Johnson v. Gray, 2002-CA-01526-SCT.

Decision Date20 November 2003
Docket NumberNo. 2002-CA-01526-SCT.,2002-CA-01526-SCT.
Citation859 So.2d 1006
PartiesJulie Ann Gray JOHNSON v. Michael E. GRAY.
CourtMississippi Supreme Court

Stephen L. Beach, III, Jackson, attorney for appellant.

Bentley E. Conner, Canton, attorney for appellee.

Before McRAE, P.J., EASLEY and CARLSON, JJ.

McRAE, Presiding Justice, for the Court.

¶ 1. In this child custody modification case, a mother appeals from the chancellor's judgment changing custody of her daughter to her ex-husband. Finding no manifest error in the chancellor's decision and no evidence of partiality by the chancellor, we affirm.

FACTS AND PROCEEDINGS BELOW

¶ 2. Julie Ann Gray ("Julie") and Michael E. Gray ("Michael") were married on July 24, 1998. Their marriage produced one child, Hailey Ann Gray ("Hailey"), who was born September 8, 1998. Julie and Michael separated sometime between May and July 1999. On May 19, 2000, Michael and Julie were divorced based on irreconcilable differences. Julie was found to be a fit and proper parent at that time and was awarded custody of Hailey, with Michael having liberal visitation rights.

¶ 3. On October 8, 2001, Michael filed a motion to modify the divorce decree and to have a temporary restraining order placed on Julie. He also filed a motion for emergency custody relief. On October 9, 2001, an emergency hearing was held at which Michael and several of Julie's family members testified that they felt Hailey was in danger due to Julie's increased consumption of alcohol. The chancellor granted a temporary restraining order and awarded Michael temporary custody of Hailey until further order of the court. Julie was allowed supervised visitation with Hailey through prearranged meetings with Keith Johnson ("Keith"), Julie's fiancé.

¶ 4. At trial an abundance of evidence was presented concerning Julie's fitness as a parent. The first incident of concern was an automobile accident Julie had in the summer of 1999. She wrecked and almost totaled her Ford Explorer in a one vehicle accident when she drove through a Road Closed sign. Julie admits that alcohol was involved.

¶ 5. The problems subsided until the summer of 2001 when Michael noticed Julie exhibiting strange behavior. In May 2001, Julie called Michael, with slurred speech, pleading with him to deposit Hailey's child support early. She said that she did not have any money to make her house payment and that Hailey was not getting food and other essentials.

¶ 6. Michael claims things were going well between Julie and him. Visitation had always been flexible, and Julie was always very accommodating to Michael's requests to have Hailey. However, in May, 2001, Michael began having continuous visitation with Hailey. Visitation continued to be in excess until October 8, 2001, when Michael filed the motion to modify the divorce decree to obtain custody of Hailey.

¶ 7. On August 20, 2001, Julie was involved in a second accident. This was also a single car accident in which Julie ran her vehicle off the road and struck a telephone pole. A tow truck driver testified that he was called to the scene around 11:00 or 11:30 p.m. and the car was in the median, up against a light pole. The tow truck driver was also able to testify that there were no tire marks on the pavement before the pole. The majority of the damage was done on the passenger side of the vehicle. Hailey was not in the car with Julie. Observation led the tow truck driver to believe that Julie was hesitant about going to the hospital. Julie denies alcohol was involved in this incident.

¶ 8. The Rankin Medical Center Records state that Julie broke her arm, received stitches, and suffered other minor injuries. The nurse's report states that Julie was verbally abusive. Also, Julie admitted to having a few drinks that night.1

¶ 9. Naomie Ruth Smiley and her husband, both Lake Harbor volunteer firefighters, were dispatched on October 6, 2001, to respond to a domestic disturbance call at Julie's home. Julie told the Sheriff's department that she had been beat up. When Ms. Smiley and her husband arrived, the Rankin County Sheriff's deputies were already on the scene. The Sheriff's report stated that Julie knocked out the window of her boyfriend's truck. While in this angry state, Julie was referring to her boyfriend as Michael. She cut her finger in the process and smeared blood on her face to make it look like she had been hit. The boyfriend told the sheriff's department that he was afraid to leave because Julie was drunk, and he did not want her to drive her car or his corvette that was parked at her house. Julie's sister, Pam, testified that Julie flips out when she is intoxicated.

¶ 10. Smiley also testified that the following afternoon, she saw Julie pulled over on the side of the road taking a field sobriety test. According to Smiley, the car pulled over was a white Mustang like the one parked in Julie's driveway the night before. Also, the lady taking the sobriety test was blonde. Julie later testified that she had never been given a field sobriety test.

¶ 11. There have been other instances where Julie has been detained by law enforcement. On October 23, 1999, around 11:00 p.m., Julie went to Michael's home, despite a court order restraining both of them from going to one another's home. Julie testified that she was going to get Hailey because she thought Michael had been drinking. Julie was transported to the police station and was told to call someone to come get her because she had been drinking. Julie testified that she had been set up by Michael because he knew she was coming and the police officers were right behind her when she arrived at Michael's house.

¶ 12. On January 23, 2000, Julie was arrested for trespass and disorderly conduct in Kosciusko at the home of Stephen Mitchell ("Stephen"). Julie testified that Michael told Stephen to tell her to leave and that she was not asked to leave until the police arrived. When the police arrived Stephen had Julie in the front yard, face down in the grass, with his knee on the back of her head. Julie admitted that she had been drinking and was suffering from an "alcoholic rage" at the time.

¶ 13. Julie was driving down Lakeland Drive early one morning when she called Michael to come get Hailey. She told Michael that she was passing out. Michael told her to pull over and he would come and get Hailey. Michael ended up getting Hailey at Cingular Wireless. It appears that she pulled over on Lakeland Drive, passed out, woke up, and then drove to Cingular Wireless. Julie came out to meet Michael, and her breath reeked of alcohol. When Julie popped the trunk, Michael noticed a gallon zip-lock bag full of pills. Julie later testified that she suffers from asthma and allergies and those were samples of allergy medicine given to her by her physician, but then she denied the incident ever happened.

¶ 14. In October 2001, during the State Fair, Julie suffered an attack. In a recorded telephone conversation with Michael, Julie's sister, Pam Crozier ("Pam"), stated that Julie had been on a drinking binge for several days and was shaking because she needed a drink. Pam later changed her story and said Julie was suffering from a claustrophobic or an anxiety attack.

¶ 15. On October 6, 2001, around 11:00 a.m. David Blanks, Michael's brother, saw Julie in a restaurant where he was working as a bartender. He testified that when she entered the restaurant she appeared to be intoxicated. She ordered a beer and nachos and began talking with her friend. David said they left quickly after only 15 minutes, leaving their meal and beer unfinished. Julie admits that she was drunk.

¶ 16. Michael and Stephanie were married in May 2002. They reside in a three bedroom, two bathroom home in a subdivision in Madison. Hailey has her own room complete with her own bed and toys. Sometime between April and May 2001, Michael and Stephanie began attending church regularly (meaning Sunday morning, Sunday night, and Wednesday night). Both are members of the church. There are lots of children's activities in which Hailey participates. Michael testified that Julie does not attend church. Michael also claims that children in Hailey's school class are in Hailey's Sunday school or swim class or live in their subdivision.

¶ 17. Stephanie testified that she and Hailey have a wonderful relationship. Stephanie cares for her as a mother would, reading to her at night, bathing her, taking her shopping, cooking for her, and washing her clothes. Hailey has even began to refer to Stephanie as "Steffy Mommy."

¶ 18. Michael and Stephanie do not drink or smoke. Alcoholic beverages are not kept in their home.

¶ 19. Hailey attended Ms. Jeanne's Silver Spoon ("Ms. Jeanne's") while she was in the custody of her mother. When Michael obtained custody of Hailey on October 9, 2000, he and Stephanie began looking for a school closer to their home. Hailey was placed on the waiting list at the First Baptist Church in Madison, where the curriculum is similar to that of Ms. Jeanne's. Heather Baker is the Director of Child Development at Ms. Jeanne's, and she testified that Julie was very inconsistent in the time she dropped off Hailey whereas Michael was very consistent.

¶ 20. On October 20, 2001, eleven days after Michael received temporary custody of Hailey, Julie voluntarily checked herself into the Mississippi Baptist Medical Center ("Baptist"). Julie's chief complaint was that "I drink beer." Julie claimed that she had an increased amount of blackouts and rages that are related to her addiction problems. Her drugs of choice included alcohol and benzodiapines. The benzodiapines that Julie was taking were prescribed to her for anxiety. She told the physicians that she had been taking them for the two months prior to seeking help, and she felt if she continued to take them that they would become a problem. Julie was detoxed with Tranxene, Ativan, Clonidine, and Trazodone. The medical report states that Julie went...

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