McPhail v. McPhail, 2020-CA-00739-SCT

• Court: United States State Supreme Court of Mississippi
• Writing for the Court: BEAM, JUSTICE
• Parties: JUSTIN McPHAIL v. COLLETTE E. McPHAIL
• Docket Number: 2020-CA-00739-SCT
• Decision Date: 23 February 2023

JUSTIN McPHAIL
v.
COLLETTE E. McPHAIL

No. 2020-CA-00739-SCT

Supreme Court of Mississippi

February 23, 2023

DATE OF JUDGMENT: 02/24/2021

COURT FROM WHICH APPEALED: GRENADA COUNTY CHANCERY COURT, HON. PERCY L. LYNCHARD, JR.TRIAL JUDGE

TRIAL COURT ATTORNEYS: HELEN BAGWELL KELLY LUTHER PUTNAM CRULL, JR. T. SWAYZE ALFORD, WILLIAM RUFUS WHEELER, JR. JAMES ROGER FRANKS, JR. CORY MICHAEL WILLIAMSON EDWARD D. LANCASTER JAY GORE, III GINGER M. MILLER

ATTORNEYS FOR APPELLANT: JUSTIN McPHAIL (PRO SE) CORY MICHAEL WILLIAMSON

ATTORNEY FOR APPELLEE: JAY GORE, III

BEFORE RANDOLPH, C.J., MAXWELL AND BEAM, JJ.

BEAM, JUSTICE

¶1. Justin McPhail appeals from the Grenada County Chancery Court's February 2021 order finding him in willful, continued, contumacious contempt for nonpayment of child support and refusal to complete a psychological evaluation to its conclusion, thus denying his motion to be released from incarceration. The chancery court's February 2021 order

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follows this Court's December 2020 order directing the chancery court to (1) make a written determination as to Justin's ability to pay the financial obligations imposed upon him by the chancery court; (2) make a written determination as to the exact requirements necessary for Justin to be released from incarceration; and (3) provide written findings of fact and conclusions of law regarding these two issues sufficient to allow for review should an appeal be filed. En Banc Order, McPhail v. McPhail, No. 2020-CA-00739-SCT (Miss. Dec. 7, 2020).

¶2. The only issue Justin asserts on appeal is whether the chancery court "abused its discretion by not applying the law, and making a decision that was manifestly unreasonable by ordering [Justin] to undergo a mental health evaluation despite no record of a mental health deficiency." Justin argues that "order[ing] a party to submit to a psychological review is an invasion of his right to privacy." Justin submits that under "Strict Scrutiny analysis the Order of testing must be necessary to further a compelling state interest and narrowly tailored to that end." Justin asks this Court to hold that the chancery court's "ordered psychological examinations were not substantially related to a state interest."

¶3. We may not consider Justin's claim that the chancery court's order was either void or unconstitutional. Justin did not properly challenge the order in the chancery court on those grounds, and he cannot do so now. Tinnon v. Martin, 716 So.2d 604, 610 (Miss. 1998); Ladner v. Ladner, 206 So.2d 620, 623 (Miss. 1968), overruled on other grounds by Bubac v. Boston, 600 So.2d 951 (Miss. 1992)); Masonite Corp. v. Int'l Woodworkers of Am., 206 So.2d 171 (Miss. 1967).

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¶4. The only question before us is whether Justin violated the chancery court's prior orders as found by the chancery court's February 2021 contempt order. Ladner, 206 So.2d at 623. Having carefully considered the record, we must affirm the chancery court's order finding Justin guilty of contempt.

FACTS AND PROCEDURAL HISTORY

¶5. Justin and Collette McPhail divorced in 2012, sharing joint physical and legal custody of their minor son. In 2015, Collette filed a petition for modification of custody and a citation for contempt. Justin filed a response denying the allegations and asserting a counterclaim for contempt. Protracted litigation ensued, and a guardian ad litem (GAL) was appointed who later recommended to the chancery court that Justin submit to a drug test and that a mental health professional be appointed to evaluate the family.

¶6. In January 2018, the chancery court ordered both parties to submit to hair-follicle drug testing within ten days from the date of the order. The court also ordered each party and the GAL to submit the name of a properly licensed and credentialed psychologist or psychiatrist to the court within ten days to be designated by the court to evaluate the mother, the father, and the child. The court ordered both parties to share the costs equally.

¶7. Justin did not submit to a drug test and did not submit the name of a mental health professional. In April 2018, a show-cause hearing was held to determine if Justin should be held in contempt for failure to comply with the court's order. The chancery court heard

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testimony from both parties.^[1]

¶8. At the start of the hearing, Justin (who was then proceeding pro se) sought to crossexamine Collette about her mental health history. The chancery court informed Justin that Collette's mental health was not relevant then because the hearing that day was a show-cause hearing to determine if Justin should be held in contempt.

¶9. Justin then testified that he did not get a drug test because the "drug testing industry is plagued with bias and conflict of interest." And "there are too many people that stand to see me lose from a negative drug test."

¶10. Justin said he did not submit the name of a psychologist because "[t]he psychological evaluation is bullshit[.]" He then stated, "[h]ow can I be asked to have my son submit to something that I think would be harmful to him for one thing?" Justin later told the court that he would be open to a psychological evaluation at the proper time but that the proceedings had been too rushed, and "we need to evaluate [the] evidence that we have" regarding the custody-modification matter.

¶11. When asked why he was $1400 in arrears for child support, Justin told the court: "Well, I guess a reduction of income would be stating the obvious. I mean, what else is there?"

¶12. The chancery court found by clear and convincing evidence, which included Justin's

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own testimony, that Justin did not comply with the court's orders that he submit to a drug test and provide the name of a licensed psychologist or psychiatrist for the court to consider for appointment. The court further found that although Justin claimed an inability to pay his child support, he failed to demonstrate with particularity his inability to do so. See Hooker v. Hooker, 205 So.2d 276, 278 (Miss. 1967) (A parent may exonerate themself from failure to make child support payments because of their inability to pay, "but [this] evidence must be made with particularity and not in general terms." (citing Kincaid v. Kincaid, 213 Miss. 451, 57 So.2d 263 (1952)).

¶13. The chancery court ordered that Justin be held in the Grenada County jail until such time as he has purged himself of contempt of all prior orders, including submitting to the drug test previously ordered, providing the name of a proposed psychologist or psychiatrist to the court for appointment, and paying $1400 in child support.

¶14. Later in April 2018, the chancery court appointed Dr. Paul Leonard, a psychologist recommended by the GAL and Collette. The order instructed Dr. Leonard to evaluate the minor child, Collette, and Justin along with any other family members deemed necessary by Dr. Leonard in the best of interest of the child and to report his findings to the chancery court.

¶15. In June 2018, upon the appointment of Dr. Leonard, the chancery court issued an order finding its previous order requiring that Justin provide the name of a psychologist to be moot. The chancery court also found that due to Justin's incarceration and the extensive

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time that had passed that would likely "taint a hair follicle test for drugs," its previous order requiring a drug test was moot. The court held that it would draw a rebuttable negative inference at the custody-modification trial that had Justin submitted to drug testing as ordered, the results would not have been favorable to him. In a written order, the chancery court held that Justin may be released from custody upon the fulfillment of his child support obligations and payment of attorneys' fees previously awarded to Collette.

¶16. In the same order, the chancery court instructed that both parties and the minor child were to submit to psychological testing by Dr. Leonard on or before July 20, 2018. And if Justin was still incarcerated at that time, sheriff personnel was to transport Justin to Dr. Leonard's office.

¶17. When a sheriff's deputy prepared to take Justin to the psychologist, Justin refused to attend unless certain conditions were met. Justin also filed an "Affidavit of Conditions" with the court. These conditions were (1) that Justin be given a "Release on his own Recognizance (ROR)" and that he be allowed to drive himself to the appointment; (2) that the entire appointment be recorded and that this recording be given to Justin at the end; (3) that the cost for the appointment be paid by someone other than Justin; and (4) that all of this be in writing stating that he was not relinquishing his constitutional rights and that it be recorded by the court.

¶18. A hearing was held in August 2018 to address Collette's July 2018 motion for contempt and other relief as well as Justin's "ex parte request for injunctive relief." At the

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hearing, Justin told the chancery court that he did not refuse the psychological evaluation on the basis that he did not think it was relevant. Rather, he felt "it should be recorded because [Collette] has a history of psychological issues." Justin said he wanted a recording of his psychological examination available for court records so it could be reviewed by an independent psychologist or psychiatrist for a second opinion.

¶19. The chancery court told Justin that its previous order did not allow him to refuse the examination unless certain conditions were met. The court explained that it did not have the authority to tell the psychologist how to conduct the examination and that the cost of the examination had already been paid by Collette. The court then found that Justin remained in contempt and in arrears for child support.

¶20. At a status hearing in October 2018, Justin agreed to submit "unconditionally" to a psychological...