Lamy v. Lamy
| Decision Date | 29 November 2022 |
| Docket Number | 2021-CA-00770-COA |
| Parties | PHILLIP JOSEPH LAMY APPELLANT v. ELIZABETH ANN LAMY APPELLEE |
| Court | Mississippi Court of Appeals |
¶1. On June 16, 2021, the Chancery Court of Harrison County entered a judgment on Phillip Lamy's "Complaint for Modification and For Contempt" and Elizabeth Lamy's "Counter-Claim For Modification." Aggrieved by the ruling of the chancery court, Phillip appeals.
¶2. Phillip and Elizabeth Lamy were adult resident citizens of Harrison County at the time they filed for divorce on September 22, 2015. They had three minor children, P.J.L., born in August 2011; O.A.L., born in September 2012; and R.W.L., born in August 2014.[1] On June 12, 2018, the Chancery Court of Harrison County granted Phillip and Elizabeth a final judgment of divorce on the statutory ground of irreconcilable differences. While the final judgment granted the parties a divorce, the court reserved the issues and claims for custody, visitation, and child support for a future order. An "Agreed Order on Custody" (agreed order) was entered on September 9, 2019, without the necessity of a trial.
¶3. On April 28, 2020, Phillip filed his "Complaint for Modification and For Contempt." According to Phillip's complaint and his testimony at trial, Elizabeth "failed and refused to comply" with the agreed order and therefore should be held in contempt. More specifically, his complaint alleged the following:
Phillip further alleged that since the date of the agreed order, there had been a material change in circumstances in Elizabeth's home that adversely affected the minor children, and, therefore, the agreed order should be modified. According to Phillip, not only had Elizabeth taken the actions described above in an attempt to alienate him from the children, she also had stopped working and was currently receiving monthly disability payments. Phillip claimed that because Elizabeth was not working, she was no longer able to provide for the minor children. Among other requests for relief, Phillip requested that he be granted physical custody of the minor children subject to standard visitation to be exercised by Elizabeth. Phillip also requested that Elizabeth be required to pay child support for the benefit of the minor children.
¶4. On May 18, 2020, Elizabeth filed a response to Phillip's complaint, which included a counter-claim for modification. In her response and in her testimony at trial, Elizabeth denied taking any actions to alienate the children from Phillip. She also alleged that she "acted wholly and completely in the best interest of the children." Elizabeth claimed that she discussed "the issues of the children's school work and the problems associated with that [with Phillip,] but she could not get a resolution." Elizabeth claimed that there had been a "material change of circumstances of the parties which would warrant a modification." According to Elizabeth, the minor children needed a more consistent and disciplined schedule to excel in their schooling and education. She alleged that during the height of the COVID-19 pandemic when the children were being home-schooled, Phillip "did not maintain a consistent, punctual, or disciplined approach with the children's school work, and as a result, all three fell behind." For that reason, she maintained, she kept the children with her during the school week despite the agreed order. Additionally, Elizabeth's counter-complaint stated that Phillip harassed her by constantly driving by her residence (contrary to his assertion that he did not know where she was living with the children). She also claimed that Phillip often made disparaging remarks about her to the children and allowed the children to play and watch age-inappropriate games, music, and videos. According to Elizabeth, Phillip did not pay proper attention to the children's hygiene, and the children came home with both head lice and bed bug bites after visiting their father. For these reasons, Elizabeth requested that the chancery court allow her to have "primary custody of the children with the father to have appropriate visitation that works for the best interest of the children's education." Phillip filed an answer to Elizabeth's counterclaim on August 18, 2020.
¶5. On June 1, 2020, the chancery court entered an "Order on Temporary Features," which stated in part that Tara Kellar, the guardian ad litem (GAL) previously appointed by the chancery court in the parties' divorce action, would be re-appointed to investigate the allegations in the pending litigation. The temporary order also set out the terms for summer visitation, granting Phillip visitation with the minor children for the vast majority of the summer.
¶6. The trial began in the chancery court on June 10, 2021. Other than the parties, the only other witness to testify at trial was the GAL. The GAL's report was entered into evidence as Exhibit 3.[2] In furtherance of her investigation, the GAL interviewed Elizabeth, Phillip, and each of the three children on two separate occasions. In addition to the interviews, the GAL reviewed a substantial amount of documents and correspondence provided by the parties and their attorneys, including photographs, school records, medical records, emails, and other correspondence. According to the GAL, it was her opinion that Phillip failed to meet his burden and, therefore, a modification of physical custody was not appropriate. Further, the GAL testified that "the visitation schedule that was in place in September of 2019 [was] not a viable schedule working in the children's best interests." More specifically, the GAL stated:
As the Court is aware, this Court has attempted numerous schedules that would allot fairly equal time for both parties. All of those schedules have led to chaos, confusion, arguments, and continued litigation. . . . [T]he hardest thing in the children's life at this point is constantly being tugged and torn and being drugged - - drugged through this and not knowing what's going on in - - in their life. They have a lot of anxiety, and I think a lot of it stems from the fact they're being - - they're being torn.
After the GAL gave her recommendation, the chancellor announced her ruling from the bench and she denied all the relief requested in Phillip's complaint. The chancellor adopted the recommendation of the GAL and held in part that physical custody of the children should remain with Elizabeth subject to Phillip's modified visitation, which would occur every other weekend going forward.
¶7. On June 16, 2021, the chancery court's judgment was entered, memorializing its bench ruling from June 10, 2021. On July 9, 2021, Phillip filed his notice of appeal.
¶8. "This Court employs a limited standard of review in child-custody cases and will 'affirm findings of fact by chancellors . . . when they are supported by substantial evidence unless the chancellor abused her discretion, was manifestly wrong, clearly erroneous or an erroneous legal standard was applied.'" Carter v. Carter, 204 So.3d 747, 756 (¶37) (Miss. 2016) (quoting Borden v. Borden, 167 So.3d 238, 241 (¶4) (Miss. 2014)). "This Court may reverse a chancellor's finding of fact only when there is no 'substantial credible evidence in the record' to justify his finding." Hensarling v. Hensarling, 824 So.2d 583, 586 (¶7) (Miss. 2002) (quoting Henderson v. Henderson, 757 So.2d 285, 289 (¶19) (Miss. 2000)). This Court reviews all questions of law de novo. Townsend v. Townsend, 859 So.2d 370, 372 (¶7) (Miss. 2003).
¶9. Phillip raises ten issues on appeal regarding the chancery court's admission of certain evidence at trial and its denial of his request for a modification of custody and contempt against Elizabeth. Some of the issues raised on appeal have been consolidated in the Court's analysis below.
¶10. Phillip argues that the chancery court erred in "denying [his] Motion to exclude evidence attached to the Guardian Ad Litem report and utilized by the Guardian Ad Litem not disclosed in discovery." He claims that Elizabeth did not provide him or his...
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