Munday v. McLendon

• Decision Date: 03 December 2019
• Docket Number: NO. 2018-CA-00375-COA,2018-CA-00375-COA
• Citation: 287 So.3d 303
• Parties: Kendra Michelle MUNDAY, Appellant v. Robert MCLENDON, Appellee
• Court: Mississippi Court of Appeals

287 So.3d 303

Kendra Michelle MUNDAY, Appellant

v.Robert MCLENDON, Appellee

NO. 2018-CA-00375-COA

Court of Appeals of Mississippi.

December 3, 2019

ATTORNEY FOR APPELLANT: LEE TURNER

ATTORNEYS FOR APPELLEE: BARRON CRUZ GRAY, THOMAS T. BUCHANAN, Laurel

BEFORE BARNES, C.J., GREENLEE AND LAWRENCE, JJ.

LAWRENCE, J., FOR THE COURT:

¶1. Kendra Munday (Kendra) appeals the Perry County Chancery Court's decision to modify the child-custody agreement between her and her ex-husband, Robert McLendon (Robert). Following a hearing, the chancellor changed physical custody of the former couple's only child from Kendra to Robert. Kendra appealed, claiming that the chancellor erred in denying her motion for a continuance and awarding Robert physical custody. We find no abuse of discretion and therefore affirm the chancellor's judgment.

FACTS

¶2. Kendra and Robert married on August 1, 2008. They had one child together—B.A.M.¹ — born September 27, 2008. The couple later divorced on June 24, 2013. The child-custody agreement stated that Kendra would have physical custody of the minor child, with Robert receiving visitation every other Wednesday and every other weekend. The agreement further stated that Robert would receive five weeks of summer visitation. For regular bi-weekly visitation exchanges of the child, Robert and Kendra agreed to meet at a halfway point—McClain, Mississippi. The agreement allowed for Robert's family to assist in transportation for the visitation exchange. Robert and Kendra agreed to share joint legal custody, and Robert was ordered to pay $350 in child support. Finally, the agreement specified that in the event either parent moved or changed addresses or phone numbers, he or she must notify the other parent of the change and file the change in Perry County.

¶3. On December 15, 2016, Robert filed a complaint for modification and citation of contempt.² Robert claimed that, since the entry of the divorce judgment, Kendra failed to allow him to make up over fifty days of visitation missed due to his work schedule, that she refused to respond to his text messages regarding B.A.M., that she refused to allow his family to pick B.A.M. up for visitation exchange, and that she had moved to Louisiana and failed to notify him of her address or B.A.M.'s school information. He also claimed that a material change in circumstances adversely affecting the child had occurred. The material changes included Kendra's move to Louisiana, Kendra's mother (who allegedly has a criminal record) babysitting the child, and the child coming to his house with a severe sunburn, flea bites, and dirty clothes.

¶4. Kendra filed her answer and defenses to the complaint for modification and citation of contempt and a counterclaim for modification and contempt and other equitable relief. In her counterclaim, Kendra asserted that Robert failed to timely return the child from visitation. She also stated that the mid-week visitation was no longer feasible due to her move to Louisiana. As a result, Kendra requested that the court designate a new halfway point.

¶5. The court appointed a guardian ad litem (GAL) on February 23, 2017. On February 27, 2017, the court entered a temporary order directing the parties to continue visitation as previously ordered and allowing the child to have her cell phone returned to her with no restrictions on calling or texting Robert. However, the court allowed Kendra to turn off any GPS/location services on the phone when the child was in her care. The court also ordered Robert and Kendra to each pay $1,000 for the GAL's representation.

¶6. On March 28, 2017, Robert filed a complaint for citation of contempt of the temporary order, claiming that Kendra had refused to allow the child to text or call him and had withheld visitation. In her answer, Kendra denied Robert's allegations.

¶7. The GAL submitted her report on January 29, 2018. Attorneys for both sides received a copy. That same day, Kendra filed a motion for continuance, claiming that she should have also received a copy of the GAL's report since she lived too far away to review her attorney's copy. The court later denied the motion,³ and the case proceeded to trial on February 1, 2018.

¶8. Kendra testified that she had three children—one with Robert, one child (six years old) from a previous relationship, and one child (six weeks old) with her current husband. Her youngest child suffers from hyperinsulinemia

and hyperammonemia. At the time of trial, Kendra was not working outside of the home. She testified that she stopped working in May 2017 due to pregnancy complications.

¶9. Kendra testified that she moved to Abbeville, Louisiana, on December 1, 2016. Before her move, Kendra lived in Leakesville, Mississippi. She also testified that her mother, father, and brother live in Leakesville and that she had other relatives in the surrounding area. Kendra stated that her husband was a store manager and that the company discussed moving him to Nashville, Tennessee. Kendra stated that "[i]t would be a great opportunity, but there's nothing definite or set in stone."

¶10. When questioning Kendra, plaintiff's counsel showed her pictures⁴ of B.A.M., sunburned. The child's body had blisters from the sunburn. Kendra testified that she had never seen B.A.M. with a sunburn like the one pictured. Regarding B.A.M.'s hygiene, Kendra stated that she made B.A.M. take a bath every day unless she spent the day "[lying] around the house."

¶11. Kendra stated that Robert was "well aware" of her move to Louisiana and B.A.M.'s change in schools. She testified that B.A.M. had done well in her new school and enjoyed participating in classroom activities. Kendra stated that B.A.M. was not involved in any extracurricular activities. When asked if she had ever inhibited B.A.M. from contacting her father, Kendra stated "no" and that the phone stayed in the child's room at all times.

¶12. Plaintiff's counsel questioned Kendra about Exhibit 11, which showed "screenshots" of Kendra's text messages. Specifically, Exhibit 11 showed Kendra's text messages to Robert about visitation on May 28, 2017. In one message, Kendra stated that she would meet Robert on May 28 at 6 p.m. She then stated that she could meet him in McClain at 5:30 p.m. Kendra's "screenshots" showed no response from Robert. Kendra's last text to Robert read: "[I]f you do not respond to this text letting me know that you are getting her today for her five-week visitation then I will assume you don[']t want her and you will forfeit visitations this summer."

¶13. Kendra was then asked about Exhibit 13, which displayed the same "screenshots" of text messages from Robert's phone. Curiously, Exhibit 13 showed the same text-message exchange, but with Robert's responses. Within his responses, Robert said he would meet Kendra at 5:30. Kendra claimed she never received Robert's responses, which was why she did not have his messages on her phone.

¶14. Robert testified that he lived in Richton, Mississippi, and worked at Georgia-Pacific Leaf River Cellulose. He worked twelve-hour shifts, alternating between day and night. Robert also stated that he was married and that his wife was pregnant. He testified that Kendra texted him two weeks before she planned to move to Louisiana. Robert informed her that he did not think it was a good idea to move their daughter away from all her friends and family. Robert also stated that he had numerous family members in the area, including an aunt, four cousins, and his in-laws.

¶15. Robert filed his complaint because Kendra had moved to Louisiana, and Kendra was no longer cooperating with visitation. Plaintiff's counsel showed Robert Exhibit 4, a calendar of the child's missed school days at her new school in Vermillion Parish from August 2017 to January 2018. Robert testified that he knew some of the missed days were due to illness and visiting Kendra's family.

¶16. Robert also testified about B.A.M.'s poor hygiene. For example, when he picked her up for visitation, he brought clothes for her to change into "because she would stink." He stated the first thing she did at his house was take a shower.

¶17. When reviewing Exhibit 3, the pictures of B.A.M.'s sunburn, Robert testified that she came from Kendra's house with the sunburn. When he addressed Kendra about the sunburn, Kendra stated that she did not notice the sunburn because they were out in the yard that day. Another picture from Exhibit 3 showed B.A.M. with bug bites. Robert testified that they were flea bites, and that the bites were visible when she arrived at his house for weekend visitation. He also testified that he called Mississippi Department of Human Services three times to report the sunburn and flea bites.

¶18. Kayla McLendon testified that she had a great relationship with her stepdaughter. At the time of trial, Kayla worked as a teller at a local bank. She worked normal business hours, usually Monday through Friday. She stated that when B.A.M. would come for visitation, she often smelled "nasty" like she had not had a bath. Kayla applied medicine to the child's back when she had blisters from the sunburn. She also stated that she called Forrest General about the blisters and spoke with an on-call nurse. Kayla had also seen the flea bites on the child during their visitation.

¶19. Kayla testified that she and Robert gave B.A.M. a watch phone and often had difficulty getting in touch with her when she was with Kendra. For example, Robert would text B.A.M. and not hear back from her for "an extended period of time." She also stated that the phone at one time had been "turned off for months." Kayla also testified that Robert had problems getting B.A.M. for visitation. She further stated that they attempted make-up visitations for when Robert had missed due to work, but they were unsuccessful because Kendra would not cooperate.

¶20. The GAL's testimony mirrored her report. She conducted home visits in both parents' homes. She also met with both stepparents,...