Johnson v. Smith

• Decision Date: 13 April 2021
• Docket Number: NO. 2019-CA-01450-COA,2019-CA-01450-COA
• Citation: 328 So.3d 145
• Parties: Ashton JOHNSON, Appellant v. Thomas Kyle SMITH, Appellee
• Court: Mississippi Court of Appeals

328 So.3d 145

Ashton JOHNSON, Appellant

v.Thomas Kyle SMITH, Appellee

NO. 2019-CA-01450-COA

Court of Appeals of Mississippi.

April 13, 2021

Rehearing Denied August 10, 2021

ATTORNEYS FOR APPELLANT: JOHN S. GRANT III, JOHN SAMUEL GRANT IV, Flowood

ATTORNEYS FOR APPELLEE: RISHER GRANTHAM CAVES, BRAD RODRICK THOMPSON, TERRY L. CAVES, Laurel

BEFORE CARLTON, P.J., GREENLEE AND McDONALD, JJ.

CARLTON, P.J., FOR THE COURT:

¶1. This appeal arises from a custody dispute between Kyle Smith and Ashton Johnson over their minor child, H.S.¹ After a bench trial, the Wayne County Chancery Court awarded Smith sole physical custody of H.S., with Johnson to have visitation. Johnson filed several post-trial motions, which the chancellor denied. The chancellor later entered an amended final judgment in the matter and re-adopted his previous findings regarding the custody award.

¶2. Johnson now appeals after the following judgments were entered: (1) the chancellor's final judgment awarding Smith sole physical custody of H.S.; (2) the chancellor's order denying Johnson's motion for relief from judgment pursuant to Mississippi Rule of Civil Procedure 60(b) ; and (3) the chancellor's amended final judgment, in which the chancellor denied Johnson's motion for a new trial pursuant to Mississippi Rule of Civil Procedure 59(a) and her motion to alter or amend the judgment pursuant to Mississippi Rule of Civil Procedure 59(e).

¶3. After our review, we affirm the chancellor's ruling awarding Smith sole physical custody of H.S.

FACTS

¶4. Johnson and Smith have one child together, a boy named H.S., who was born in 2012. At the time of H.S.'s birth, Johnson and Smith were in an intimate relationship, but they never married. Since his birth, H.S. has resided with Johnson and Smith at their respective residences.

¶5. On February 8, 2016, Smith filed a petition to establish custody, support, and visitation of H.S. in the Wayne County Chancery Court.² In the petition, Smith asserted that it would be in H.S.'s best interest for Smith and Johnson to share joint legal and physical custody, with each party receiving physical custody of H.S. on alternating weeks. Smith personally served Johnson with a summons pursuant to Mississippi Rule of Civil Procedure 81, as well as a summons pursuant to Mississippi Rule of Civil Procedure 4.³ The Rule 81 summons ordered Johnson to appear before the chancellor on April 1, 2016, and defend her case.

¶6. Johnson and Smith appeared before the chancellor on April 1, 2016. However, it is undisputed that no hearing occurred that day. Instead, the parties met with the chancellor in his chambers and attempted to enter into a settlement. The record reflects that the parties could not agree upon a written order. An agreed order reflecting the parties' legal and physical custody agreement appears in the record; however, neither the parties nor the chancellor ever signed the order.

¶7. At some point after April 1, 2016, Johnson informed Smith that she had moved with H.S. to Lafayette, Louisiana. On July 28, 2016, Smith filed an amended petition seeking sole physical custody and joint legal custody of H.S.

¶8. Johnson asserts that Smith never served her with the amended petition pursuant to Rule 81 ; rather, Smith's attorney faxed a copy of the amended petition to Johnson's attorney. Smith's attorney also faxed the notice of hearing on the amended petition to Johnson's attorney. The notice listed a hearing date of August 17, 2016.

¶9. For reasons unclear from the record, no hearing took place on August 17, 2016. Instead, the chancellor held a bench trial on September 15, 2016.⁴ Despite Smith's failure to serve Johnson pursuant to Rule 81, Johnson and her attorney appeared at the chancery court on September 15, 2016.

¶10. During Smith's case-in-chief, the chancellor heard testimony from Smith. The chancellor also heard testimony from Smith's father, mother, and stepmother, as well as Johnson's father. At the close of Smith's case-in-chief, Johnson's counsel moved to exclude Smith's amended petition from consideration. Johnson's counsel argued that the amended petition was not filed properly and that the chancellor did not give Smith leave to file an amended petition. The chancellor responded, "I think you're probably right." The chancellor then added, "Not that it matters, because I gotta do what's in the best interest of the child." Johnson's counsel requested that the chancellor only grant the relief sought under Smith's original petition filed on February 8, 2016. The chancellor ultimately granted Johnson's request and stated that "we'll just go on the original petition."

¶11. Johnson then presented her case-in-chief. The chancellor heard testimony from Johnson, as well as from her grandmother, mother, and cousin.

¶12. At the conclusion of the trial, the chancellor conducted an Albright⁵ analysis and made his ruling from the bench. The chancellor awarded Johnson and Smith temporary joint physical and legal custody of H.S. for a period of eleven months, until the beginning of the 2017 school year. At the conclusion of the eleven-month period, the chancellor awarded Smith sole physical custody, with Johnson receiving visitation. The chancellor stated that if Johnson moved back to within forty-five miles of Jones County, then she would get additional visitation on Wednesday nights. The chancellor also ordered Smith to pay Johnson child support during the eleven-month temporary period of joint physical and legal custody. The chancellor stated that after the temporary period, "no party will be responsible for child support to the other." The chancellor entered a written order memorializing the bench ruling on October 24, 2016.

¶13. Johnson immediately retained new counsel and filed several post-trial motions: (1) a motion for findings of fact pursuant to Mississippi Rule of Civil Procedure 52, (2) a motion for relief from judgment pursuant to Mississippi Rule of Civil Procedure 60(b)(4), and (3) a motion for new trial pursuant to Rule 59(a), together with a motion to alter or amend the judgment pursuant to Rule 59(e). The record shows that all of Johnson's post-trial motions were filed on the same day: September 23, 2016.

¶14. In both her Rule 59 motion and her Rule 60(b) motion, Johnson argued the issues of defective Rule 81 service and lack of notice. Johnson asserted that the Rule 81 summons Smith served upon her for the April 1, 2016 hearing had lapsed when no order was entered and signed after the hearing and no continuance was granted. Johnson maintained that pursuant to Rule 81, Smith was required to serve her with an additional Rule 81 summons for the September 15, 2016 trial. Johnson argued that because Smith failed to properly serve her pursuant to Rule 81, the chancellor's judgment awarding Smith sole physical custody of H.S. was void. Johnson also informed the chancellor that she had moved from Lafayette back to Wayne County, Mississippi, and that she intended to permanently reside in Wayne County.

¶15. On August 21, 2017, the chancellor entered an order denying Johnson's Rule 60(b) motion. In his order, the chancellor addressed Johnson's argument that because Smith failed to properly serve her pursuant to Rule 81, the chancellor's judgment was void. The chancellor found that the court had jurisdiction over the matter and jurisdiction to hear the September 15, 2016 trial. The chancellor accordingly held that "[t]he applicable [j]udgment entered subsequent to the [t]rial stands in full force and effect."

¶16. On February 9, 2018, the chancellor held a hearing on the remaining post-trial motions.⁶ On August 23, 2019, the chancellor entered an amended final judgment. In this judgment, the chancellor denied the relief Johnson requested in her motion for a new trial or to alter or amend the judgment. The chancellor also addressed Johnson's motion for findings of fact and conclusions of law pursuant to Rule 52. The chancellor ultimately held that he was "re-adopting" his custody award from the August 23, 2016 judgment.

¶17. Johnson now appeals, asserting the following assignments of error: (1) the chancellor erred by holding a child-custody trial without Rule 81 process or any type of written notice or agreement; (2) the chancellor erred by either sua sponte granting sole physical custody to Smith or by contradicting his prior ruling that he would not hear Smith's request for sole physical custody; (3) the chancellor erred by entering an ambiguous order on legal custody; and (4) the chancellor erred in his Albright findings and conclusions.

STANDARD OF REVIEW

¶18. "The standard of review in child custody cases is limited. Reversal occurs only if a chancellor is manifestly wrong or applied an erroneous legal standard." Barber v. Barber , 288 So. 3d 325, 330 (¶22) (Miss. 2020). Upon review, we will "affirm findings of fact by chancellors in child custody cases when they are supported by substantial evidence unless the chancellor abused [his] discretion, was manifestly wrong, clearly erroneous or an erroneous legal standard was applied." Id .

DISCUSSION

I. Rule 81

¶19. Johnson argues that the chancellor violated her due process rights by holding a child-custody trial despite Smith's failure to provide Johnson with Rule 81 process or any other written notice that Smith's request for sole physical custody would be heard that day. Johnson claims that for much of the trial "it was unclear what exactly was being tried." Johnson asserts that because Smith failed to properly serve her with process pursuant to Rule 81, the chancellor's judgment is void and must be set aside.

¶20. On appeal, Smith does not dispute that he failed to serve Johnson with Rule 81 process providing her written notice of the September 15, 2016 trial. However, Smith asserts that Johnson waived any claim of defective process by appearing at the trial and actively participating in the litigation.

¶21. As stated, Johnson filed post-trial motions pursuant to Rule 60(b), Rule 59(a), an...