Kay v. Kay, 2021-CA-01377-COA

CourtCourt of Appeals of Mississippi
Writing for the CourtSMITH, J.
PartiesDAVID BEN KAY APPELLANT v. CARRIE JOE KAY APPELLEE
Docket Number2021-CA-01377-COA
Decision Date22 November 2022

DAVID BEN KAY APPELLANT
v.

CARRIE JOE KAY APPELLEE

No. 2021-CA-01377-COA

Court of Appeals of Mississippi

November 22, 2022


DATE OF JUDGMENT: 11/19/2021

COURT FROM WHICH APPEALED RANKIN COUNTY CHANCERY COURT HON. JOHN C. McLAURIN JR. TRIAL JUDGE.

ATTORNEY FOR APPELLANT: JOHN T. WAKELAND.

ATTORNEY FOR APPELLEE: CARRIE JOE KAY (PRO SE).

BEFORE BARNES, C.J., McDONALD AND SMITH, JJ.

SMITH, J.

¶1. David Kay appeals from the Rankin County Chancery Court's judgment that found him in contempt for interfering with the visitation rights of his ex-wife Carrie Kay and modified the parties' child-custody arrangement. On appeal, David asserts the chancellor erred by (1) finding him in contempt for failing to comply with the divorce judgment and incorporated parenting plan; and (2) ordering the children to report to the Rankin County Detention Center for detainment without a hearing if they refuse to participate in scheduled visitation with Carrie.

¶2. As to the contempt ruling, we find substantial credible evidence supports the chancellor's determination that David willfully failed to comply with the guidelines set forth

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in the couple's divorce judgment and incorporated parenting plan. Upon review, however, we reverse and render the portion of the chancellor's judgment that directed the children to report to the Rankin County Detention Center to be detained without a hearing if they choose not to participate in future scheduled visitation with Carrie. We therefore affirm in part and reverse and render in part the chancellor's judgment.

FACTS

¶3. The Kays married in 2005. During their marriage, they had two daughters: Shannon, born in 2006, and Haley, born in 2010.[1] By the judgment of the Superior Court of Richmond County, Georgia, which was signed on January 25, 2016, and subsequently filed on February 17, 2016, the parties divorced. The Georgia court adopted the Kays' agreement regarding child custody and property settlement. Per their agreement, the Kays shared legal custody of their daughters while David retained physical custody subject to Carrie's reasonable rights of visitation. Also per their agreement, Carrie paid David $869 each month in child support, and David retained exclusive ownership of the marital residence.

¶4. At the time the parties initiated their divorce proceedings, they both lived in Georgia. However, prior to January 25, 2016, when the Georgia court signed the divorce judgment, David moved with the children to his parents' home in Rankin County, Mississippi. In March 2017, Carrie, who worked as a civilian contractor for the United States military, received a job offer for a five-year position in Italy. As the trial testimony reflected, David encouraged Carrie to accept the overseas position and assured Carrie that he would work

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with her to make the long-distance visitation a viable option. Based in part on David's assurances, Carrie accepted the position in Italy. Following Carrie's move, David accompanied the children for an extended summer visit with Carrie in Italy. After the single trip in the summer of 2017, however, the children did not return to Italy for any further visits.

¶5. After only two years in Italy, Carrie returned to the United States in March 2019 to be closer to her children. Carrie accepted a position in Alabama and continued to work as a civil contractor for the military. In January 2020, David remarried. David, his new wife, and the parties' daughters moved into their own home in Rankin County.

¶6. In August 2020, David filed a petition with the Rankin County Chancery Court to enroll the Georgia divorce judgment in Rankin County. David sought to have the chancellor accept jurisdiction over the parties and enforce Carrie's compliance with her child-support obligation. Carrie subsequently filed with the chancery court two petitions for citation of contempt against David. The contempt petitions raised the same three claims. Specifically, Carrie asserted David was in contempt due to (1) "his steadfast failure and refusal to allow Carrie[] visitation with the two minor children as and when she is allowed to do so"; (2) his conduct in "estranging the children from their mother, not encouraging the children to visit with their mother, and interfering with Carrie's right of custody and visitation"; and (3) his continuous failure "to inform Carrie of any injuries, serious illnesses, or any medical assistance the minor children required."

¶7. In February 2021, the parties filed an agreed order requesting that the Georgia divorce judgment be enrolled in Rankin County and that the chancellor assume jurisdiction over all

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matters involved in their divorce judgment. The chancellor held an August 5, 2021 hearing on Carrie's contempt claims against David. Carrie, David, and David's mother Petra Kay each testified.

¶8. Carrie's attorney called David as an adverse witness. David confirmed that by the time the parenting plan contained in the parties' Georgia divorce judgment went into effect, he and the children had moved to Mississippi. David agreed with Carrie's attorney that the parenting plan's provisions regarding Carrie's weekend visitation assumed that both parties lived in Georgia rather than almost eight hours apart in separate states. David further agreed that it was probably not reasonable for a person to exercise weekend visitation when the parties lived almost eight hours apart. He also testified that as far as he was aware, neither his divorce attorney nor anyone else had attempted to change the parenting plan's visitation provisions prior to the entry of the divorce judgment.

¶9. Although Carrie had lived in Italy for almost two years, David confirmed that the children only visited her during the summer of 2017 after she first moved. David testified that he had included the children's input in his decision making and could not physically force them to visit Carrie. Thus, after the children allegedly expressed a disinclination to return to Italy following their first and only trip, David did not take them to Italy any other times to visit Carrie. David further confirmed that in the week leading up to the contempt hearing, he had responded by email to Carrie's request for dinner with the children and had dictated where she could take the children and how much time she could spend with them. As David testified, he had informed Carrie in his email as to "where the girls wanted to go

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eat dinner and what time [he] would take them there and . . . pick them up" from the restaurant.

¶10. David acknowledged that as the children's parent, he bore a responsibility to his children to ensure they had a relationship with Carrie. David testified, however, that he was "not the conduit" for Carrie to talk to the children because everyone had access to the internet, phones, and other means of communication. David further testified that Carrie always had "consistent access to call and text the girls unless the girls ha[d] their phones taken away from them" as a disciplinary measure. Although David did not know the exact number of times the parties' older daughter Shannon had seen Carrie in the eighteen months leading up to the hearing, he stated he would not dispute Carrie's estimate of only fourteen days. David also acknowledged his responsibility to help foster a relationship of love and affection between the children and Carrie. In light of that duty, he admitted it was "[p]robably not" appropriate that the only Mother's Day card Carrie had received during the prior three years included a statement that Shannon did not want to see Carrie.

¶11. David testified that he called Carrie "[e]xtremely rarely." In one exhibit that Carrie entered into evidence, David told Carrie via email to "[p]lease stop calling my phone. If you need to talk to me, send an [e]mail." With regard to his responsibility to keep Carrie informed about medical issues involving the children, David stated that he had informed Carrie "[i]f it's worth telling her about . . . ." David further explained that he did not generally inform Carrie about any "small procedure[s]" and probably only let her know about "routine procedures" after the fact when it was time for...

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