Strait v. Lorenz, 2013–CA–00334–COA.

• Decision Date: 06 January 2015
• Docket Number: No. 2013–CA–00334–COA.,2013–CA–00334–COA.
• Citation: 155 So.3d 197
• Parties: Travis STRAIT, Appellant v. Kristy LORENZ, Appellee.
• Court: Mississippi Court of Appeals

155 So.3d 197

Travis STRAIT, Appellant

v.Kristy LORENZ, Appellee.

No. 2013–CA–00334–COA.

Court of Appeals of Mississippi.

Jan. 6, 2015.

William Paul Starks II, Starkville, attorney for appellant.

Matthew Daniel Wilson, Starkville, attorney for appellee.

Before GRIFFIS, P.J., CARLTON and JAMES, JJ.

Opinion

GRIFFIS, P.J., for the Court:

¶ 1. Travis Strait appeals the chancellor's judgment that modified custody, found him in contempt, and awarded attorneys' fees. We find no error and affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. Travis and Kristy Lorenz were married in 2003. They had one child together, Jane,¹ born May 31, 2002.

¶ 3. On December 19, 2005, Travis and Kristy were granted an irreconcilable differences divorce. According to their agreed divorce judgment, Travis and Kristy had joint legal custody of Jane, Travis had primary physical custody of Jane, Kristy was entitled to certain visitation, and Kristy owed child support.

¶ 4. Less than two months after the divorce, on January 31, 2006, Kristy filed a petition for a modification of custody. On April 11, 2006, the chancellor entered an order that found Kristy failed to meet her burden of proof and denied the petition.

¶ 5. On August 8, 2006, Kristy filed her second petition for a modification of custody. She alleged that Travis had sexually abused Jane. The chancellor denied the modification. The judgment was appealed to the Mississippi Supreme Court, and it was affirmed. See Lorenz v. Strait, 987 So.2d 427, 435 (¶ 47) (Miss.2008).

¶ 6. On March 16, 2009, Kristy filed her third petition for modification of custody. To support this petition, Kristy alleged that Travis had denied her visitation. The chancellor found that “neither party [had] tried as they should” to ensure Kristy's visitation with Jane and denied the petition. However, the chancellor modified Kristy's visitation schedule because Travis had moved to Hawaii, and due to the fact that Hawaii has an eleven-month school schedule.

¶ 7. On June 15, 2010, Kristy filed her fourth petition to modify custody and included a claim that alleged Travis was in contempt. In response, Travis filed a counterclaim for an increase in child support and alleged that Kristy was in contempt. The chancellor denied Kristy's motion, entered a judgment against Kristy for past-due child support, and modified the visitation schedule.

¶ 8. On April 21, 2011, Travis filed a petition in Hawaii for a protection order. Travis alleged that Kristy's husband, Aaron Lorenz, had molested Jane. A temporary restraining order (TRO) was entered against Kristy; the TRO was later removed due to “insufficient evidence.”

¶ 9. On May 26, 2011, Kristy filed a fifth petition to modify custody. In this petition, Kristy alleged that Travis “continued to thwart” her visitation rights with Jane and that he had sexually abused Jane. This is the petition that began the proceedings that we consider in this appeal.

¶ 10. By May of 2011, Travis had moved to California. On June 16, 2011, he filed a legal action in California for a temporary restraining order against Kristy.

¶ 11. On July 11, 2011, Travis responded to Kristy's petition by filing a motion to dismiss for lack of jurisdiction and forum non conveniens. Travis also moved to appoint a guardian ad litum (GAL). The chancellor denied Travis's motion to dismiss, and declined to dismiss on grounds of forum non conveniens.

¶ 12. In addition, the chancellor entered an agreed order that appointed Lee Ann Turner as a GAL, to investigate the allegations of sexual abuse. The chancellor ordered the GAL to make findings and recommendations regarding custody. The chancellor also ordered Travis to bring Jane to Mississippi in April 2012, so that she could be interviewed by the GAL and attend “therapeutic counseling” sessions with Dr. Criss Lott.

¶ 13. A hearing on the merits was held on July 26 through 27, 2012. The final day of the hearing was scheduled for September 20, 2012 (due to the availability of Travis's counsel).

¶ 14. On August 20, 2012, before the hearing resumed, Kristy filed an emergency motion for immediate temporary custody. Kristy sought to enroll Jane in the Lowndes County school system for the 2012–13 school year. Travis objected, and he filed a motion to remove the GAL. However, due to the approaching school year and the likelihood of modification of custody (based on the GAL's recommendation in her preliminary report), the chancellor found custody should be temporarily transferred to Kristy.

¶ 15. On September 20, 2012, the trial resumed. The GAL presented her findings. Then, on October 22, 2012, Travis filed a motion that alleged the GAL was biased and argued that the GAL's bill for $12,586.81 was excessive.

¶ 16. On November 1, 2012, the chancellor entered a final judgment. The chancellor granted Kristy custody of Jane, ordered Travis to pay child support and Jane's health insurance, and denied Travis's objections to the GAL's report and fees. As a result, Travis was ordered to pay $8,391.21—two-thirds of the GAL's fees, based on the agreed order.

¶ 17. On November 7, 2012, Kristy filed a motion to alter or amend the judgment. Kristy asked the chancellor to address the issues of contempt and attorney's fees, which were not addressed in the November 1 opinion. Travis also filed a motion for a new trial.

¶ 18. On December 21, 2012, the chancellor entered an order that denied Travis's motion for a new trial and granted Kristy's motion to alter or amend. The chancellor found Travis was in contempt and ordered Travis to pay $10,000 in attorney's fees and an additional $1,000 toward the GAL's fees. Travis has now appealed the chancellor's decisions.

STANDARD OF REVIEW

¶ 19. “Findings of fact made by a chancellor may not be set aside or disturbed upon appeal if they are supported by substantial, credible evidence.” A.M.L. v. J.W.L., 98 So.3d 1001, 1013 (¶ 23) (Miss.2012) (quoting Johnson v. Gray, 859 So.2d 1006, 1012 (¶ 32) (Miss.2003) ). Matters involving child custody are within the sound discretion of the chancellor. Sturgis v. Sturgis, 792 So.2d 1020, 1023 (¶ 12) (Miss.Ct.App.2001) (citation omitted). This Court will not disturb a chancellor's findings unless the chancellor abused his discretion, was manifestly wrong, or clearly erroneous, or applied an erroneous legal standard. Sanderson v. Sanderson, 824 So.2d 623, 625 (¶ 8) (Miss.2002). Legal questions are reviewed de novo. Russell v. Performance Toyota, Inc., 826 So.2d 719, 721 (¶ 5) (Miss.2002).

ANALYSIS

I. Whether it was error to modify custody.

¶ 20. To modify child custody, “the non-custodial party must prove: (1) that a substantial change in circumstances has transpired since issuance of the custody decree; (2) that this change adversely affects the child's welfare; and (3) that the child's best interest mandates a change of custody.” A.M.L., 98 So.3d at 1013 (¶ 24) (quoting Mabus v. Mabus, 847 So.2d 815, 818 (¶ 8) (Miss.2003) ). The chancellor must consider the “totality of the circumstances.” Id. (quoting Ash v. Ash, 622 So.2d 1264, 1266 (Miss.1993) ). If an adverse substantial or material change is found, the chancellor must then perform an Albright analysis to determine whether modification of custody is in the child's best interest. White v. White, 26 So.3d 342, 351 (¶ 28) (Miss.2010) (citing Albright v. Albright, 437 So.2d 1003, 1005 (Miss.1983) ).

1. Material Change in Circumstances

¶ 21. Here, the chancellor found that Travis's interference with Kristy's visitation rights was a material change in circumstances. We note that “[v]isitation issues should not normally be considered by the lower court when hearing a plea for custody modification [.]” Ellis v. Ellis, 952 So.2d 982, 994 (¶ 27) (Miss.Ct.App.2006). Contempt orders should generally be enforced “through incarceration rather than resorting to a change of custody[.]” Id. (quoting Ash, 622 So.2d at 1266 ). However, “the supreme court has identified that interference with visitation may constitute a material change in circumstances given sufficient severity.” Id. Such a finding should be reserved for extraordinary circumstances. Id.

¶ 22. The issue with visitation first surfaced in March 2009, when Kristy filed a petition to modify child custody. At that point, Kristy had not seen Jane since Travis moved to Hawaii a year earlier in 2008. By the time of the hearing on the motion in July 2009, Kristy had not seen Jane in over fifteen months. The chancellor's order, dated August 24, 2009, found this “alarming.” The chancellor also expressed concern over Travis's “disinterest in [Jane] seeing her mother.” Nevertheless, the chancellor went on to find “neither party [had] tried as they should to see that [Jane] saw her mother.” The chancellor held that the facts “approache[d]” a finding of a material change in circumstances, but did not “rise[ ] to that level.” The chancellor implored the parties “to strictly follow the visitation schedule” set out in the order.

¶ 23. From July 2009 to October 2010, there was no visitation. This led Kristy to file another petition for change of custody and for contempt. In October 2010, the chancellor denied the contempt petition, but entered a judgment that modified the visitation schedule.

¶ 24. Kristy exercised visitation with Jane over Christmas break in 2010. Then, Kristy attempted to contact Travis in April 2011, first by certified mail and then by email, about her 2011 summer visitation and Jane's flight schedule. Travis did not respond. Instead, Travis filed a petition for a restraining order in Hawaii. Travis alleged that sexual abuse had occurred over Christmas in 2010. Travis explained that he was unaware of the abuse until April 19, 2011, and he contacted the Mississippi Department of Human Services (DHS) on April 20, 2011.² In response, Kristy filed her fifth petition to modify custody in May 2011.

¶ 25. From April 2011 until April 2012, Travis prevented all communication between Kristy and Jane. Travis concedes this fact. He argues, however, that he had a “g...