Riley v. Heisinger

• Decision Date: 25 August 2020
• Docket Number: NO. 2019-CA-00211-COA,2019-CA-00211-COA
• Citation: 302 So.3d 1243
• Parties: Priscilla RILEY, Appellant v. Adam HEISINGER, Appellee
• Court: Mississippi Court of Appeals

302 So.3d 1243

Priscilla RILEY, Appellant

v.Adam HEISINGER, Appellee

NO. 2019-CA-00211-COA

Court of Appeals of Mississippi.

Filed August 25, 2020

ATTORNEY FOR APPELLANT: WILLIAM STACY KELLUM III, Jackson

ATTORNEY FOR APPELLEE: J. DOUGLAS FORD, Columbus

EN BANC.

WILSON, P.J., FOR THE COURT:

¶1. This is the second appeal in this dispute between Priscilla Riley and Adam Heisinger regarding the custody of their daughter, B.H.¹ In the first appeal, we reversed and remanded the case to the chancery court for a new Albright² analysis. Heisinger v. Riley , 243 So. 3d 248 (Miss. Ct. App. 2018).

¶2. After the first trial in the case and while the first appeal was pending, Adam filed two contempt petitions against Priscilla. The parties agreed to hold those issues in abeyance until the first appeal was decided. After this Court's decision, Adam filed a third contempt petition. After a new trial on remand, the chancellor found that Priscilla was in contempt for failing to comply with prior court orders and awarded Adam a judgment for attorney's fees. In addition, after a new Albright analysis, the chancellor found that it was in B.H.'s best interest for Adam to have custody. Accordingly, the chancellor granted Adam's petition to modify custody and awarded him custody of B.H. with Priscilla to have visitation.

¶3. Priscilla appeals and raises five issues. First, she argues that the chancellor failed to follow the instructions of this Court's prior decision because he did not focus on the circumstances at the time of the hearing on remand. Second, she argues that the chancellor clearly erred by finding that there had been a material change in circumstances warranting a modification of custody. Third, she argues that the chancellor clearly erred by determining that the Albright factors favor Adam. Fourth, she argues that the chancellor should have appointed a guardian ad litem. Fifth, she argues that the chancellor erred by finding her in contempt and awarding Adam attorney's fees. For the reasons discussed below, we find no error and affirm.

FACTS AND PROCEDURAL HISTORY³

¶4. Adam and Priscilla met while both were in the military and stationed in Virginia. Adam was an Air Force flight surgeon, and Priscilla was in the Navy. In 2011, Priscilla became pregnant and believed that Adam might be the father. Priscilla later moved to Iowa, and B.H. was born in January 2012. Adam was deployed overseas when B.H. was born. He returned to the United States in May 2012 and filed a petition in Iowa for DNA testing and to determine paternity and custody. Adam was then deployed again, which delayed the completion of DNA testing. In May 2013, DNA testing confirmed that Adam was B.H.'s father, and he met B.H. for the first time the next month.

¶5. In a September 2013 order, the Iowa court determined custody and visitation. The court awarded Adam and Priscilla joint legal custody, awarded physical custody to Priscilla, and awarded visitation to Adam. At the time, Adam was in a residency program in Ohio. In January 2014, Priscilla married Shawn Riley, who was also in the Navy.

¶6. In November 2014, the Iowa court found Priscilla in contempt for denying Adam visitation with B.H. The court sentenced Priscilla to thirty days in jail, which was suspended on the condition that she comply with a new visitation schedule. The court granted Adam additional visitation to make up for time he had lost because of Priscilla's actions and modified his visitation schedule to allow him two weeks of visitation during each eight-week period. Around the same time, Priscilla, Shawn, and B.H. moved to Meridian.

¶7. In August 2015, B.H., who was then three-and-a-half years old, visited Adam in Ohio. Adam had to work during part of the visit, and he left B.H. in the care of a babysitter, Mandy. During the visit, Adam noticed small burn marks on B.H.'s finger and forearm. He mentioned the marks to Mandy, and she pointed out another mark she had noticed on B.H.'s buttock. When Adam asked B.H. about the marks, she said she had been burned on the stove or oven while Shawn was cooking. Adam decided to take B.H. to the hospital to document the burns, and a doctor concluded that the burns were in the latter stages of healing. Hospital records reflect that B.H. told hospital staff that she had been burned at Priscilla's house.

¶8. Priscilla and Shawn travelled to Ohio to pick up B.H. at Adam's house. Priscilla alleged that she and Shawn discovered all three burn marks while Shawn was still in the process of putting B.H. in their car outside Adam's house. According to Priscilla, they asked B.H. about the marks, and she told them that she had been burned at their home in Meridian. Priscilla decided to take B.H. to the local police department to file a report about the burns. B.H. also told the police that she had been burned in Meridian. Priscilla also took B.H. to the hospital for treatment, and the records from this visit to the hospital are similar to those from her prior visit with Adam. After she returned home, Priscilla reported to the Mississippi Department of Child Protective Services (MDCPS) that she suspected that B.H. had been abused and neglected while in Adam's care.

¶9. Priscilla unilaterally denied Adam his next scheduled visitation based on the burn marks. MDCPS, in coordination with Ohio's child protection agency, investigated Priscilla's allegations and found them to be "unsubstantiated." Nonetheless, Priscilla filed a petition in the Lauderdale County Chancery Court to enroll the Iowa judgment and to suspend and/or modify Adam's visitation with B.H. Priscilla also continued to deny Adam his visitation with B.H.

¶10. Adam filed an answer and a counterclaim to enforce the Iowa judgment, to modify custody, and to find Priscilla in contempt. Due to Priscilla's allegation of abuse and neglect, the chancellor appointed attorney Frances Stephenson to serve as a guardian ad litem (GAL). Because Adam had been denied visitation and had not seen B.H. for several months, the GAL first met with B.H. and Adam in her office. Because B.H. was uncomfortable around Adam, the GAL recommended that B.H. receive counseling from a child psychologist. The chancellor adopted the GAL's recommendation and ordered B.H. to see Dr. Jennifer Whitcomb. The chancellor also ordered the GAL to continue working with B.H., Priscilla, and Adam to determine if and how Adam's visitation with B.H. should resume.

¶11. Dr. Whitcomb and the GAL determined that Adam should have visitation with B.H. in Meridian first, and, if it went well, B.H. would go to Ohio with Adam for a week-long visit. The Meridian visitation ultimately was a success, and B.H. resumed regular visitation with Adam in Ohio.

¶12. The first trial in this case was held in September 2016. Adam requested visitation with B.H. while he was in Meridian for the trial, but Priscilla refused. Priscilla also refused to allow any post-trial visitation. She told Adam that she would not allow further visitation without a specific court order.

¶13. At trial, Priscilla claimed that she never intended to accuse Adam personally of burning B.H., but she suspected that the burns had occurred while B.H. was in Mandy's care, and she faulted Adam for leaving B.H. with Mandy. Priscilla claimed that she had denied Adam visitation "[t]o protect [B.H.] from being harmed further." Priscilla asked that Adam only be allowed supervised visitation with B.H. in Mississippi.

¶14. Adam denied that B.H. was burned while she was in Ohio. He believed that B.H. was burned at Priscilla's house in Meridian, as B.H. had stated on multiple occasions. Adam also testified about Priscilla's repeated denials of his court-ordered visitation.

¶15. Adam acknowledged that B.H. and Priscilla were close, but he testified that Priscilla was not a good parent because she was trying to exclude him from B.H.'s life. Adam maintained that it would be in B.H.'s best interest for him to have physical custody.

¶16. Dr. Whitcomb testified as an expert in child development. She testified that B.H. denied that Adam had ever hurt her in any way. Dr. Whitcomb concluded that B.H. had a good relationship with Adam, and she had no concerns about B.H.'s safety with Adam in Ohio. Dr. Whitcomb reported that Priscilla cancelled or failed to show up for two of B.H.'s court-ordered counseling sessions, and she opined that Priscilla's continued interference with Adam's relationship with B.H. was tantamount to "emotional abuse." Dr. Whitcomb also suspected that Priscilla had attempted to coach B.H. to accuse Adam of burning her.

¶17. In November 2016, the chancellor entered the first final judgment in this case. The chancellor found that Adam had not abused or neglected B.H. Therefore, he denied Priscilla's petition to suspend visitation or to require supervised visitation. The chancellor also denied Priscilla's request to modify Adam's visitation under the Iowa court order.

¶18. The chancellor next found Priscilla in contempt for willfully violating the Iowa court order by denying multiple visitation requests by Adam. The chancellor found that Priscilla's contempt warranted incarceration, but he suspended her incarceration on several conditions, including her compliance with the court-ordered visitation schedule and continued cooperation in B.H.'s counseling sessions with Dr. Whitcomb.

¶19. The chancellor found that there had been a material change in circumstances related to B.H.'s custody—namely, Priscilla's persistent interference with Adam's visitation and relationship with B.H. The chancellor also found that this change had adversely affected B.H. because Priscilla's misconduct had undermined B.H.'s relationship with Adam. However, after considering the Albright factors, the chancellor found that it was in B.H.'s best interest to remain in Priscilla's physical custody. Adam appealed.

¶20. After the first trial, Adam filed a petition for contempt, and subsequently he filed an amended petition for contempt. Adam alleged...