Hayes v. Hayes, 2017-CA-01146-COA

• Citation: 281 So.3d 1002
• Decision Date: 07 May 2019
• Docket Number: NO. 2017-CA-01146-COA,2017-CA-01146-COA
• Parties: Shanna Blakley HAYES, Appellant v. Jeremy HAYES, Appellee
• Court: Court of Appeals of Mississippi

281 So.3d 1002

Shanna Blakley HAYES, Appellant

v.Jeremy HAYES, Appellee

NO. 2017-CA-01146-COA

Court of Appeals of Mississippi.

May 7, 2019

ATTORNEYS FOR APPELLANT: RONALD W. LEWIS, OXFORD, DANA LEIGH BUMGARDNER

ATTORNEYS FOR APPELLEE: SHERRY L. LOWE, LAUREL, THOMAS T. BUCHANAN, JACKSON

BEFORE BARNES, C.J., WESTBROOKS AND LAWRENCE, JJ.

WESTBROOKS, J., FOR THE COURT:

¶1. Jeremy Hayes and Shanna Blakley Hayes were divorced in 2015. Following a series of hearings regarding modification of custody and contempt, the Wayne County Chancery Court awarded Jeremy primary physical custody of his and Shanna's daughter, K.H.¹ The chancery court also found Shanna in civil and constructive criminal contempt and sentenced her to incarceration in the Wayne County Jail and to pay fines; however, the court suspended execution of the sentence on the condition that Shanna not violate its order. Shanna filed a motion to amend or correct the trial court's findings of fact and conclusions of law, which the trial court denied. Shanna appeals. After review of the record, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2. Jeremy and Shanna were married in February 2013. Their daughter, K.H., was born in August 2013. Shanna filed for a divorce on fault grounds with an alternative request for a divorce for irreconcilable differences on October 28, 2014. In November 2014, Shanna filed a motion for temporary relief. Jeremy filed a motion to determine custody in February 2015. Shanna answered in April 2015. In October 2015, the parties filed a joint motion for the court to enter a judgment of divorce on the ground of irreconcilable differences and for the court to decide certain issues. On December 2, 2015, the court entered the judgment of divorce. The final judgment of divorce indicated that Jeremy had standard visitation and that Jeremy was to pay Shanna $ 668 per month in child support. Jeremy was also responsible for K.H.'s medical costs not covered by health insurance, $ 59.50 per week for child care, and $ 6,500 for Shanna's attorney's fees. The attorney's fees were to be paid at a monthly rate of $ 150.

¶3. On December 3, 2015, Jeremy filed a motion to reconsider and requested specific findings of fact and conclusions of law. On December 14, 2015, Jeremy filed an amended motion for citation of contempt and a notice of emergency hearing. Jeremy alleged that Shanna refused some visitations and that she posted negative things about him on social media. Jeremy asked the trial court to modify primary physical custody of K.H. to him and requested that law enforcement be allowed to assist him with visitation. On December 15, 2015, the trial court entered an order allowing an officer to be present during the times Jeremy and Shanna exchanged K.H. The trial court also enjoined Shanna from making negative posts about Jeremy on her social media pages.

¶4. On January 5, 2016, Shanna filed a motion for citation of contempt and requested specific findings of fact and conclusions of law from the final judgment of divorce. Shanna alleged that Jeremy was not in compliance with his obligations for daycare payments or reimbursement of attorney's fees. As a result, Shanna requested an order for civil contempt and punitive damages. On February 2, 2016, Shanna filed her second petition for a citation of contempt, alleging that Jeremy had not paid for daycare or her attorney's fees as ordered in the final judgment of divorce. On February 18, 2016, a letter from the chancellor clarified the obligations for daycare payments and overruled Jeremy's motion filed in December 2015.

¶5. Also on February 18, 2016, Shanna filed for a preliminary injunction, alleging that Jeremy did not properly administer K.H.'s medication when she visited him. Shanna also alleged that Jeremy had been physically abusive to K.H. Shanna reported her allegations of sexual abuse to the Mississippi Department of Human Services (DHS). In the claim, she requested that K.H.'s visitation with Jeremy either cease or be restricted. She also requested that Jeremy pay her attorney's fees. Finally, Shanna alleged that Jeremy refused to communicate with her regarding K.H.

¶6. On February 23, 2016, Jeremy filed a motion to dismiss and a motion for sanctions. Jeremy requested that the trial court dismiss Shanna's motion for a preliminary injunction and her petition for contempt. In the motion for sanctions, Jeremy alleged that Shanna had filed frivolous charges against him and refused some of K.H.'s visits with him. Also on that date, the trial court entered an order granting joint legal custody to the parties and continued the other claims to an alternative date.

¶7. On February 29, 2016, Shanna filed a response and defenses to Jeremy's motion to dismiss and motion for sanctions, essentially denying all allegations. In that document, Shanna admitted that she reported Jeremy to DHS and had denied Jeremy visitation; however, she maintained that Jeremy would not communicate with her regarding K.H.

¶8. On March 1, 2016, Jeremy filed a motion for a psychological exam for Shanna, alleging that she exhibited wild and erratic behavior. On March 21, 2016, Shanna filed a motion for a psychological evaluation for Jeremy.

¶9. On April 5, 2016, Jeremy filed another motion for citation of contempt and motion to modify custody alleging that Shanna again refused visitation for K.H. to visit Jeremy. On April 14, 2016, Jeremy once again filed a complaint for citation of contempt and a motion for emergency modification of custody. In this complaint, Jeremy alleged that Shanna and her family asked him to terminate his parental rights. After a hearing, an agreed order was entered for both parties to undergo psychological evaluations.²

¶10. On June 13, 2016, Shanna filed a motion for emergency relief, alleging that Dr. Jennifer Whitcomb, a psychologist hired by Shanna, stated that K.H. might have been sexually abused by Jeremy. But, testimony at that hearing disclosed that DHS's investigation regarding similar allegations was closed due to lack of evidence.

¶11. On August 17, 2016, Jeremy filed another complaint for citation of contempt and motion for emergency modification after he alleged that Shanna left with K.H. and would not return her. Jeremy requested an order for civil and criminal contempt to be entered against Shanna and for the trial court to sentence her to serve time in jail until he made up for the visitation that he missed. Jeremy asserted that Shanna's constant refusal of visitation was a material circumstance that was adverse to K.H. As a result, Jeremy maintains that this material circumstance would allow the trial court to modify custody of K.H. to him—removing the child from Shanna's primary custody.

¶12. On September 12, 2016, Shanna filed her answer to Jeremy's complaint requesting the appointment of a guardian ad litem (GAL) and other relief. On October 11, 2016, the trial court appointed Dana Bumgardner as the GAL. In the GAL's initial report issued in 2016, she noted that Shanna made several reports of abuse to DHS. These reports caused K.H. to undergo multiple physical exams and interviews. The GAL stated that Shanna disregarded the effect that those exams and interviews would have on K.H. Additionally, Shanna took pictures of K.H.'s private parts, which the GAL reported directly influenced K.H.'s behavior with Jeremy. The GAL believed that Shanna not only failed to foster K.H. and Jeremy's relationship, but she also attempted to directly and negatively impact it. Ultimately, after her investigation, the GAL recommended that the trial court find there had been a material change in circumstances in Shanna's home that adversely affected K.H. Accordingly, she recommended that the trial court find, pursuant to an Albright³ analysis, physical custody be modified to Jeremy and that Shanna should enjoy standard visitation with K.H., while sharing joint legal custody. The GAL also recommended counseling and parenting classes for Jeremy and Shanna so that they could learn to effectively communicate.

¶13. On February 16, 2017, the GAL filed a motion requesting that Jeremy take K.H. to a counselor of his choosing and to deposit funds to the GAL. On February 23, 2017, Jeremy and Shanna agreed to proceed to a "trial" set for April 28, 2017, in Wayne County to litigate the outstanding issues before the court.

¶14. On March 1, 2017, the trial court granted the GAL's motion for relief and ordered Jeremy to take K.H. to counseling. On March 2, 2017, Shanna filed a motion for reconsideration regarding Jeremy's taking K.H. to counseling and failure of the GAL to communicate with her regarding her motion filed in February.

¶15. At a hearing on April 4, 2017, Jeremy testified that on March 12, 2017, during a scheduled visitation exchange, Shanna hit him on the chin and he pushed her away. Jeremy then alleged that Shanna "came at him." Shanna filed a police report with the Wayne County Sheriff's Office. Shanna testified and reported that Jeremy grabbed her hair and attempted to push her back into her car. Shanna also alleged that Jeremy "violently slung K.H. to the ground." Shanna stated that she filed an order of protection following her scuffle with Jeremy. The trial court ultimately denied Shanna's request for a domestic protection order finding that Shanna was the initial aggressor after she admitted that she slapped Jeremy on the chin first.

¶16. On April 10, 2017, Shanna filed a motion for removal of the GAL and for the appointment of a new GAL. But the trial court denied Shanna's motion at a hearing on April 18, 2017.

¶17. On June 22, 2017, the trial court entered its findings of facts and conclusions of law regarding custody modification.⁴ In that order, the trial court found that there had been a material change in circumstances that adversely affected K.H. and awarded Jeremy primary physical custody of K.H., with Shanna having standard visitation rights. The trial court also ordered Shanna to begin paying Jeremy the equivalent...