Schmidt v. Schmidt

• Decision Date: 10 May 2022
• Docket Number: 2020-CA-01253-COA
• Parties: John Benjamin SCHMIDT, Appellant v. Leslie Renee SCHMIDT (Gall), Appellee
• Court: Mississippi Court of Appeals

339 So.3d 163

John Benjamin SCHMIDT, Appellant

v.Leslie Renee SCHMIDT (Gall), Appellee

NO. 2020-CA-01253-COA

Court of Appeals of Mississippi.

May 10, 2022

ATTORNEY FOR APPELLANT: GRADY MORGAN HOLDER, Gulfport

ATTORNEY FOR APPELLEE: MICHAEL B. HOLLEMAN, Gulfport

BEFORE CARLTON, P.J., GREENLEE AND McDONALD, JJ.

McDONALD, J., FOR THE COURT:

¶1. John Schmidt and Leslie Schmidt-Gall were divorced in 2015 and shared joint physical and legal custody of their two minor children. On August 21, 2018, John filed a petition for modification of child custody, requesting sole physical custody of both children. Leslie counterclaimed, arguing that she should be given sole physical custody. On October 21, 2020, the chancery court granted Leslie sole physical custody of the children. On November 12, 2020, John appealed, arguing the following issues: (1) whether the chancery court erred in finding that there was a material change in circumstances entitling Leslie to sole physical custody; and (2) whether the chancery court erred in its application of the Albright factors. After a thorough review of the briefs of the parties and the record, we affirm the chancellor's judgment of modification of custody.

Statement of the Facts and Procedural History

¶2. John and Leslie were married on August 13, 2007, in Gulfport, Mississippi. During the marriage, John and Leslie had two children, a girl, A.S., born in 2008, and a boy, C.S., born in 2013.¹ Both Leslie and John were employed with the Navy. Leslie was a logistics analyst, and John was a military contractor. The couple separated on or about November 15, 2014, and did not cohabit thereafter. John filed a complaint for divorce and for temporary relief in the Harrison County Chancery Court on January 27, 2015, on the grounds of habitual cruel and inhuman treatment, or alternatively, adultery and irreconcilable differences. John requested custody and control of the minor children and that Leslie be required to pay a reasonable sum each month in child support. Leslie answered and counterclaimed for divorce and custody as well.

¶3. The parties later withdrew their fault grounds, and the chancery court entered a final divorce judgment on the grounds of irreconcilable differences on July 14, 2015. The judgment incorporated a property settlement and child custody agreement that the parties had executed. The judgment provided that Leslie and John share joint physical and legal custody of their minor children until August 1, 2018, or until either party moved 100 miles from Gulfport, Mississippi. The agreement specifically stated:

CUSTODY: By agreement of the parties, the parties shall be and hereby are awarded joint legal custody of their minor children and they shall be awarded joint physical custody. Joint legal custody means that the parents or parties share the decision-making rights, the responsibilities and the [sic] authority relating to the health, education and welfare of the minor children. An award of joint legal custody obligates the parties to exchange information concerning the health, education, and welfare of the minor children, and to confer with one another in the exercise of decision-making rights, responsibilities and authority.

Handwritten after the last sentence of this paragraph was the following:

The joint physical award shall continue until the first of these events occur: August 1, 2018 or either party moves more than one hundred (100) miles from Gulfport, MS. Upon the first occurring event, either party may return to court to adjudicate as same shall constitute a substantial and material change in circumstances adverse to the children so as to warrant a modification upon proper complaint and service of process.

¶4. Pursuant to the judgment, A.S. and C.S. lived two weeks during each month with John and two weeks with Leslie. After the divorce, Leslie continued to live in Gulfport, Mississippi, and A.S. attended school in Harrison County. Leslie later moved to Long Beach, Mississippi, and purchased a house there in 2016. Leslie enrolled the children in Long Beach public schools because she believed Long Beach had a better school system. In March 2018, Leslie married Seth Gall. Seth was also in the Navy and had three children, ages nineteen, fifteen and twelve. Seth's fifteen-year-old lived with Leslie and Seth, and the other two children lived in California with their mother.

¶5. After the divorce, in September 2015, John took a civilian job in New Orleans, which was about an hour and a half from his home in Gulfport. This job location required John to leave home around 4 a.m. each morning. During his two-week custody periods, a daycare worker would pick up the children from John before 4 a.m. and keep them with her until the daycare opened for the younger child, C.S. She then took the older child, A.S., to school. She also kept the children after daycare and after school until John returned in the evening. When the daycare worker was no longer able to do this, a neighbor began getting the children on John's workdays. This arrangement with the neighbor lasted for two weeks.

¶6. When Leslie found out about the arrangement, she was concerned about the children's safety. So beginning in December 2015 until sometime in February 2018, Leslie picked up the children during John's custodial period just as the daycare worker and neighbor had previously done. She would then meet John on or near Interstate I-10 to exchange the children in the afternoon.

¶7. In 2018, John purchased a home in Long Beach in the same neighborhood as Leslie's house. John married Clarke Zoe Schmidt in June 2018, and they had one child together. Clarke had two children from a prior marriage. In the fall of 2018, John was deployed to Dubai after being stationed in Virginia for pre-deployment training. His deployment was scheduled to last from October 19, 2018, until May 2019.

¶8. Prior to his deployment, on August 21, 2018, John filed a petition for citation for contempt² against Leslie and a motion to modify the divorce judgment in the Harrison County Chancery Court. In his petition for modification, John stated that there had been a material change and substantial change in circumstances since the initial judgment was entered. Although John was being deployed, he requested that the child custody agreement be modified to grant him "paramount care, custody and control of the minor children."³ Further, John requested that Leslie be required to pay child support, that her visitation with the children be supervised, and that the telephone visitation schedule be modified. Finally, John pleaded that if the court did not grant him physical and legal custody of the children due to his deployment, then the court should allow the children to stay with his current wife, Clarke, while he was deployed.

¶9. After hearing John's petition and motion on October 9, 2018, the chancery court issued a temporary order on November 9, 2018, which ordered (1) that Leslie be given temporary physical custody until trial because John had been deployed for training in Virginia and was anticipated to be in Dubai from October 19, 2018, through the end of May 2019; (2) that Clarke has visitation on certain weekends from Friday at 6 p.m. to Sunday at 6 p.m.; (3) that John pay child support of $993 monthly, effective on October 1, 2018, and on the first day of each month thereafter; (4) that John have the right to one telephone or video call with each child per day, not to exceed fifteen minutes each; and (5) that if there was a dispute between the primary care physician and urgent care physician concerning care needed for the children, then the primary care physician would have the final say.

¶10. On June 28, 2019, after he returned from his deployment, John filed a motion for modification of the temporary order and other relief.⁴ On July 23, 2019, Leslie answered John's motion for modification and contempt and filed a counter-complaint for modification and contempt. Leslie admitted there had been a substantial and material change in circumstances that warranted modification of custody but claimed that she should be awarded physical custody of the minor children. Leslie denied all allegations of John's petitions for contempt and modification. She also denied that he was entitled to any relief.

¶11. Leslie stated that it would be in the best interest of the minor children that physical custody be awarded to her, that John be awarded reasonable visitation rights, and that the court should award her reasonable child support. She pleaded that John should provide for the health, dental, ocular care, and college education for the minor children and that he be required to carry life insurance for the benefit for the children. Leslie also argued that the court should find John in contempt for unilaterally terminating his support payments⁵ and award her reasonable attorney's fees and costs.

¶12. The chancery court entered an amended temporary order on August 30, 2019, finding that Leslie should continue to have physical custody until trial and that John have the specified visitation schedule. The court ordered John to continue to pay child support on the first day of each month but reduced the amount to $706 monthly, effective August 1, 2019. Additionally, during the periods where one parent had custody or visitation, the other parent had the right to unmonitored telephone or video calls nightly before 7 p.m. for fifteen minutes. The Court also ordered that John would be responsible for transportation of the children to and from visitation.

¶13. On January 7, 2020, Leslie filed an answer to John's original contempt and modification petition, generally denying John's allegations in them.

¶14. Prior to trial, Seth was deposed because he was scheduled to be deployed to Guam at the time of the trial. According to Seth, John berated Leslie by calling her a horrible mother and calling her horrible names such as b****, c***, and "psycho." Seth also testified that ...