In re E.C.P.

• Citation: 918 So.2d 809
• Decision Date: 28 June 2005
• Docket Number: No. 2003-CA-01745-COA.,No. 2003-CA-02614-COA.,2003-CA-01745-COA.,2003-CA-02614-COA.
• Parties: IN RE E.C.P., A MINOR. D.A.P., Appellant v. C.A.P.R., Appellee.
• Court: Court of Appeals of Mississippi

918 So.2d 809

IN RE E.C.P., A MINOR.

D.A.P., Appellant v. C.A.P.R., Appellee.

No. 2003-CA-01745-COA.

No. 2003-CA-02614-COA.

Court of Appeals of Mississippi.

June 28, 2005.

Rehearing Denied January 17, 2006.

COPYRIGHT MATERIAL OMITTED

Lawrence Primeaux, Meridian, attorney for appellant in No. 2003-CA-01745-COA.

Henry Palmer, attorney for appellant in No. 2003-CA-02614-COA.

Michael David Rhodes, Mark A. Chinn, Lee Ann Self Turner, Beth Morgan, Jackson, attorneys for appellee in No. 2003-CA-01745-COA.

Michael David Rhodes, Mark A. Chinn, Jackson, attorneys for appellee in No. 2003-CA-02614-COA.

Before KING, C.J., IRVING and GRIFFIS, JJ.

GRIFFIS, J., for the Court.

¶ 1. This case deals with the modification of child custody, contempt and the award of attorney's fees. This case is unusual because the minor child, identified as E.C.P., had an attorney to file a petition for modification and to represent her throughout the hearing and appeal of this matter. E.C.P.'s attorney, Lawrence Primeaux, filed pleadings on E.C.P.'s behalf and participated in the hearing by examining witnesses and offering evidence. We find it necessary to protect the privacy and confidentiality of the matters discussed in this opinion. We will refer to the minor child as E.C.P., her natural mother as "Mother," and her natural father as "Father."

¶ 2. Father and E.C.P. appeal the decision of the Chancery Court of Lauderdale County. On appeal, Father argues that: (1) the chancellor erred in holding him in contempt; (2) the chancellor erred in denying his motion for modification of custody; (3) the chancellor erred in awarding $35,000 in attorney's fees to Mother; and (4) the chancellor erred in failing to hold Mother in contempt. E.C.P. argues that the chancellor erred in denying her motion for modification and erred in enjoining her attorney from communicating with her regarding the final judgment.

Procedural History

¶ 3. Father and Mother were married on December 19, 1980. They were divorced in June of 1999. They had three children. At the time of the hearing, A.D.P. (a daughter) was twenty-one and attending college in another state, E.C.P. (a daughter) was fourteen, and R.R.P. (a son) was twelve.

¶ 4. In the divorce, Father and Mother were granted joint legal custody of all three children. Mother was granted primary physical custody of all three children. In April of 2000, they executed an agreed judgment, and Father was granted sole physical custody of A.D.P.

¶ 5. In June of 2002, Mother, along with E.C.P. and R.R.P., moved from Meridian, Mississippi to Atlanta, Georgia. Father, along with A.D.P., remained in Meridian, Mississippi. The details of the move and the facts relevant to this appeal will be further developed below.

¶ 6. On May 22, 2002, prior to the move, Father filed a motion for modification. He alleged that a material change of circumstances had occurred which adversely affected the minor children, E.C.P. and R.R.P. The motion claimed that the move to Atlanta would negatively affect his visitation, his obligation to provide health insurance and automobile liability insurance, among other allegations.

¶ 7. The motion for modification was set for hearing on June 27, 2002. However, Mother filed a motion for continuance requesting that the matter be reset for August 20, 2002.

¶ 8. On July 29, 2002, Mother filed her response along with a counter-motion for contempt. Mother alleged that Father had violated the provision of the property settlement agreement entitled "Fostering Healthy Relationships," stating that Father routinely failed to cooperate with Mother to advance the children's best interests and attempted to influence the children to live with him.

¶ 9. On August 12, 2002, Father filed his response to the contempt motion and stated that Mother influenced, harassed, begged, and pleaded with the children to agree to move with her to Atlanta. Father further alleged that Mother encouraged the children to deceive him in order to prevent him from having visitation.

¶ 10. On August 22, 2002, the chancellor entered an agreed order setting the hearing for September 10, 2002. On August 30, 2002, the chancellor entered an agreed order resetting the hearing and modifying visitation. The order modified Father's visitation with the children, addressed transportation of the children for visitation, and specified certain dates for Father to have visitation. The parties also agreed to participate in family counseling and to schedule the matter for review or trial in January of 2003, with all issues raised by either party not resolved by the agreement to be protected and raised at the final hearing.

¶ 11. On December 4, 2002, Father amended his motion for modification. He asserted that E.C.P. and R.R.P. were both twelve years of age and expressed a desire to live with Father. Father had previously been awarded sole physical custody of A.D.P. and now requested sole physical custody of E.C.P. and R.R.P. or, in the alternative, that Mother be solely responsible for transportation of the children for visitation with Father. On December 10, 2002, Mother filed her response and a counter-motion for contempt, alleging that Father was in contempt of court and was not entitled to seek modification.

¶ 12. On December 12, 2002, Father filed a motion for temporary relief and requested that the chancellor grant him temporary custody of E.C.P. and R.R.P. On December 23, 2002, the chancellor entered an agreed order setting the hearing for February 19, 20, and 21, 2003.

¶ 13. On January 6, 2003, Lawrence Primeaux, as attorney for and next friend of E.C.P., filed a petition for change of custody. The petition alleged that a material change in circumstances had occurred which adversely affected E.C.P. The motion included allegations of physical conflicts and conditions in Mother's home, E.C.P.'s poor performance in school, E.C.P.'s expulsion from school, and criminal charges filed against E.C.P. The petition included a handwritten statement by E.C.P., in which E.C.P. stated her preference to live with Father and that she refused to return to Mother's custody following Christmas visitation with Father.

¶ 14. Also, on January 6, 2003, Mother filed a motion for contempt that asked the court to hold Father in contempt for refusing to return E.C.P. following his Christmas visitation. Father filed his answer and joinder on January 7, 2003, joining E.C.P.'s petition and supporting her request to remain in his custody. On January 8, 2003, Mother filed an amended motion for contempt and emergency relief for issuance of writ of habeas corpus or other appropriate relief. On January 14, 2003, Father filed his response.

¶ 15. On January 24, 2003, Mother filed a motion to disqualify Lawrence Primeaux as attorney and next friend of E.C.P.

¶ 16. A hearing was held before the Honorable Sarah Springer, Lauderdale County Chancellor, on February 19, 20, and 21, 2003. At the end of the day on February 21, the chancellor continued the hearing to June 10, 11 and 12, 2003, and she issued a bench opinion that required E.C.P. to return with her Mother to Atlanta.

¶ 17. On March 4, 2003, Mother filed her answer to E.C.P.'s petition for change of custody, wherein she denied that there was a material change in circumstances adversely affecting E.C.P. and requested that E.C.P.'s petition be denied.

¶ 18. The hearing was concluded on June 10, 11, and 12, 2003. On July 9, 2003, the chancellor issued a memorandum opinion. On November 6, 2003, the chancellor issued her ruling on the award of attorney's fees. In essence, the chancellor denied the requests to modify custody, found Father in contempt, and ordered Father to pay Mother $35,000 in attorney's fees. The chancellor also enjoined Mr. Primeaux, as E.C.P.'s attorney, from discussing with her the outcome of the final judgment.

¶ 19. Both Father and E.C.P. have appealed. The cases were consolidated on appeal.

¶ 20. Subsequent to the appeal, the chancellor entered an agreed judgment, on February 22, 2005, that removed the previous injunction on Mr. Primeaux and allowed him to discuss with E.C.P. the present state of litigation.

¶ 21. On February 25, 2005, Mother filed a motion to dismiss E.C.P.'s appellate brief. Attached to the motion is an undated letter written by E.C.P, which states the following:

To Whom It May Concern:

Please let it be know [sic] that I no longer want to live with my father. It is my choice to live in Atlanta with my mother until I graduate from high school. I withdraw from the custody trial.

Also, I do not want to be forced to visit my father every other weekend. The trip takes too much time out of my schedule, and I'm not able to participate in the activities that I want to. Once a month, over holidays and the summer is often enough.

I love both of my parents, and want to have a good relationship with both of them. I do not want to be in the middle.

¶ 22. On March 2, 2005, Mr. Primeaux, as attorney for and next friend of E.C.P., filed a response to the motion to dismiss, along with a motion to appoint a guardian ad litem.

¶ 23. On February 28, 2005, Father filed a verified complaint for relief, pursuant to Mississippi Rule of Civil Procedure 65(b), wherein he requested that the chancellor enter a temporary order finding that E.C.P. should be delivered to a facility capable of meeting her necessary physical and mental health needs. Also, on February 28, 2005, Mr. Primeaux filed a motion for appointment of guardian ad litem.

¶ 24. A hearing was held on March 7, 2005, where E.C.P. was placed in an intensive in-patient treatment program and ordered to remain there for at least thirty days. We have no information of the outcome of this treatment.

Facts Relevant to Appeal

¶ 25. Following the divorce in 1999, the children lived with Mother in Meridian. The record indicates that both E.C.P. and R.R.P. were happy living in Meridian. They continued to receive good grades at school. Fat...