Wall v. Wall
| Decision Date | 22 March 2022 |
| Docket Number | 2020-CA-01182-COA |
| Citation | 350 So.3d 620 |
| Parties | Patrick Aaron WALL, Appellant v. Robin Rene May WALL, Appellee |
| Court | Mississippi Court of Appeals |
ATTORNEY FOR APPELLANT: CHRISTOPHER A. TABB, Brandon
ATTORNEY FOR APPELLEE: JOHN DAVID SANFORD, Jackson
BEFORE WILSON, P.J., WESTBROOKS AND LAWRENCE, JJ.
WESTBROOKS, J., FOR THE COURT:
¶1. Patrick Aaron Wall appeals the involuntary dismissal of his petition for child custody modification by the Rankin County Chancery Court. See M.R.C.P. 41(b). Patrick asserts that the chancellor failed to apply the proper legal standard by not considering the totality of the circumstances as required in custody modification cases. Finding no error, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2. Patrick and Robin May Wall were married in 2008. The couple had one son born of the marriage in 2009, J.W.1 In September 2017, the Rankin County Chancery Court entered a final judgment of divorce between Patrick and Robin on the ground of irreconcilable differences. An approved separation agreement was incorporated into the final judgment of divorce, awarding joint legal custody of J.W. to both parties but granting physical custody to Robin alone. The separation agreement also contained a detailed visitation schedule that divided the holidays and summers between both parties and allowed Patrick visitation with J.W. every other weekend.
¶3. In September 2018, Patrick filed a petition for civil and criminal contempt against Robin, asserting that she failed to allow Patrick visitation. Robin filed a counterclaim seeking sole legal custody. The chancery court determined that Robin was not in contempt for failing to allow Patrick visitation. The court found that the failed visit was a one-time incident, and it was not willful, intentional, or part of a pattern. The chancery court also reaffirmed its prior custody decision, stating that it was not in the child's best interest to change legal custody as Robin requested in her counterclaim. The judgment continued by ordering both parties to refrain from harassing, threatening, or disparaging the other in the presence of J.W. and on social media.
¶4. Approximately two years later, in September 2020, Patrick filed a petition for modification of custody of J.W. Patrick asserted in his petition that there were two material changes in circumstance that were adverse to J.W.: (1) J.W. had missed school and accumulated numerous early check-outs and tardies, and (2) Robin's new boyfriend Marcus Ivey was a convicted sex offender listed on the Mississippi Sex Offender Registry but was allowed to spend the night at her residence despite her knowledge of his status. At the hearing, Patrick presented numerous additional examples as material changes in circumstances that adversely affected J.W. Patrick alleged that Robin had (1) admitted to smoking marijuana at a party, (2) purchased and used alcohol in front of J.W., (3) lost her job, (4) left J.W. alone at the home at night when she went out with friends, and (5) maintained a tasteless Tiktok account that J.W. had access to; Patrick further alleged that J.W. had (6) discussed his desire to self-harm on a video game messaging app. At the close of testimony, Robin made a Rule 41(b) motion to dismiss on the ground that Patrick had failed to put forth the requisite evidence to show that any of Robin's actions had an adverse effect on J.W.
¶5. The chancellor dealt with each of these allegations in turn in his findings. The chancellor prefaced his findings by reminding all parties of the requirement of considering the totality of the circumstances when determining whether there had been a material change in the custodial home. The chancellor first dispensed with the allegations that did not cause him concern. The chancellor initially assessed whether Robin's association with Ivey negatively impacted J.W. Robin testified she had severed her connection with Ivey, whom she had only dated briefly, and since J.W. had little to say about Ivey during his testimony, other than that he had not seen him in over a month, the chancellor determined that there was a lack of evidence of any negative impact on J.W. from this association. The chancellor also pointed out that "[custody] modification[s] should not be ordered if a material adverse changes had been remedied[,] ... [a]nd the best evidence indicates that it has."
¶6. The chancellor found that testimony about Robin taking "one puff" of a marijuana joint six months prior to the hearing did not constitute a material change, stating the court was "in no position to take somebody's child away from them for one puff six months ago." Likewise, the chancellor quickly dismissed Patrick's allegation that a material change occurred when Robin lost her job, pointing to Robin's testimony that she had lost her job the prior week but was scheduled to start another one the next day.
¶7. The remaining issues were of more concern to the chancellor and were discussed in greater detail. First, the chancellor expressed great concern over the high number of tardies, checkouts, and absences that school records showed J.W. had accrued during the 2019 and 2020 school years. During J.W.’s 2019 school year, he was tardy thirty-two days and absent eighteen. And for the 2020 school year, as of the date of the hearing in October 2020, J.W. had already accumulated five absences and one tardy. There was testimony from Patrick that due to the excessive absences, J.W.’s grades had fallen from As and Bs to As, Bs, and two Cs. While admonishing Robin for the excessive absences, the chancellor pointed out that J.W.’s and Robin's testimony established some valid reasons for J.W.’s absence: J.W. was kept out of school after his grandfather had a stroke, after the death of his dog, and when he was kept home with fevers as a precaution during the COVID-19 pandemic. The chancellor also noted that J.W.’s grades were actually "not bad for a child of [a] recent divorce whose parents are constantly in court since ... divorc[ing] and who has had to deal with an unprecedented global pandemic that canceled school ... last year." Additionally, earlier testimony from Patrick established that J.W. had made Cs in the past, demonstrating the two Cs for the 2019-2020 year were not an anomaly. The chancellor pointed to testimony from Patrick and Robin that they both appropriately disciplined J.W. when he received bad grades and that he received assistance from his mother, father, and mom's roommate Danielle with his schoolwork.
¶8. The chancellor next assessed the assertation that J.W. was frequently left at home alone, including overnight. Robin's testimony established that she had left him at home alone or with her roommate's younger children on multiple occasions at night while she socialized with friends, her boyfriend, or at various times went to a pool hall, a bar, or Daiquiri World in Louisiana. However, testimony by J.W. and Robin established that Robin lived on family land, "in a little triangle" of family homes that included Robin's father, sister, and grandmother, all whom J.W. guessed were located anywhere from six to fifty feet from his house. Robin testified that if she was not at home, he would be checked on by her grandmother or father, or he would walk over to their houses to stay until she returned. She noted that "all the kids come and go" and are always supervised by one of the family members. Additionally, J.W. testified that Robin's roommate Danielle supervised him at other times when his mother had to run errands. While the chancellor expressed his displeasure at the lack of direct supervision at times, he noted that there was "[v]ery little reliable evidence introduced indicating that J.W. was completely unsupervised," as J.W. and Robin lived so close to extended family members.
¶9. The chancellor continued by addressing the statements regarding J.W.’s expressed desire to self-harm. During his testimony Patrick briefly referred to an earlier expression regarding self-harm that J.W. had made by text after his parents’ divorce. He mentioned that during that time, J.W. saw a therapist to help him deal with the effects of the divorce. Patrick elaborated more on a second instance of J.W. expressing a desire to self-harm, which was made using the messaging function of an Xbox video game. Patrick testified that after he discovered the message, J.W.’s Xbox was taken away. Robin and Patrick discussed their concerns and enrolled J.W. in therapy sessions, which J.W. was still attending at the time of the hearing. The chancellor acknowledged in his findings that J.W.’s statements were concerning but reasoned:
There's no reliable testimony as to the first incident, an apparent text to his mother, as to when it occurred, and possibly could have occurred prior to the divorce or when the divorce was going on. The second incident, a message made through an online Xbox game to a third party, occurred more recently. No one can testify ... as to when [J.W.] actually sent the message, where he was, or why. What we do know is that when Patrick discovered it, Patrick took the gaming system away ... and Robin changed the settings on [J.W.]’s phone and gaming system so that messaging with ... third parties were -- those options were deleted. Patrick and Robin discussed the situation together and [J.W.] began seeing a counselor ... so that he could talk about it.
¶10. The chancellor continued his findings by declaring that he found J.W. during his testimony to be an engaging and pleasant young man who did not appear depressed, but the chancellor believed J.W. was engaging in attention-seeking behaviors common of children from recently divorced families.
¶11. Finally, the chancellor touched on Robin's allegedly inappropriate social media presence on accounts to which J.W. had access. J.W. testified to seeing TikTok videos of his mother holding alcohol and using profanity. During the hearing, several of Robin's TikTok videos were viewed in which sh...
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