Weathers v. Guin

• Decision Date: 18 November 2014
• Docket Number: No. 2013–CA–01366–COA.,2013–CA–01366–COA.
• Citation: 151 So.3d 272
• Court: Mississippi Court of Appeals
• Parties: Regina Diane WEATHERS, Appellant v. Scotty Wade GUIN, Appellee.

151 So.3d 272

Regina Diane WEATHERS, Appellant

v.Scotty Wade GUIN, Appellee.

No. 2013–CA–01366–COA.

Court of Appeals of Mississippi.

Nov. 18, 2014.

Michael Lee Dulaney, Tupelo, attorney for appellant.

James Roger Franks Jr., William Rufus Wheeler Jr., attorneys for appellee.

Before IRVING, P.J., FAIR and JAMES, JJ.

Opinion

IRVING, P.J., for the Court:

¶ 1. After awarding custody of Regina Weathers and Scott Guin's minor son, Jacob, to Regina, the Chancery Court of Itawamba County entered a modification order transferring custody of Jacob to Scott and ordering Regina to pay child support for Jacob. The chancery court later entered a contempt order, finding Regina in contempt for violating the modification order. Regina appeals from the modification order, arguing that there was no basis for the custody modification because no hearing was held and she did not consent to the terms of the order. Regina also argues that the chancery court erred by finding her in contempt.

¶ 2. For the reasons that follow, we reverse and remand for further proceedings.

FACTS

¶ 3. Regina and Scott were divorced on December 1, 2008. In the divorce decree, the chancery court awarded primary custody of two of Regina and Scott's minor children, Jacob and Brittany, to Regina, with Scott having visitation with them. The chancery court awarded Scott primary custody of the third minor child, Courtney, with Regina being awarded visitation.

¶ 4. On June 4, 2013, Scott filed a complaint in the chancery court, seeking modification of the initial custody order to grant him custody of Jacob and Brittany based on substantial and material changes in circumstances, specifically: (1) Regina's consumption of alcohol in the children's presence, (2) Regina's disparaging statements about Scott to the children, and (3) Regina's threats to move the children to another state.¹ Scott also insisted that Regina had allowed Jacob and Brittany to suffer injuries, although he did not specify the type of injuries or how they occurred.

¶ 5. By order filed July 8, 2013, without citing a material change in circumstances, the chancery court modified the original custody order and awarded permanent physical and legal custody of Jacob to Scott, with Regina having visitation. The chancery court also ordered Regina to pay child support for Jacob. Pursuant to the modification order, neither Scott nor Regina could move the children out of state, make disparaging remarks about each other in the children's presence, consume alcohol in the children's presence, or operate a motorized vehicle with either of the children while under the influence of alcohol. Despite the language in the modification order stating that the chancery court had made its findings after “both parties [had] appeared with counsel” and that the parties had appeared “[o]n the date and time set for hearing,” no transcript has been provided to this Court on appeal. The modification order was approved as to form by Scott's attorney and Regina's attorney.²

¶ 6. Also on July 8, 2013, Scott filed a second complaint in the chancery court, alleging that Regina had refused to return Jacob to Scott's custody on Friday, July 5, 2013, and that Regina had made disparaging remarks about Scott in Jacob's presence.³ Scott also insisted that Regina had failed to meet her child-support obligation and had refused to allow the children to speak with Scott when he called. On July 22, 2013, Regina filed a motion to set aside the modification order, arguing that she had neither agreed to nor approved the order and insisting that the order was entered without a hearing or presentation of any proof. The record reveals that the chancery court did not rule on the motion to set aside its modification order.

¶ 7. On August 7, 2013, Regina appealed “to the Supreme Court of Mississippi against ... Scott ... from the [o]rder filed on July 8, 2013.” On August 22, 2013, the chancery court filed an order of contempt, finding that Regina was not in contempt for failing to return Jacob to Scott on July 5, 2013, but finding that Regina was in contempt for failing to fulfill her child-support obligation for Jacob and for making disparaging remarks about Scott in Jacob's presence.

¶ 8. In her appeal, Regina argues that the chancery court erred by modifying custody of Jacob without an agreement between the parties or a hearing on the merits to determine whether Scott had proved, by a preponderance of the evidence, that the custody modification was warranted. She insists that although her attorney approved the modification order as to form, she did not consent to its terms.

¶ 9. In response, Scott argues that the chancery court made its findings following a one-day trial. According to Scott, the chancery court instructed Scott's attorney to prepare the modification order, which was later presented to, and approved by, Regina's attorney. Scott insists that the chancery court modified custody of Jacob only after interviewing Jacob and Brittany in chambers. Additionally, Scott argues that the chancery court correctly applied the Albright⁴ factors in determining Jacob's best interest, and that both the modification order and the contempt order were proper.

DISCUSSION

¶ 10. At the outset, we note that the chancery court's failure to rule on Regina's motion to set aside the modification order does not affect the validity of this appeal, as Regina's motion was filed more than ten days following the entry of the order modifying custody, and Regina filed her notice of appeal within thirty days of the entry of the modification order. Thus, Regina's motion to set aside the modification order must be treated as a Rule 60 motion. A Rule 60 motion pursuant to the Mississippi Rules of Civil Procedure “does not affect the finality of a judgment or suspend its operation.” Bank of Edwards v. Cassity Auto Sales, Inc., 599 So.2d 579, 582 (Miss.1992) ; see also M.R.C.P. 60(b)(6).

¶ 11. We also note our lack of jurisdiction over issues concerning the contempt order due to Regina's failure to properly appeal from that order. Rule 3(a) of the Mississippi Rules of Appellate Procedure provides that “[a]n appeal permitted by law as of right from a trial court ... shall be taken by filing a notice of appeal with the clerk of the trial court within the time allowed by Rule 4.” Rule 4 of the Mississippi Rules of Appellate Procedure provides that a “notice of appeal ... shall be filed with the clerk of the trial court within 30 days after the date of entry of the judgment or order appealed from.” Here, Regina appealed only the modification order. Therefore, we only discuss the issues raised by Regina concerning the modification order.

I. Child Custody

¶ 12. In support of her argument that the chancery court erred by modifying custody of Jacob without a hearing and without her consent to the modification order, Regina cites two cases, Klein v. McIntyre, 966 So.2d 1252 (Miss.Ct.App.2007), and Samples v. Davis, 904 So.2d 1061 (Miss.2004). Before discussing these cases, we should point out that we cannot ascertain from the record whether the modification order was entered without the benefit of a hearing.

¶ 13. In Regina's designation of record, she asked that the transcript of the hearing conducted on July 1, 2013, be made a part of the record. Yet no transcript was provided. Further, the order granting the modification does not reference a hearing on a specific date, although it does state that both parties appeared with counsel on the date and time set for the hearing. Noticeably, however, the order does not state that any evidence was adduced at the hearing or that the court made its findings based on any evidence adduced at the hearing. Additionally, the docket does not indicate that a hearing was set for July 1, 2013, although an “order of setting” was entered on June 18, 2013, apparently setting something for a hearing. It could have been a setting for a hearing on the motion for modification, but we are unable to ascertain from the record if that was the case. With this said, we return to the cases cited by Regina and discuss them in reverse order.

¶ 14. In Samples, following a divorce and after the parties had entered into a consent judgment governing the custody and maintenance of their children, the parties sought modifications of the judgment. Id. at 1062–63 (¶¶ 1–5). The parties went before the chancery court for a hearing, but no hearing was held due to a possible settlement of the parties' issues. Id. at 1063 (¶ 6). The parties later went before the chancery court a second time with a settlement agreement, which the appellant refused to sign. Id. at 1066 n. 2. The chancery court later entered that judgment as a purported consent judgment. Id. The Mississippi Supreme Court found that because neither the appellant nor his attorney had signed the purported consent judgment and because the terms of the judgment were not announced in open court and recorded by a court reporter, there was not substantial credible evidence to support the judgment. Id. at 1065 (¶ 14). The facts of that case are distinguishable from the case before us. Here, the modification order is not a purported consent judgment.

¶ 15. In Klein, the chancery court entered a consent judgment as well as a judgment that was not consented to by the parties, both of which were signed by the chancery court and the parties' attorneys. Klein, 966 So.2d at 1254 ( ¶ 4). There was no transcript of any prior hearings held before the judgments were entered. Id. at 1256 (¶ 14). The judgments contained spaces, which were designated for the parties' attorneys' signatures and which indicated that the judgments were “Approved as to Form.” Id. at 1254 (¶ 4). However, when signing the judgments, to make it clear that the appellant did not agree to the substance thereof, the appellant's attorney made a handwritten notation near the space designated for his signature, indicating that the judgments were “Approved as to Form Only.” Id. at (¶¶ 4–5)....