Savell v. Manning

• Decision Date: 31 August 2021
• Docket Number: No. 2019-CA-01745-COA,2019-CA-01745-COA
• Parties: Ashley SAVELL, Appellant v. Jason MANNING, Appellee
• Court: Mississippi Court of Appeals

325 So.3d 1208

Ashley SAVELL, Appellant

v.Jason MANNING, Appellee

No. 2019-CA-01745-COA

Court of Appeals of Mississippi.

August 31, 2021

ATTORNEY FOR APPELLANT: JEFFREY BIRL RIMES

ATTORNEY FOR APPELLEE: JASON MANNING (PRO SE)

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

WILSON, P.J., FOR THE COURT:

¶1. Jason Manning and Ashley Savell are the parents of one child, Allen,¹ who was born in 2017. Jason and Ashley have never been married, and Jason was not listed on Allen's birth certificate. A few months after Allen's birth, Jason filed a complaint to establish paternity and seeking custody of Allen. Ashley answered, admitted Jason's paternity, and filed a counterclaim for custody and child support. The chancellor granted Ashley temporary physical and legal custody and Jason supervised visitation. Jason later filed four contempt petitions against Ashley, alleging that she had repeatedly denied him visitation with Allen. Ashley also filed two contempt petitions against Jason.

¶2. Following a trial, the chancellor awarded physical custody of Allen to Ashley, joint legal custody to Ashley and Jason, and visitation to Jason. The chancellor also found that Ashley was in criminal and civil contempt of court for denying Jason visitation, awarded Jason attorney's fees, and sentenced Ashley to serve thirty days in jail. However, he suspended Ashley's sentence on the condition that she comply with the court's order regarding visitation. The chancellor found that Jason was not in contempt.

¶3. On appeal, Ashley alleges that the chancellor erred by (1) not appointing a guardian ad litem (GAL), (2) not finding Jason in contempt, (3) finding her in contempt, (4) conditioning the suspension of her sentence on her compliance with the court's orders, (5) not making additional findings to support his award to Jason of $2,400 in attorney's fees, (6) not providing for Allen's medical support in the final judgment, and (7) ordering the parties to "share[ ]" Allen's school and extracurricular expenses "in proportion to the parties' incomes." We find no error with respect to issues (1) through (5), but we remand the case for clarification regarding Allen's medical, school, and extracurricular expenses. We also direct the chancellor to amend the final judgment to clarify that Ashley has physical custody and that the parties share joint legal custody.

FACTS AND PROCEDURAL HISTORY

¶4. Ashley gave birth to Allen in July 2017. Allen's father was not identified on the birth certificate. In September 2017, Jason filed a complaint to establish paternity and for custody of Allen. Ashley answered and filed a counterclaim for custody and child support.

¶5. Following allegations of drug use, the chancellor ordered both parties to take drug tests. Jason tested positive for marijuana, while Ashley tested negative for all substances. The chancellor also orally granted Jason temporary supervised visitation.

¶6. In November 2017, Jason filed a petition alleging that Ashley was in contempt for failing to follow a temporary visitation schedule set by the chancellor. The chancellor had granted Jason limited supervised visitation during a hearing in October, but the hearing was not transcribed, and the chancellor did not immediately enter a written order regarding visitation. In her response, Ashley admitted that she had denied Jason visitation but disputed Jason's understanding of the chancellor's order. She also claimed that Jason had refused to submit to supervision. Ashley also filed a motion for temporary legal and physical custody of Allen.

¶7. In December 2017, the chancellor entered a temporary order granting Jason up to two hours of supervised visitation at least once per week. In January 2018, the chancellor held a hearing on Ashley's motion for temporary custody. Jason did not appear at the hearing. Prior to the hearing, Jason had fired his attorney, and the chancellor had granted the attorney's motion to withdraw. Following the hearing, the chancellor granted Ashley temporary legal and physical custody of Allen while leaving in place Jason's right to supervised visitation. The chancellor also ordered Jason to pay child support. Jason later filed a motion to set aside or modify the temporary order, claiming that he had not been aware of the hearing. In March 2018, the chancellor entered another temporary order granting Jason temporary supervised visitation every weekend from Friday to Sunday. The order named three possible supervisors for the visits.

¶8. A month later, Jason filed a petition for contempt against Ashley, in which he alleged that she had denied him visitation with Allen. In August 2018, Jason filed another petition for contempt, alleging that Ashley had continued to deny him visitation. Ashley admitted that she had refused Jason's attempts to exercise visitation but again claimed that Jason had refused to submit to supervision. She filed a counter-petition for contempt, alleging that Jason was not following the chancellor's order that all visits with Allen be supervised.

¶9. In September 2018, the chancellor entered a new temporary order. The chancellor stated that he had been "advised that the parties have reached an agreement with regard to the [c]ontempt issues," and he did not rule on their pending petitions for contempt. He also granted Jason unsupervised visitation every other weekend from Friday to Sunday.

¶10. Less than one month later, Jason filed another petition for contempt, again alleging that Ashley had denied him visitation. Ashley admitted that she had refused visitation, and she requested the appointment of a GAL. She alleged that Jason had "failed to provide a safe environment for [Allen] during his visitation" and said that Allen was in "poor physical condition" when he returned from visitation. She also alleged that Allen had been "exposed to an unsafe environment from another family member" during Jason's visitation and that Jason had refused to address that concern with her. Ashley provided no additional details regarding these allegations.

¶11. Ashley later contacted Jones County Child Protective Services (CPS) and made allegations of abuse and neglect against Jason. She also told Jason that she would not allow him to have visitation until CPS closed its investigation. The chancellor issued a subpoena for CPS's records and reviewed them in camera.

¶12. In January 2019, Ashley filed another petition for contempt, alleging that Jason had admitted in a deposition that he had failed to comply with the requirements of supervised visitation under prior court orders. She also alleged that Jason had threatened and harassed her and had not informed her of his new address or Allen's whereabouts during his visitation. Two weeks later, the case went to trial on the issues of custody, visitation, and support and the parties' petitions for contempt.

¶13. Jason testified that he had three children, including a thirteen-year-old son, Abraham, who lived with him. A paternity test established that he was Allen's father, but he said that Ashley had not paid her half of the cost of the paternity test, despite a court order to do so. He testified that he was uncertain of the state of Allen's health because Ashley refused to tell him the name of Allen's doctor. He said that he had received a list of Allen's allergies, but Ashley would not share any medical records with him.

¶14. He testified that Ashley had denied him his scheduled visitation on nine different occasions from May to September 2018. Following a hearing on September 13, Ashley had allowed his scheduled visitation on September 14-16, but she refused to allow him any visitation since that time.

¶15. Jason testified that when Ashley denied him visitation, she would say that Allen was sick or reference the CPS investigation. Ashley also told Jason that her "attorney was aware of the situation" and knew "the reason" that she was denying visitation. In another message, Ashley told Jason he could not exercise visitation because of "[c]ertain situations involving [Abraham] that ha[d] occurred recently in a public setting." Ashley stated that she would not allow visitation "unless [Jason could] assure [her] that [Abraham would] not be anywhere around [Allen] for the entire weekend." However, neither the chancellor nor CPS had ever instructed Jason to prevent contact between Abraham and Allen.

¶16. Jason testified that he had been Abraham's sole caregiver since Abraham was five. Abraham has been diagnosed with Attention Deficit Disorder

and Asperger syndrome. Jason also has a daughter, Carly, but he is not listed on her birth certificate, does not pay child support for her, and does not see her often. Jason testified that he had not been able to establish paternity or seek visitation with Carly because her mother moves frequently.

¶17. At the time of trial, Jason had been employed at an apartment complex for about three years. He said that he had extensive support from his immediate family, including his mother and two sisters. He had moved into a three bedroom, two bathroom house. He admitted that he was living with his girlfriend and that they had been dating for only a few months. He also admitted that he had not provided his new address to Ashley or the court. He testified that he was in good health and attended church regularly.

¶18. Ashley testified that she lived with Allen and her older son and that her only income was child support from Jason and her older son's father and occasional assistance from family members. At the time of trial, she had been unemployed for over a year. She testified that she was looking for work but would need childcare for her sons if she found a job.

¶19. She testified that she denied Jason visitation when Allen was sick because "[w]hen a child is sick, they want their mother." She admitted that she had not complied with the chancellor's visitation orders. She said that the chancellor could not "see what [she saw] going on." However, she never filed a ...