Embrey v. Young

337 So.3d 247

Jonathan Graham EMBREY, Appellant

v.Maria YOUNG, Appellee

NO. 2021-CA-00091-COA

Court of Appeals of Mississippi.

November 30, 2021

Rehearing Denied February 8, 2022

ATTORNEY FOR APPELLANT: JERRY WESLEY HISAW, Southaven

ATTORNEY FOR APPELLEE: MARIA YOUNG (PRO SE)

BEFORE WILSON, P.J., WESTBROOKS AND McDONALD, JJ.

McDONALD, J., FOR THE COURT:

¶1. Jonathan Graham Embrey and Maria Young are the parents of two minor children, D.M.E. and N.A.E.¹ After Jonathan and Maria ended their six-year relationship, Jonathan filed a petition for legitimation, sole child custody, and other relief in the Tate County Chancery Court. The chancellor found that Jonathan was the "natural and biological father" of both children, awarded the parties joint legal custody of the minor children, awarded Maria physical custody, and awarded Jonathan visitation. The court also ordered Jonathan to pay child support. On appeal, Jonathan argues that the chancellor erred by failing to appoint a guardian ad litem (GAL) and by awarding Maria custody of the children. Finding no error, we affirm the chancellor's rulings.

Statement of the Facts and Procedural History

¶2. In 2011, thirty-year-old Jonathan met twenty-year-old Maria at the Four Seasons Garden Center, where they were both employed. They began dating, and in April 2012, they moved into Jonathan's grandmother's house.² A few months later, Maria became pregnant with their first child. During Maria's pregnancy, Jonathan left his job at the Four Seasons and then worked for FedEx. Maria continued to work at the Four Seasons until a few months before the birth of their son, D.M.E., on May 22, 2013. Maria returned to work a few months later. As the years went by, according to Maria, Jonathan became verbally and physically abusive. Although she threatened to leave, she did not. When Jonathan's grandmother died in 2016, his parents moved into the house with him, Maria, and D.M.E.

¶3. In 2018, when Maria and Jonathan were expecting their second child, Maria once again stopped working at the Four Seasons as her pregnancy progressed. Maria and Jonathan separated in November 2018 while she was pregnant with the second child. Maria and D.M.E. moved into her mother's house and then to her grandmother's house. During this time period, Maria and Jonathan had disagreements about a visitation schedule for D.M.E.

¶4. On November 9, 2018, Jonathan filed a petition for legitimation, child custody, and other relief. Jonathan argued that he should be awarded both temporary and permanent legal custody, physical custody, and control of D.M.E. and his yet unborn child. Additionally, Jonathan sought specific periods of visitation with the minor children, a division of all medical expenses, deductions for both children for federal and state income tax purposes, and an emergency hearing because D.M.E. had not been to school in four days.

¶5. The chancery court entered a temporary order on November 29, 2018, giving both parties joint legal and physical custody of D.M.E. until a final order was entered. The order included specific time periods and holidays that Jonathan and Maria would have physical custody of D.M.E. Additionally, the order allowed Jonathan and his family to be present during the birth of his second child, and the court ordered that after January 6, 2019, the parties would alternate physical custody of D.M.E. on a week-to-week basis. The court also ordered the parties to work together to establish a visitation schedule for the unborn child. If they could not agree, then the court would set visitation. Further, neither party was required to pay child support until the chancellor reviewed the matter on January 28, 2019.

¶6. On December 21, 2018, Maria gave birth to their second child, N.A.E. When Jonathan and Maria could not agree on visitation for N.A.E., on January 8, 2019, the chancery court entered a "Holiday Order,"³ providing that Jonathan would have visitation every Monday, Wednesday, and Friday and on Christmas Day and New Year's Day.

¶7. The court entered another temporary order on January 30, 2019. The order provided that Jonathan and Maria would continue to exercise joint legal and joint physical care, custody, and control of the minor children. The court also ordered that D.M.E. undergo counseling.⁴ Maria was also ordered to provide breast milk for N.A.E. when Jonathan had physical custody. Additionally, the court enjoined the parties and their families from making negative comments about the other party in the presence of the minor children. Further, the court ordered Jonathan and Maria to attend and complete a parenting class in Tennessee and submit proof of attendance to the court. The court also allowed Maria to remove several of her personal items from Jonathan's property. The court set the matter for trial for December 18, 2020.

¶8. Later in 2019, Jonathan told Maria that D.M.E. had been sexually abused by his fourteen-year-old cousin on Maria's side of the family. Jonathan could not give a specific date of the abuse. Because of the allegations, the parties decided to take D.M.E. to see a therapist regarding the matter. D.M.E. saw Ashley Schachterle, a mental health therapist at Journey to New Beginnings, in Southaven, Mississippi, beginning in May 2019. She saw D.M.E. a total of fifteen times until September 2019. Schachterle concluded that D.M.E.’s sexual-abuse claims were unsubstantiated.

¶9. Nearly two years after Jonathan filed his petition for legitimation and custody, on October 30, 2020, Maria filed a response and a counter-petition. She requested that Jonathan's petition be dismissed at his cost and that she be awarded attorney's fees. Maria also requested permanent physical custody and joint legal custody of both minor children and that Jonathan be ordered to pay their educational, extracurricular, and child-care expenses, as well as any medical, orthodontic, or dental expenses not covered by insurance.

¶10. Prior to the trial, both Jonathan and Maria attended and completed the mandatory parenting class as the court had ordered.

¶11. The chancery court tried the matter on December 18, 2020. Schachterle testified first as an out-of-order witness for Maria. She stated that the purpose of D.M.E.’s sessions was to address sexual-abuse allegations. According to Schachterle, D.M.E.’s allegations were inconsistent and would change depending on which parent was present for the sessions. Schachterle stated that D.M.E. initially said that he was sexually abused at Maria's house, but he later said it happened at school. D.M.E. also told her that Jonathan would tell him what to say about the abuse. Specifically, Schachterle testified that D.M.E. said, "Dad told me to tell you that John touched me. He told me what to say in therapy today."

¶12. Schachterle stated that she could not say with 100% certainty whether the abuse happened. She sent two reports to Child Protection Services (CPS), which fully investigated the matter. After its investigation, CPS found that the sexual-abuse allegations were unsubstantiated and closed the case.⁵ Schachterle advised Maria to create or devise a safety plan for the children that included supervision of the children at all times. Schachterle recommended that D.M.E. undergo a full psychological evaluation to test him for Autism Spectrum Disorder, and she testified that Maria put D.M.E. on the waiting list for such an evaluation.

¶13. Additionally, Schachterle discussed a session she conducted with both Jonathan and Maria to discuss how their behavior toward each other had affected D.M.E. She stated that Maria remained calm, but she had to ask Jonathan to calm down on several occasions. She advised them to attend co-parenting therapy sessions, which was different from the parenting class that the chancery court had ordered them to attend. According to Schachterle, Maria attended the classes, but Jonathan did not. However, at trial she could not recommend that D.M.E. should primarily live with either Jonathan or Maria because she had not seen D.M.E. in over a year. Schachterle said that D.M.E. was having a hard time making the transition from living with his mother for a week and then with his father for a week because his parents were not getting along. Schachterle felt that D.M.E. would benefit from a structured routine.

¶14. Jonathan presented several witnesses, including his mother, Sherry Embrey, Maria as an adverse witness, and himself. Maria testified that she had tried to leave Jonathan prior to 2018 but that he would take her phone or keys and drive away with D.M.E. to prevent her from leaving. She also testified that she kept a well-documented journal of Jonathan's verbal abuse, which was entered into evidence. Maria stated that D.M.E. never told her that his cousin was touching him inappropriately. She only became aware of the allegations in March 2019 after Jonathan and his counsel told her about them. Maria stated that at a later encounter, Maria stated that Jonathan began to yell and tell her not to allow D.M.E. around his male or female cousins. Maria testified that CPS conducted a full investigation into the sexual-abuse allegations, which included a forensic interview with D.M.E. at Maria's home. CPS found that the sexual-abuse claims were unsubstantiated.

¶15. At the time of the trial, Maria stated that she was a self-employed artist. In her financial statements, she reported that she made about $500 per month. Maria testified that she became engaged to her fiancé, Kyle Crenshaw, on October 2, 2020, and that she later moved in with him. Since then, Maria became a full-time stay-at-home mother and worked as an artist only occasionally.

¶16. Jonathan's mother, Sherry, testified that she had been in D.M.E.’s life since he was born. According to Sherry, Jonathan would take D.M.E. to his doctor's appointments, and she watched D.M.E. the majority of the time. Additionally, prior to Maria's leaving Jonathan, Sherry testified that Maria kept a filthy...