Summers v. Gros
| Decision Date | 03 June 2021 |
| Docket Number | NO. 2019-CA-01550-SCT,2019-CA-01550-SCT |
| Parties | HALEY SUMMERS v. PATRICK GROS AND SHERRY GROS |
| Court | Mississippi Supreme Court |
HALEY SUMMERS
v.
PATRICK GROS AND SHERRY GROS
NO. 2019-CA-01550-SCT
SUPREME COURT OF MISSISSIPPI
June 3, 2021
DATE OF JUDGMENT: 10/02/2019
TRIAL JUDGE: HON. CARTER O. BISE
TRIAL COURT ATTORNEYS: JASON MICHAEL JOSEF SAMUEL CHRISTOPHER JOHNSON MICHAEL DEWAYNE WILSON, SR. HAROLD O. GRISSOM, JR. DIANNE HERMAN ELLIS
COURT FROM WHICH APPEALED: HANCOCK COUNTY CHANCERY COURT
ATTORNEY FOR APPELLANT: DIANNE HERMAN ELLIS
ATTORNEY FOR APPELLEES: HAROLD O. GRISSOM, JR.
NATURE OF THE CASE: CIVIL - CUSTODY
DISPOSITION: AFFIRMED - 06/03/2021
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
EN BANC.
ISHEE, JUSTICE, FOR THE COURT:
¶1. This is a custody dispute between the mother of an eleven-year-old boy and the boy's paternal grandparents. "John"1 had been living in his grandparents' home for about six years at the time of the judgment, and the chancery court ultimately found that John's mother had
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deserted him and that it was in John's best interest that his grandparents be awarded custody. We cannot find that to be an abuse of discretion, so we affirm the chancery court's judgment.
¶2. John was born in July 2009 to Michael Gros and Haley Summers, an unmarried couple. By 2013, the romantic relationship between Haley and Michael had ended, but they were still living together with the child. In June 2013, Haley married Jesse Summers, who was then incarcerated in Texas for burglary, theft, and drug possession. Haley and Jesse had dated in high school and had rekindled their relationship while he was incarcerated. Michael and John then moved into John's paternal grandparents' home. Michael often traveled for work, and John would stay with Haley on weekends and holidays.
¶3. The arrangement broke down when Haley took the child to the Houston, Texas area for Easter in April 2014. Before releasing John to Haley, John's paternal grandparents had required Haley to sign an agreement to return John to their custody after she returned. But when Haley came back to Mississippi, she did not return John to the Groses' household. This prompted Michael to file a suit for custody. Haley was pro se at the first hearing. In May 2014, the chancellor entered a temporary order granting custody to the paternal grandparents, who were not at that time parties. The order did not include any express provision for visitation or child support from the natural parents.
¶4. The same day as the temporary-custody hearing, Haley secured an attorney and began contesting Michael's petition for custody. But Haley did not file a petition for visitation until September 10, 2014, and she did not see John between May 20, 2014, and October 20,
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2014. In late October 2014, the chancellor ordered that Haley be given limited weekend visitation for two hours the next Saturday, then four hours on each subsequent Saturday.
¶5. Haley began exercising visitation with John after the temporary order giving her weekend visitation, but in early January 2015, Haley's husband was released from prison, and she moved to Texas to live with him. On April 28, 2016, Haley gave birth to a daughter. She did not exercise visitation with John between January 2015 and June 2016. After June 2016, Haley began visiting once or twice per month.
¶6. In February 2016, the paternal grandparents (Cornell and Sherry Gros) moved to be joined as parties. In March 2016, the natural parents were ordered to pay 14 percent of their income as child support, though specific amounts were not set. The chancellor also entered an order permitting the grandparents to "alter or stop visitation" "regardless of the order" if "they feel [it] is in the best interest of the minor child," with the qualification that the paternal grandparents were to "immediately come before the Court to resolve any issues they have." On March 15, 2016 (about a week later), the paternal grandparents petitioned for custody.
¶7. On August 18, 2016, Michael was arrested for sexually abusing a child, his stepdaughter. Haley then petitioned for emergency custody of John, but the Court left temporary custody with the grandparents; Michael was prohibited from having contact with the child. Michael was ultimately convicted and sentenced to fifteen years' incarceration.
¶8. On February 28, 2017, Haley's husband was found dead in the garage of their home in Texas. On March 23, 2017, Haley petitioned to modify the temporary-custody order, arguing that the chancery court had denied her custody because her late husband had been
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a convicted felon. The grandparents simultaneously filed a motion to suspend visitation because of "uncertainty regarding the circumstances of [Haley's husband's] death." On January 13, 2018, Haley again moved to modify the temporary-custody order; she also asked the chancellor to recuse because her attorney was running against him in an upcoming election. The recusal motion was granted.
¶9. On May 23, 2018, and with the new chancellor appointed, the chancery court held a hearing on the competing motions. After hearing the grandparents' case-in-chief, the chancellor granted Haley's Mississippi Rule of Civil Procedure 41(b) motion dismissing the grandparents' claim for custody.
¶10. The grandparents moved for reconsideration, pointing out that the chancellor had relied on the guardian ad litem's report but that the guardian ad litem had not testified and had not been subject to cross-examination. On June 29, 2018, the chancery court granted the motion for reconsideration and ordered another hearing. The trial continued on October 23, 2018, after which it was concluded. The chancery court observed that the guardian ad litem had been unaware of certain key facts as revealed on cross-examination. The court ultimately found that Haley had deserted her son because of a prolonged failure to exercise visitation and pay child support during the pendency of the litigation. The court ordered another hearing to determine the child's best interest as to custody; that hearing was held September 12, 2019. The chancery court conducted an Albright2 analysis and concluded that
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John's best interest required that custody be awarded to his paternal grandparents. Haley appealed from that judgment.
¶11. "This Court uses a limited standard of review when examining domestic-relations cases." Ray v. Ray, 304 So. 3d 598, 599 (Miss. 2020) (citing Gerty v. Gerty, 265 So. 3d 121, 130 (Miss. 2018)). We will not overturn a chancellor's findings of fact unless they are "manifestly wrong or clearly erroneous." McNeese v. McNeese, 119 So. 3d 264, 272 (Miss. 2013) (internal quotation marks omitted) (quoting Duncan v. Duncan, 774 So. 2d 418, 419 (Miss. 2000)). Legal conclusions, however, are reviewed de novo. Bluewater Logistics, LLC v. Williford, 55 So. 3d 148, 155 (Miss. 2011).
1. Temporary-Custody and Visitation Orders
¶12. In her first two issues on appeal, Haley complains that the chancery court erroneously awarded temporary custody of John to his paternal grandparents and that the chancery court erred by limiting her visitation to four hours, once per week, for the first four years of this litigation. Haley contends that the record lacks evidentiary support for these temporary orders and that she should have enjoyed the benefit of the natural-parent presumption for temporary custody and should have received a more standard visitation arrangement. The litigation ended up dragging on for many years, and the chancellor's decision to place the child in the temporary custody of the grandparents undoubtedly had a practical, even decisive impact on the ultimate disposition: at the time of the final judgment, John had been living in
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the grandparents' home for about six years, most of his life. The initial visitation arrangement—four hours once per week—was undoubtedly onerous after Haley moved to Texas and contributed to her failure to visit with the child for an extended period of time.
¶13. We do have reservations about the correctness of the temporary orders, but we also observe also that it is apparent Haley failed to diligently litigate the case. For example, Haley contends that there was no written visitation order entered until seventeen months after the May 22, 2014 temporary-custody order. During this time, Haley contends the grandparents denied her meaningful visitation. But it took Haley more than three months to file a petition for visitation after the initial temporary-custody order. The petition was promptly heard, and the chancellor orally ordered visitation in October 2014; but Haley took a year to prepare the written order as directed. During this time, she contends the grandparents denied her visitation, but she did not file a petition for contempt until December 2015; and she never brought that petition to a hearing. In fact, the record reflects that Haley exercised visitation under the oral visitation order a few times before moving to Texas in January 2015. She ceased visitation entirely until June 2016 and then only visited about once per month after that until April 2018.
¶14. After reviewing the record, we conclude that Haley has failed to demonstrate that an error in the temporary-custody award or visitation arrangements would entitle her to relief, since those temporary orders are no longer in effect. As the Court of Appeals has recently observed, "A temporary custody order is just that, temporary . . . ." Sanders v. Sanders, 281 So. 3d 1043, 1054 (Miss. Ct. App. 2019) (internal quotation marks omitted) (quoting Neely
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