Warner v. Thomas, 031919 MSCA, 2017-CA-01591-COA

Docket Nº:2017-CA-01591-COA
Opinion Judge:McDONALD, J.
Party Name:JONI WARNER APPELLANT v. LARRY THOMAS APPELLEE
Attorney:ATTORNEY FOR APPELLANT: KIMBERLY WALKER NAILOR ATTORNEY FOR APPELLEE: JAMES L. PENLEY JR.
Judge Panel:BEFORE CARLTON, P.J., TINDELL AND McDONALD, JJ. BARNES, C. J, CARLTON AND J WILSON, PJJ, GREENLEE, WESTBROOKS, TINDELL, LAWRENCE, McCARTY AND C WILSON, JJ, CONCUR
Case Date:March 19, 2019
Court:Court of Appeals of Mississippi
 
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JONI WARNER APPELLANT

v.

LARRY THOMAS APPELLEE

No. 2017-CA-01591-COA

Court of Appeals of Mississippi

March 19, 2019

DATE OF JUDGMENT: 09/22/2017

WARREN COUNTY CHANCERY COURT TRIAL JUDGE: HON. JANE R. WEATHERSBY

ATTORNEY FOR APPELLANT: KIMBERLY WALKER NAILOR

ATTORNEY FOR APPELLEE: JAMES L. PENLEY JR.

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

McDONALD, J.

¶1. Joni Warner appeals the chancery court's denial of her petition for modification of a prior child-custody order, the denial of her motion to reconsider, and the denial of her motion for a new trial. Finding no error, we affirm.

FACTS

¶2. Joni Warner and Larry Thomas were never married but are the parents of the minor child, L.J.1 On April 4, 2016, when the child was four and after the parties had ended their relationship, Warner filed a "Complaint for Order of Filiation, Support and Custody" against Thomas. At that time, Warner was living with, and had just had a child by, her fiancé, Tyrone Harris, a pipeline worker in Texas who came home infrequently. Thomas was living with his new girlfriend, and L.J. was in preschool at the time.

¶3. After a hearing on January 17, 2017, the trial court found that prior to ending their relationship and well after L.J. was born, Thomas spent his off-work hours at Warner's house until it was time for him to go home in the evening. They functioned as a family until Warner and Thomas broke up. Both were working during the week and had stability in their jobs. L.J. lived with Warner who would get him up for school and, after school, did homework with him and got him to bed. When Thomas was with the child, they would play football, practice L.J.'s letters, play games, and go to movies. The child had a good and loving relationship with both parents and was in good physical and mental health. Both parents had good support systems in place for the care of the child. After the breakup, the child spent time with Thomas at his mother's home. Thomas claimed he did not want to be "an every other weekend father."[2]

¶4. In its final decree on January 26, 2017, the trial court applied the Albright 3 factors and awarded the parties joint legal and physical custody of the child. According to the decree, Thomas was adjudicated as L.J.'s father and the parties would have alternate weeks of physical custody of the child. Neither party appealed that decision.

¶5. Less than three months later, on April 18, 2017, Warner filed a Petition for Modification claiming a material change in circumstances that adversely affected the best interest of the child. The material change alleged was an April 2, 2017 incident that occurred after one of the minor child's basketball games. Warner claimed that Thomas attempted to assault her and ended up assaulting the minor child. She further pleaded that the municipal court of Vicksburg entered an "Ex Parte Emergency Domestic Abuse Protective Order" following this incident and later entered a Temporary Domestic Abuse Protection Order that prohibited Thomas from contacting Warner until June 14, 2017. Warner also pleaded that modification was necessary because L.J. feared his father. She asked that she be given sole physical and legal custody of the child. Thomas answered, denying these allegations.

¶6. At the hearing on the Petition for Modification, held on August 13, 2017, Thomas and Warner testified, as did each of their mothers and Tyrone Harris (Warner's fiancé). Warner testified and gave her version of the basketball incident which occurred on April 2, 2017, at the YMCA. According to her, the game was over and she had taken L.J. to the concession stand for a hot dog. She also had her baby by Tyrone with her. Thomas came over and talked to the child, telling him that it was a good game, etc. He then looked at her and said "I can't believe you got this ugly ass baby with you. You a dumb mother******." Knowing that things were turning for the worse, she tried to grab L.J.'s hand to leave; Thomas, however, took the child with him "behind what's a board," she said, "[H]e took L.J. behind the board." She then called her fiancé, Tyrone, to tell him that Thomas would not give her the child. Thomas hit the phone out of her hand. She kept trying to get the child back, and finally Thomas grabbed her hand and tried to hit her. He missed and slapped L.J. accidentally instead. L.J. began crying, and she went to find a coach. She then got L.J. back, and as they were leaving, Thomas tried to trip her.

¶7. Thomas, however, gave a different version of events. According to him, after the game, he saw Warner and L.J. and said he wanted to talk to L.J. because he had not been able to see him. L.J. was sitting down, eating his hot dog, and Thomas told him to come over to him. L.J. had no problem coming to him. Warner broke into their conversation and said they were leaving. Thomas grabbed L.J. and said he was not done talking to the child. Warner said that was too bad, snatched the child, and left. He denied attempting to strike Warner and denied hitting the child at all.

¶8. Tyrone Harris testified that he was at work when he received a call from Warner. She was crying and telling him that Thomas had taken L.J. from her and would not give him back. He heard Thomas on the phone say, "[B]itch, you'll get him back when I want you to have him back." And then the call ended.

¶9. Elizabeth Thomas, Thomas's mother, testified that she was at the YMCA that day but she did not witness the incident. Someone told her that she needed to go see about Warner and Thomas because they were arguing. By the time she got to the area, everything was over, and she only saw Warner and L.J. walking out. The child appeared to be fine with one hand holding his mother's hand and the other holding a hot dog. The child was not crying. She asked Warner what had happened, and all Warner would say was that Thomas had lost his mind and that she was going to press charges. Then they...

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