Kerr v. Kerr

Decision Date15 April 2021
Docket NumberNO. 2019-CA-00609-SCT,2019-CA-00609-SCT
Parties India Gambrell KERR v. William Jack (BJ) KERR
CourtMississippi Supreme Court

ATTORNEYS FOR APPELLANT: WILLIAM CHARLES BELL, Jackson, JOHN SAMUEL GRANT, IV, Flowood

ATTORNEY FOR APPELLEE: CAROL ANN ESTES BUSTIN, Hattiesburg

BEFORE KING, P.J., CHAMBERLIN AND ISHEE, JJ.

ISHEE, JUSTICE, FOR THE COURT:

¶1. This is an appeal from the chancery court's grant of divorce to BJ Kerr on the ground of habitual cruel and inhuman treatment and its award of joint custody of the minor child, WHK.1 India Kerr, BJ's ex-wife, argues that the chancellor erred by granting her ex-husband's petition for divorce and not her own. She further seeks an amendment to the custody award arguing that the chancellor's Albright2 analysis was incorrect. This Court finds that the chancellor did not err by granting BJ's divorce complaint and by awarding joint custody.

FACTS

¶2. BJ and India were married on August 21, 2015, and resided together in Laurel, Mississippi. Around one year before their marriage, the parties had a child together, WHK. On September 6, 2016, BJ filed a "complaint for divorce and temporary relief and complaint for emergency and temporary custody and for permanent custody" of WHK. In his complaint, BJ alleged that India was unfit to provide care or custody of WHK for several reasons, namely:

[India] has neglected and endangered the minor child by her actions including but not limited to: failing to properly undergo treatment for mental illness after her involuntary commitment of August 12, 2016; physically assaulting [BJ] in front of the minor child and even with the minor child in her arms; physically assaulting her own father in the presence of the minor child on August 12, 2016; leaving home with the minor child without any means of providing for the minor child; purposefully driving and wrecking her vehicle into another out of rage and while the minor child was a passenger; threatening to kill herself; and allowing the minor child to be around someone with criminal behavior.

¶3. BJ also contended that India was unfit to care for WHK because she was involuntarily committed and hospitalized due to mental illness. BJ sought a divorce from India on the grounds of habitual cruel and inhuman treatment, or alternatively, irreconcilable differences. He additionally requested an emergency hearing regarding custody of WHK as well as a temporary restraining order against India. The chancellor granted BJ an ex parte order for emergency custody of WHK on September 7, 2016.

¶4. India then filed a motion to dissolve the chancellor's order awarding temporary custody of WHK to BJ. India filed a countercomplaint for divorce and her own motion for temporary relief. In India's complaint, she contended that BJ was guilty of adultery and habitual cruel and inhuman treatment. In the alternative, India pled irreconcilable differences. She additionally requested legal and physical custody of WHK, child support from BJ, alimony from BJ, attorneys’ fees, and she further requested that BJ pay her and WHK's hospitalization and medical insurance.

¶5. The chancellor found that India's motion to dissolve the ex parte order for emergency child custody was not well-taken but that certain relief should be granted. First, the chancellor held that BJ should continue to exercise temporary legal and physical care and custody of WHK. Second, India would be entitled to supervised visitation on alternating weekends. The exchange of WHK was ordered by the chancellor to take place at the Laurel Police Department.

¶6. India then filed an amended motion to dissolve the ex parte order awarding temporary custody to BJ. After another hearing, the chancery court ordered that the parties exercise temporary joint legal and physical and custody of WHK, with the parties exercising alternating weeks of physical custody and exchanging WHK at noon each Monday at Trinity Early Learning Center. The court also found that WHK would remain enrolled at Trinity Early Learning Center and ordered that he be present at the preschool for half the day. The court additionally ordered that BJ keep the marital residence.

¶7. BJ contended that upon picking up WHK from India to begin his week of custody on January 16, 2016, he noticed that WHK was acting abnormally. BJ then took WHK for a medical examination. WHK's blood-test results came back positive for benzodiazepines, which according to BJ, WHK was not prescribed. BJ also contended that India had failed to take WHK to the Trinity Learning Center for one half of each day, thus violating the chancery court's custody order. BJ filed a motion to modify the custody order, to appoint a guardian ad litem, and for contempt in light of his allegations that India negligently allowed WHK to get the drugs and did not meet the standards set forth in the temporary-custody order.

¶8. Following a hearing, the court found that BJ's motion for modification of temporary custody should be granted. The court gave BJ primary custody and India visitation on alternating weekends. In response, India filed another motion for appointment of a guardian ad litem (GAL), which the court granted.

¶9. India also filed a motion to amend her countercomplaint for divorce to include an allegation that BJ had abused her during the marriage. Specifically, the amended countercomplaint alleged that "BJ Kerr's history of family violence create a rebuttable presumption that it is detrimental to the child and not in the best interest of the child to be placed in the physical and/or legal custody of BJ Kerr."3 She alleged that there was no evidence to rebut the presumption. India included photographs of redness and scratches on her body. She additionally included an affidavit from Officer Michael Reeves of the Laurel Police Department charging BJ with aggravated domestic assault. The chancery court granted India's motion to amend her pleadings. India then filed a motion for partial summary judgment on the question of the domestic-violence-custody presumption, arguing that because BJ had a history of perpetrating family violence, the court should find that the custody presumption under Section 93-5-24(9)(a)(i) was the law of the case.

¶10. But India later dropped the charge against BJ, and on August 25, 2016, the municipal court issued an order of expunging BJ's domestic-violence charge. BJ responded to India's motion for partial summary judgment and denied any allegations of abuse. In his response, BJ included the expungement order and a municipal court order denying India's petition for a protective order because her allegations of abuse were unfounded.

¶11. The chancellor found that there existed numerous issues of material fact and thus denied India's motion for partial summary judgment. "In particular," the chancellor held, "one of the most hotly contested issues in the case is whether or not BJ Kerr committed any act(s) of domestic violence against India Kerr."

¶12. The appointed GAL issued a report and recommendation regarding custody on June 5, 2018. After a detailed Albright analysis, she concluded that India and BJ should share joint physical and legal custody of WHK.

¶13. After hearing a trial on the merits, the court granted BJ a divorce for habitual cruel and inhuman treatment. As to custody of WHK, the chancellor disagreed with some of the GAL's Albright findings.4 The chancellor found that "the GAL did not place enough emphasis on [WHK's] testing positive for Klonopin

and did not place enough emphasis on [WHK]’s excessive absences from the court ordered pre-school while in India's custody." Ultimately, the chancellor held that the parties should share joint legal custody but that BJ would have physical custody.

¶14. The chancellor ordered that India pay monthly child support based on her ability to earn minimum wage. BJ was to pay 80 percent of the dental and medical expenses not covered by insurance, and India was to pay the rest. The chancellor performed an Armstrong5 analysis and found that "[t]he short duration of the marriage, along with both parties having college degrees, mitigate[ed] against an award of alimony." The chancellor denied India's request for alimony.

¶15. Ownership of the marital home was given to BJ. Because the court found that India's allegations of domestic violence were not credible and granted the divorce to BJ, the court denied India's request for attorneys’ fees. India appealed the final judgment on April 3, 2019.

ISSUES

¶16. India raises five issues on appeal:6

(1) Whether the chancellor erred by admitting WHK's medical record into evidence.
(2) Whether India proved divorce grounds based on habitual cruel and inhuman treatment.
(3) Whether the chancellor erred by denying India's Mississippi Rule of Civil Procedure 41 motion to dismiss.
(4) Whether the chancellor should have applied the domestic-violence-custody presumption against BJ.
(5) Whether the chancellor's Albright analysis was flawed.

STANDARD OF REVIEW

¶17. "The standard of review employed by this Court for review of a chancellor's decision is abuse of discretion." Alexis v. Black , 283 So. 3d 1105, 1107 (Miss. 2019) (internal quotation marks omitted) (quoting McNeil v. Hester , 753 So. 2d 1057, 1063 (Miss. 2000) ). "This Court will not disturb the findings of a chancellor when supported by substantial evidence unless the chancellor abused his discretion, was manifestly wrong, clearly erroneous[,] or an erroneous legal standard was applied." Id. (alteration in original) (internal quotation marks omitted) (quoting Kilpatrick v. Kilpatrick , 732 So. 2d 876, 880 (Miss. 1999) ). "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 (Miss. 2020) (internal quotation marks omitted) (quoting Floyd v. Floyd , 949 So. 2d 26, 28 (Miss. 2007) ).

DISCUSSION

1. Whether the chancellor erred by admitting WHK's medical record into...

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2 cases
  • Jones Cnty. Sch. Dist. v. Covington Cnty. Sch. Dist.
    • United States
    • Mississippi Supreme Court
    • October 13, 2022
    ...evidence unless the chancellor abused his discretion, was manifestly wrong, clearly erroneous[,] or an erroneous legal standard was applied." Id. (alteration in (internal quotation marks omitted) (quoting Alexis, 283 So.3d at 1107). ¶7. But "[t]his Court reviews 'questions of law de novo.'"......
  • Jones Cnty. Sch. Dist. v. Covington Cnty. Sch. Dist.
    • United States
    • Mississippi Supreme Court
    • October 13, 2022
    ...evidence unless the chancellor abused his discretion, was manifestly wrong, clearly erroneous[,] or an erroneous legal standard was applied." Id. (alteration in (internal quotation marks omitted) (quoting Alexis, 283 So.3d at 1107). ¶7. But "[t]his Court reviews 'questions of law de novo.'"......

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