Erick's right to visitation. Carrie was also granted temporary exclusive use and possession of the marital home. Erick was ordered to pay child support for the minor boys in the amount of $250 for the month of September and $500 per month beginning October 1, 2017. Both parties were enjoined from consuming alcohol in the presence of their minor children. The chancery court set forth the basis for its temporary ruling as follows:

The Court, after one day of trial, has concerns for the safety and security for the three minor children currently living with the father. One of the children has been diagnosed with Type 1 Diabetes

and is required to have frequent doses of insulin injections up to six (6) times a day. These injections vary depending on a formula and blood levels of the minor child. The Court is required to look out for the best interest of the children at all times. The Court has heard the testimony of the father and sixteen (16) year old step-daughter. The Court has instructed the parties to reschedule the remainder of trial at the earliest available dates as both counsel of record were unable to carry over this trial during a term setting.

Trial was set to continue beginning January 3, 2018.

¶7. On December 28, 2017, Carrie's counsel filed a motion for contempt, alleging that Erick violated the chancery court's September 11, 2017 temporary order because he failed to pay child support and allegedly harassed Carrie. Carrie also sought attorney's fees in that motion. The certificate of service attached to this motion indicates that Erick was personally served with the motion on December 28, 2017. The record indicates that on December 27 (one day before the motion was filed) a Rule 81 summons³ was issued for the motion, summoning "[Erick] to appear and defend against said motion for citation and contempt at 9:00 a.m. on the 3rd day of January 2018."

¶8. After four more days of trial taking place on January 3, 4, 5, and 8, 2018, and after hearing closing arguments on March 6, 2018, the chancery court entered its judgment of divorce (judgment) on November 30, 2018.⁴ Relevant to this appeal, the chancery court granted Carrie a divorce from Erick on the ground of habitual drunkenness, and the court awarded joint legal custody to the parties and physical custody of the parties’ minor children to Carrie, with Erick to have "liberal visitation" as delineated in the judgment. The chancery court also awarded Carrie child support and ordered Erick to "provide major medical health coverage, vision, prescription, and dental insurance [for the children] ... [with each party] responsible for one-half ... of the cost of deductibles and co-payments, out-of-pocket expenses[,] and medication expenses related to the children." Additionally, the chancery court found that Erick was in contempt for non-payment of child support under the September 11, 2017 temporary order for part of September 2017 and for the months of October through December 2017. The chancery court ordered that the amount in arrears was to be charged against Erick's equitable distribution of the marital assets. The chancery court further ordered Erick to pay Carrie's attorney's fees in the amount of $4,000 relating to her motion for contempt.

¶9. Erick filed a motion to amend or alter the judgment pursuant to Mississippi Rule of Civil Procedure 59(e), asserting that the chancery court lacked jurisdiction to hear Carrie's motion for contempt due to a faulty Rule 81 summons and improper notice and that he was denied a fair opportunity to present his defenses because the motion was not properly heard. Erik also sought to set aside the award of attorney's fees relating to that motion. Additionally, Erick sought to reopen the chancery court's judgment on the child support issue to allow him to present "evidence concerning the loss of [his] employer-provided major medical insurance ... [that] was unavailable at the time of trial."

¶10. On February 19, 2019, the chancery court entered an order correcting what the court recognized was a clerical error concerning the attorney's fees awarded relating to Carrie's motion for contempt. The chancery court reduced Carrie's award of attorney's fees to $1,000. The chancery court denied the remaining issues in Erick's motion. Erick appealed, asserting that the chancery court erred by (1) granting Carrie a divorce on the ground of habitual drunkenness; (2) awarding custody of the parties’ minor children to Carrie; (3) holding Erick in contempt for non-payment of child support and awarding Carrie attorney's fees relating to her motion for contempt when the motion was not properly noticed or heard; (4) granting Carrie's motion for contempt and request for attorney's fees on the merits; and (5) partially denying Erick's Rule 59(e) motion.

¶11. We now provide an overview of the evidence and testimony presented at trial relating to the issues on appeal, with further details to be discussed as these issues are addressed below.

II. The Trial

¶12. In support of her case, Carrie called Erick as an adverse witness and Elizabeth (Carrie's daughter from a prior relationship), who both testified on September 6, 2017. Carrie testified on January 4, 2018. In support of his case, Erick called the parties’ eldest son, Edward, who was fifteen at the time of trial; Erick's father, John Garrison; Johnny Holliman, who performed drywall work for Erick and Courtney over two or three weeks in 2016; and Katie Randall, the 2016-2017 soccer coach for the parties’ youngest son, Hunter. Erick also testified.

¶13. At the time of trial, Carrie was thirty-nine and Erick was forty-six. They were first in a relationship from 2002 to 2004. They eventually reunited in 2007 and were married on April 7, 2010. As noted above, the parties had three sons together, Edward, Leo, and Hunter, who were fifteen, eight, and seven, respectively, at the time of trial. Carrie also has a daughter by a prior relationship, Elizabeth (Erick's stepdaughter), who lived with the family. Elizabeth was sixteen when she testified on the first day of trial in September 2017. The record reflects that Leo suffers from bulimic tendencies and counseling was recommended. The record also reflects that Hunter was diagnosed with Type I diabetes

in March 2017. He requires six to eight insulin shots per day.

¶14. Carrie testified about Erick's drinking habit and his behavior when he had been drinking. She testified that the parties attended couple's counseling in 2008-2009 (before they were married) and that Erick's drinking was one of...