Domke v. Domke

305 So.3d 1233

Sarah Elizabeth DOMKE (Champlin), Appellant

v.Robert Edward DOMKE III, Appellee

NO. 2018-CA-01758-COA

Court of Appeals of Mississippi.

October 20, 2020

ATTORNEY FOR APPELLANT: CHASE FORD MORGAN

ATTORNEY FOR APPELLEE: YVETTE LOUISE STELLY

EN BANC.

CARLTON, P.J., FOR THE COURT:

¶ 1. Sarah Domke (Champlin) appeals from the judgment of the Lamar County Chancery Court, which modified the custody schedule that she and her ex-husband Robert Domke III had agreed to during their divorce. On appeal, Sarah asserts that the chancellor erroneously (1) modified child custody; (2) admitted certain witness testimony; (3) failed to find Robert in contempt; (4) failed to award her a monetary judgment and attorney's fees related to her contempt claim; and (5) failed to dismiss Robert's post-trial motion. Finding no error, we affirm the chancellor's judgment.

FACTS

¶ 2. Robert and Sarah married in 2010, and their daughter Julia¹ was born in 2012. The parties divorced in 2017. Pursuant to the agreement incorporated into their divorce judgment, the parties received joint physical and legal custody of Julia. Robert received physical custody of Julia when he was home from his offshore work, and Sarah received custody when Robert was at work. Custody alternated every twenty-one days or, if Robert was no longer employed offshore, every fourteen days. The parties agreed that Robert would receive not only exclusive ownership and possession of the marital home in Lamar County but also full responsibility for the mortgage payments. The parties further agreed to list the marital home for sale within thirty days of the entry of the divorce judgment and to equally divide any profits or losses from the sale.

¶ 3. For Julia's kindergarten year (the 2017-2018 school year), the parties enrolled her in school in Sumrall, Mississippi, in Lamar County. Shortly after enrolling Julia in kindergarten, both parties remarried. Robert relocated to Kiln, Mississippi, in Hancock County. Sarah initially remained in Hattiesburg, Mississippi, in Lamar County, but by the time of the hearing, she had relocated to Fayetteville, North Carolina. Despite Robert's move to the Mississippi Gulf Coast, the parties continued to alternate physical custody while Sarah lived in Hattiesburg.

¶ 4. Over the course of the 2017-2018 school year, Julia accumulated more than twenty absences. At least once during the school year, Julia's immunization form expired, and the school had to inform the parties that they would need to update the form before Julia could return. By the spring semester, Julia's academic progress began to suffer, and the school determined that she should not be promoted to first grade.

¶ 5. On December 4, 2017, the parties sold the former marital home. Eleven days later, on December 15, 2017, Sarah filed a motion for temporary relief as well as a petition for contempt, modification of the divorce judgment, and other related relief. Sarah alleged that the drive from Robert's home in Kiln to Julia's school almost seventy miles away was adversely affecting Julia and that Robert's move to Kiln made the custody schedule untenable. Sarah also asserted that her upcoming relocation would further render the parties’ current custody arrangement impracticable. As a result, Sarah contended that a material change in circumstances had occurred and that she should be awarded primary physical custody of Julia. In addition, Sarah asserted that Robert had damaged her credit rating by his failure to timely pay the mortgage on the marital home. Sarah therefore asked the chancellor to hold Robert in contempt and to award her a monetary judgment and attorney's fees.

¶ 6. On December 20, 2017, Robert filed his answer and his counterclaim for contempt and modification of custody. Robert acknowledged that he had fallen behind on the mortgage payments due to an inability to pay. He further stated, however, that he had become current on the mortgage payments and that the marital home had been sold prior to Sarah filing her motion. Robert also requested that the chancellor grant him primary physical custody of Julia. Robert asserted that while in Sarah's custody, Julia had fallen drastically behind at school, had accumulated numerous school absences and tardies, and had been exposed to derogatory comments about him. In addition, Robert expressed his concerns about Sarah's out-of-state relocation due to her remarriage and how the move would affect both visitation and Julia's academic progress.

¶ 7. The chancellor voluntarily appointed a guardian ad litem (GAL) to represent Julia even though neither party had made any allegations of abuse or neglect. The chancellor subsequently held a three-day hearing, which took place on July 17, August 6, and August 9, 2018. During the course of the hearing, the chancellor heard testimony from the following witnesses: Robert; Sarah; Beverly Thigpen (Sarah's mother); Leslie Hall (Thigpen's co-worker); Jennifer Matherne (Julia's kindergarten teacher); Jennifer Bertram (the dean of academics at Julia's school); and the GAL. After considering all the evidence and testimony, the chancellor entered his findings of fact, conclusions of law, and final judgment on August 14, 2018.

¶ 8. Even though the chancellor found no material change in circumstances that adversely affected Julia, he still provided an analysis of the factors from Albright v. Albright , 437 So. 2d 1003, 1005 (Miss. 1983). These factors include the following:

(1) age, health, and sex of the child;

(2) continuity of care prior to the separation;

(3) parenting skills and the willingness and capacity to provide primary child care;

(4) the employment of the parent and responsibilities of that employment;

(5) the physical and mental health and age of the parents;

(6) the emotional ties of parent and child;

(7) the moral fitness of the parents;

(8) the home, school, and community record of the child;

(9) the preference of the child at the age sufficient to express a preference by law;

(10) the stability of the home environment and employment of each parent; and

(11) other factors relevant to the parent-child relationship.

Id.

¶ 9. In analyzing the Albright factors, the chancellor concluded that the following factors favored Sarah: (1) Julia's age, health, and sex; and (2) the parents’ employment and the responsibilities of that employment. By contrast, the chancellor determined that the following factors favored Robert: (1) parenting skills and the willingness and capacity to provide primary child care; (2) the parents’ moral fitness; (3) Julia's home, school, and community record; and (4) the stability of each parent's home environment and employment. Finally, the chancellor found the following factors to be neutral: (1) continuity of care; (2) the parents’ physical and mental health and age; (3) the emotional ties of the parents and Julia; and (4) any preference expressed by Julia.

¶ 10. The chancellor acknowledged that the GAL had concluded under the Albright analysis that "continuity of care[;] employment[;] employment schedule[;] sibling separation[;] age, sex[,] and health[;] willingness and capacity[;] and stability of the home" favored granting physical custody to Sarah. After briefly discussing his reasons for reaching different conclusions on several of these factors, the chancellor held that neither party had proved a material change in circumstances that adversely affected Julia's welfare. Although Sarah had moved to North Carolina, the chancellor noted her testimony that she planned to move back to Mississippi in the near future. The chancellor concluded that a move alone failed to justify any change in physical custody. As a result, the chancellor denied the parties’ requests for modification of child custody and their related claims for child support.

¶ 11. The chancellor did, however, find that a modification of the parties’ custodial schedule was necessary for the upcoming school year. The chancellor provided that Robert would have Julia during the 2018-2019 school year and for two weeks during the summer while Sarah received Julia during the remaining eight weeks of summer and the entirety of Thanksgiving and spring break. The chancellor further directed the parties to divide the time over the Christmas break. In addition, the chancellor denied Sarah's contempt claim against Robert after finding that any damage to Sarah's credit had been unintentional, the marital home had been sold, and the parties had moved on with their lives.

¶ 12. On August 24, 2018, Sarah filed a motion to alter or amend the chancellor's judgment, to open the judgment and amend the findings of fact and conclusions of law, or, alternatively, for a new trial. On September 24, 2018, Robert responded to Sarah's motion and moved for clarification of the parties’ continuing financial obligations regarding certain shared expenses for Julia and for clarification or correction of omitted terms regarding the custody exchange for Julia's long-distance travel between Mississippi and North Carolina. On September 28, 2018, Sarah moved to dismiss Robert's motion. Sarah argued that although Robert had framed his post-trial motion as one seeking clarification under Mississippi Rule of Civil Procedure 60, the motion actually contained new requests for relief and sought to alter or amend the chancellor's judgment. As a result, Sarah contended that Robert's motion was really an untimely filed motion pursuant to Mississippi Rule of Civil Procedure 59(e). She therefore requested that the chancellor dismiss Robert's motion.

¶ 13. The chancellor held a hearing on October 1, 2018, and then entered his order on the parties’ post-trial motions on November 26, 2018. The chancellor granted Robert's requests for more specific terms regarding the custodial schedule and exchange. The chancellor also provided guidance regarding "telephonic visitation and/or electronic face-to-face visitation" with Julia. The chancellor denied all other requested...