Myers v. Myers

• Decision Date: 20 July 2021
• Docket Number: NO. 2020-CA-00490-COA,2020-CA-00490-COA
• Parties: Dena MYERS, Appellant v. Christopher MYERS, Appellee
• Court: Mississippi Court of Appeals

324 So.3d 808

Dena MYERS, Appellant

v.Christopher MYERS, Appellee

NO. 2020-CA-00490-COA

Court of Appeals of Mississippi.

July 20, 2021

ATTORNEY FOR APPELLANT: ABBY GALE ROBINSON, Jackson

ATTORNEY FOR APPELLEE: MICHAEL ADELMAN, Hattiesburg

BEFORE WILSON, P.J., GREENLEE AND WESTBROOKS, JJ.

GREENLEE, J., FOR THE COURT:

¶1. Dena Myers ("Dena") appeals the Lamar County Chancery Court's judgment ordering her ex-husband, Christopher Myers ("Chris"), to attend counseling sessions with their son ("NM") and reinstating visitation with their twin daughters ("ALM" and "AUM").¹ Finding no reversible error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2. Chris and Dena were granted a divorce in February 2016. Dena was awarded physical custody of their son, NM, and twin daughters, ALM and AUM, and Chris was granted visitation. The parties shared legal custody.

¶3. Prior to Chris and Dena's divorce, NM began seeing Josh Hamm, a licensed professional counselor with Connections Hattiesburg Clinic. During a counseling session, NM told Hamm that Chris had shaken and slapped him when he had become frightened of wasps while hunting. In November 2015, Hamm filed a report with the Mississippi Department of Child Protection Services (CPS), alleging that Chris had emotionally abused/neglected and physically abused NM. Chris admitted to shaking NM but explained that he was trying to prevent NM from jumping out of a deer stand, presumably to get away from the wasps. Ultimately, CPS determined that the abuse allegations were unsubstantiated.

¶4. After Chris and Dena's divorce, in August 2016, Dena and NM reported to law enforcement that Chris had bruised NM while disciplining him. This resulted in another CPS report being filed against Chris alleging that he had physically abused NM. These allegations were unsubstantiated as well.

¶5. That same month, Chris filed a CPS report against Dena alleging physical neglect of the children, emotional abuse/neglect of the children, and exploitation of NM. Chris asserted, among other things, that Dena had violated the child-custody agreement and that Dena was hindering his relationship with NM. Ultimately, the allegations were unsubstantiated.

¶6. In September 2016, Dena filed a "Petition for Emergency Modification of Visitation." Attached to the petition was a letter from Hamm (NM's counselor). The letter referenced the alleged abuse that Hamm had previously reported to CPS. Hamm stated that NM was "extremely fearful" of Chris, and "due to the safety concerns for [NM], [he] believe[d] it would be in [NM's] best interest to cease all physical contact with [Chris] until he [could] seek help." As a result, the court temporarily suspended visitation between Chris and NM.

¶7. Around that time, Chris filed a CPS report alleging that Dena had physically neglected and emotionally abused/neglected NM. According to Chris, Dena had misplaced a gun in her house, and he was concerned that NM would find the gun. Ultimately, the allegations were unsubstantiated.

¶8. In October 2016, the court temporarily ordered Chris's visitation to be supervised and appointed a guardian ad litem (GAL).

¶9. Several months later in May 2017, Dena reported to law enforcement that she suspected that Chris had sexually abused ALM. Dena stated that she had noticed ALM positioning Barbie dolls on top of each other and rubbing stuffed animals between her legs. Additionally, Dena reported that ALM said that she did not want to visit Chris anymore and suggested that he had hurt her vagina.

¶10. As a result, the children were referred to Kids Hub Child Advocacy Center for forensic interviews. During eleven-year-old NM's interview, he stated that Chris had slapped him, punched him, and grabbed him by the throat and shoved him into a wall, and that Chris "did something to his sister too." According to NM, Chris had taken ALM into a room and locked the door. NM stated that he knew that the door was locked because he tried to open it. According to NM, when ALM came out of the room, she was crying, holding her vagina, and saying Chris had hurt her. NM stated that this happened at least five times. NM told the interviewer that Chris was probably molesting ALM and that his mother thought something was going on. NM further stated that he thought that Chris was "messing with" or "playing around with [ALM's vagina]."

¶11. With respect to four-year-old ALM, the interviewer noted that her cognitive abilities seemed slightly below her age, and she was unable to understand many questions including questions about touches. ALM was asked "if anyone ha[d] ever touched her in a way [that was] not okay," and she mentioned Dena. Then she said that Chris had touched her with his hand and pointed to every part of the body on the diagram. When asked what Chris did with his hand, ALM responded, "I don't know." When asked if anyone had touched her in a place she did not like or that they were not supposed to touch, ALM responded, "No." The interviewer then asked ALM how it felt when Chris touched her vagina, and ALM said it felt warm. Ultimately, Kids Hub found that the results of ALM's statement were inconclusive and that ALM did not disclose any abuse. In addition to reporting the alleged incident to the police, Dena also filed a CPS report regarding the sexual-abuse allegations. The allegations were ultimately unsubstantiated.

¶12. Around that time, Chris filed a "Petition for Modification of Final Judgment of Divorce and Dissolution of Order on Petition for Emergency Modification of Visitation," suggesting that Dena was mentally unfit to parent. Chris asserted that this constituted a material change in circumstances adverse to the children's best interests, and he requested physical custody of the children. Alternatively, Chris requested joint physical custody. Finally, Chris requested that the court change visitation from supervised to unsupervised.

¶13. In July 2017, a CPS report was filed against Chris and his father, Dale Myers, alleging that they had sexually abused ALM. The CPS report indicated that ALM began seeing Matthew and Ramona Wicht with The Cornerstone Group and that ALM had allegedly disclosed that Chris had touched her vagina and that Dale had touched her too. Ultimately, the allegations were unsubstantiated.

¶14. Several months later, in September 2017, the court entered another temporary order allowing Chris to have supervised visitation.

¶15. Less than two months after the court's order, Dena asserted in a responsive pleading that the abuse allegations against Chris constituted a material change in circumstances and requested physical and legal custody of the children. She further requested that Chris's visitation be restricted to supervised visitation only. A few months later, Dena filed a "Motion for Emergency Temporary Relief," alleging that NM had attempted to cause himself bodily harm in order to refrain from having to go to visitation. Attached to Dena's motion was another letter from Hamm, NM's counselor. The letter stated that NM was experiencing "extreme distress" and that it would be in NM's best interest to cease all physical contact with Chris at that time. In response, Chris asserted that Dena was in contempt for denying him visitation and intentionally alienating him from the children. The court temporarily suspended Chris's visitation but allowed him to communicate with the children through telephone and FaceTime.

¶16. In June 2018, Dr. Beverly Smallwood, a licensed psychologist with The Hope Center, conducted court-ordered psychological evaluations of Chris and Dena. Dr. Smallwood noted that Chris was somewhat defensive. She also noted that he had experienced significant distress over ongoing conflicts with Dena and the family situation. However, Dr. Smallwood concluded that Chris did not display any evidence of significant psychological difficulties.² During Dena's evaluation, Dena admitted that she did not want the children to have anything to do with Chris. She also admitted that she struggled with anxiety and experienced stress over matters that she could not control. She stated that she feared losing control or going crazy, and she admitted that she had "always been a little paranoid" and "prefer[red] the kids to be at home with [her]." Dr. Smallwood noted that Dena appeared to be "a bit obsessive in personality" and had some depression and anxiety that was exacerbated by the family situation but did not appear to affect her direct ability to parent. However, Dr. Smallwood noted that Dena experienced a great deal of underlying anger and resentment and that her "struggles may affect her perceptions and actions in this difficult family situation." Afterwards, the court entered another temporary order allowing Chris to have supervised visitation with ALM and AUM but suspended his visitation with NM. Additionally, the court appointed Amanda Heitmuller as the family counselor.

¶17. In August 2018, after the court's order allowing supervised visitation with ALM and AUM, another CPS report was filed alleging that Chris had sexually abused ALM. The report stated that ALM had complained about her butt hurting and that Dena stated that Chris had previously sexually abused ALM. However, ALM gave various reasons for her pain, such as she hurt herself on the slide, on the stairs, on the seesaw, and at the beach, and that a catfish stung her. Chris denied the allegations and stated that Dena was making his life "a living hell." The CPS caseworker noted that there were no signs of sexual abuse and that ALM did not admit to any sexual abuse. Ultimately, the allegations were unsubstantiated.

¶18. A few months later, in November 2018, Dena took ALM to Merit Health alleging that Chris had sexually abused ALM again. The CPS report noted that ALM was hesitant when she was asked if someone had touched her inappropriately, but she responded, "No." The CPS report did not indicate whether the reporter was Dena, but ALM allegedly informed the reporter after the...