Vermillion v. Perkett, 2018-CA-00023-COA

• Court: Court of Appeals of Mississippi
• Citation: 281 So.3d 925
• Docket Number: NO. 2018-CA-00023-COA,2018-CA-00023-COA
• Parties: Angela VERMILLION, Appellant v. Robyn PERKETT and Douglas P. Vermillion, II, Appellees
• Decision Date: 19 March 2019

281 So.3d 925

Angela VERMILLION, Appellant
v.
Robyn PERKETT and Douglas P. Vermillion, II, Appellees

NO. 2018-CA-00023-COA

Court of Appeals of Mississippi.

March 19, 2019
Rehearing Denied June 25, 2019

ATTORNEY FOR APPELLANT: G. CHARLES BORDIS IV, OCEAN SPRINGS

ATTORNEYS FOR APPELLEES: DEREK R. CUSICK, GULFPORT, KIMBER RENEE ROTEN

BEFORE CARLTON AN D J. WILSON, P.JJ., AND McDONALD, J.

CARLTON, P.J., FOR THE COURT:

281 So.3d 928

¶1. Angela Vermillion filed a complaint seeking grandparent visitation with her granddaughter, Chella Rose Vermillion. Chella Rose's natural parents, Robyn Perkett Vermillion and Douglas Vermillion II, contested Angela's complaint. After a bench trial, the Harrison County Chancery Court granted Robyn and Douglas's motion for a directed verdict. The chancellor also awarded Robyn and Douglas attorney's fees.

¶2. Angela appeals and asserts the following assignments of error: (1) the trial court erred in granting a directed verdict; (2) the trial court applied the wrong legal standard with respect to grandparent visitation; (3) the trial court erred in awarding attorney's fees to Robyn and Douglas; and (4) the trial court erred in dismissing Angela's complaint with prejudice. After our review, we find no error. We therefore affirm the chancellor's judgment.

FACTS

¶3. Angela is the natural mother of Douglas. In 2014, Chella Rose was born to Robyn and Douglas. The record reflects that when Chella Rose was born, Angela visited the hospital and was allowed to hold her. Angela next saw Chella Rose when the baby was forty-nine days old. Angela claims that at that time, Robyn informed Angela that she would never see Chella Rose again. Angela maintains that she has indeed been denied access to Chella Rose ever since.

¶4. On August 9, 2016, Angela filed a complaint for grandparent visitation. At the time Angela filed her complaint, Chella Rose was a little over two years old. In her complaint, Angela claimed that she was entitled to visitation with Chella Rose because it would be in Chella Rose's best interests and would "allow [her] to learn, discover[,] and become familiar with her paternal grandparents and their family."

¶5. Robyn and Douglas testified that they are opposed to Angela having any visitation with Chella Rose. Douglas stated that since he was in high school, he and his mother had a contentious relationship that alternated between civility and hostility. Robyn stated that during her dating relationship with Douglas, she and Angela also had a contentious relationship. Robyn expressed that the relationship remained contentious after she and Douglas were married. Robyn and Douglas also asserted that even before Chella Rose was born, Angela attempted to interfere in their parenting decisions. Robyn and Douglas further expressed concerns about Chella Rose's safety while in Angela's presence.

¶6. On September 23, 2016, Robyn and Douglas filed a motion for attorney's fees.¹ The chancellor held a bench trial on May 22, 2017, and the trial was continued until October 31, 2017. After Angela's direct examination—but prior to her cross-examination—Robyn and Douglas moved for a directed verdict. The chancellor declined to rule on Robyn and Douglas's motion for a directed verdict at that time. Counsel for Robyn and Douglas cross-examined Angela, and then Angela rested her case. At that time, Robyn and Douglas renewed their motion for a directed verdict. The chancellor made her ruling from the bench and granted the motion for a directed verdict.

¶7. On November 9, 2017, the chancellor entered an order granting the motion for attorney's fees and awarding Robyn and Douglas attorney's fees in the amount of

281 So.3d 929

$ 7,384.47. On December 6, 2017, the chancellor entered her judgment for a directed verdict and dismissed the matter with prejudice. In the judgment, the chancellor stated that "after reviewing the testimony and evidence presented and having heard the arguments of the parties, [the court] finds that, applying the applicable standard of law to the facts evidenced at the hearing, [Angela] is not entitled to grandparent visitation." The chancellor made a handwritten notation on the judgment stating that she would incorporate into the order the ruling read into the record from the bench.

¶8. On January 4, 2018, Angela filed her notice appealing the trial court's December 6, 2017 judgment for a directed verdict and the November 9, 2017 order granting attorney's fees.

STANDARD OF REVIEW

¶9. "Findings of a chancellor will not be disturbed on review unless the chancellor was manifestly wrong, clearly erroneous, or applied the wrong legal standard." Smith v. Martin , 222 So.3d 255, 259 (¶ 4) (Miss. 2017) (internal quotation marks omitted). We review questions of law under a de novo standard. T.T.W. v. C.C. , 839 So.2d 501, 503 (¶ 6) (Miss. 2003).

DISCUSSION

I. Directed Verdict

¶10. Angela argues that the chancellor erred in granting Robyn and Douglas's motion for a directed verdict. Angela asserts that because the case was tried without a jury, Robyn and Douglas should have filed a motion for involuntary dismissal, rather than a motion for a directed verdict. Angela also argues that the chancellor applied an erroneous interpretation of Mississippi Code Annotated section 93-16-3(2) – (3) (Rev. 2013); specifically, whether Angela established a viable relationship with Chella Rose.

¶11. We first address Angela's procedural issue. Mississippi Rule of Civil Procedure 41(b), which governs involuntary dismissals, "applies in actions tried by the court without a jury, where the judge is also the fact-finder." All Types Truck Sales Inc. v. Carter & Mullings Inc ., 178 So.3d 755, 758 (¶ 13) (Miss. Ct. App. 2012) (internal quotation marks omitted). " Mississippi Rule of Civil Procedure 50(a), which governs directed verdicts, applies to jury trials, where the judge is not the fact-finder." Id . at (¶ 12) (emphasis omitted). We recognize that "the appropriate motion in a case tried without a jury is not a motion for directed verdict, but for involuntary dismissal ...." Gulfport-Biloxi Reg'l Airport Auth. v. Montclair Travel Agency Inc ., 937 So.2d 1000, 1004 (¶ 13) (Miss. Ct. App. 2006). In similar cases, rather than reversing a trial court's judgment granting a directed verdict due to a procedural error, this Court has considered such appeals under the standard of review for a motion for involuntary dismissal. Id . at 1006 (¶ 18) ; Ladner v. Stone County , 938 So.2d 270, 273 (¶¶ 9-10) (Miss. Ct. App. 2006). We will therefore review the judgment at issue before us under the standard of review for Rule 41(b) involuntary dismissals.

¶12. In applying this standard, we recognize that "[a]ppellate courts ... employ a more deferential standard of review when considering involuntary dismissals [at a bench trial] than when reviewing grants of directed verdicts" at a jury trial. All Types Truck Sales , 178 So.3d at 758 (¶ 13). Rule 41(b) involuntary dismissals are reviewed under a "substantial-evidence/manifest-error standard," rather than the de novo standard applied when reviewing directed verdicts. Id . "A judge should grant a motion for involuntary

281 So.3d 930

dismissal if, after viewing the evidence fairly , rather than in the light most favorable to the plaintiff, the judge would find for the defendant." Id . (quoting Gulfport-Biloxi Reg'l Airport Auth ., 937 So.2d at 1004 (¶ 13) ). "The court must deny a motion to dismiss only if the judge would be obliged to find for the plaintiff if the plaintiff's evidence were all the evidence offered in the case." Id .

¶13. Turning to address the merits² of Angela's issue, Angela asserts that the chancellor improperly construed sections 93-16-3(2) – (3) and therefore erred in granting Robyn and Douglas's motion for a directed verdict. Angela explains that during the trial, Robyn and Douglas argued that under section 96-16-3(3), Angela was required to show "frequent overnight visits or at least six months of financial support prior to the date of filing" in order to prove that she had a viable relationship with Chella Rose. (Emphasis added). Angela argues that the statutory language actually requires "frequent visitation including occasional overnight visitation and partial financial support." Miss. Code Ann. § 96-16-3(3) (emphasis added). On appeal, Robyn and Douglas agree with Angela's assertion that the statute only requires occasional overnight visitation and financial support in whole or in part for not less than six months. However, Robyn and Douglas argue that Angela still failed to satisfy the minimum statutory burden, because Angela never exercised overnight visitation with Chella Rose and never provided any financial support, in whole or in part.

¶14. Grandparents' visitation rights are purely statutory. Smith , 222 So.3d at 263 (¶ 14) ; see also Aydelott v. Quartaro , 124 So.3d 97, 100 (¶ 9) (Miss. Ct. App. 2013) ("There is no common-law right to grandparent visitation.").³ These rights are codified in Mississippi Code Annotated sections 93-16-1 to -7 (Rev. 2013). Section 93-16-3(2), the...