Gossett v. Gossett

313 So.3d 1063

Tiffany Smith GOSSETT, Appellant

v.Chester L. GOSSETT IV, Appellee

NO. 2019-CA-01509-COA

NO. 2016-CA-00672-COA

Court of Appeals of Mississippi.

March 23, 2021

ATTORNEYS FOR APPELLANT: NICK CRAWFORD, Greenville, VICKI L. GILLIAM, Clinton

ATTORNEY FOR APPELLEE: TONYA P. FRANKLIN

BEFORE BARNES, C.J., GREENLEE AND WESTBROOKS, JJ.

BARNES, C.J., FOR THE COURT:

¶1. Tiffany Gossett appeals from the Washington County Chancery Court's judgment granting permanent physical custody of Tiffany and Chester Gossett's only child, Laiklynn, to Chester. This case originated as a divorce proceeding. Shortly after both parties filed for divorce, Tiffany was awarded temporary custody of Laiklynn. Initially, the chancery court denied Tiffany's and Chester's requests for divorce based on adultery and habitual cruel and inhuman treatment. Chester appealed, and this Court reversed the chancery court's ruling in part, remanding the case for reconsideration of Chester's adultery allegations.¹ On remand, the chancery court granted Chester a divorce based on adultery. Using the evidence obtained from the divorce hearing nearly three years prior, the chancery court awarded Chester temporary custody of Laiklynn but stated the custody arrangement would be re-examined in six months. The custody-review hearing occurred approximately one year later.² The chancellor stated she would not reweigh the Albright³ factors and would only hear new evidence that developed since the temporary custody order on remand. After the hearing, the chancery court awarded Chester permanent physical custody of Laiklynn.

¶2. Tiffany appealed, challenging the chancery court's grant of permanent custody to Chester. She also claims the chancery court erred in awarding temporary custody to Chester based on "stale evidence" without granting Tiffany a hearing on any "newly discovered" evidence under Mississippi Rule of Civil Procedure 59. Tiffany requests this Court reverse and render the chancery court's grant of permanent physical custody to Chester or reverse and remand for a new hearing on custody. Finding no error, however, we affirm the grant of permanent custody to Chester.

FACTS AND PROCEDURAL HISTORY

¶3. The parties married in 2007 after dating for about two years. Before Tiffany married Chester, she was aware that he had been convicted of murder in 1992 and served thirteen years in prison before being released in 2004.⁴ Chester is on lifetime supervised parole. Their only child, Laiklynn, was born in June 2011. About a year later, the couple bought a house in foreclosure two doors down from the home of Chester's mother in Greenville, Mississippi. However, Tiffany did not get along with her mother-in-law, and Chester was aware that Tiffany had not wanted to move so close to her. The house is in Tiffany's name and had $36,000 in equity at the time of the divorce hearing. Usually, Tiffany paid the mortgage, and Chester paid the insurance. Neither party had paid property taxes for the last few years.

¶4. Chester's mother was a retired teacher and provided child care for the couple until February 2015 when Laiklynn began attending Tender Ages Christian Academy in Greenville. Tiffany primarily paid her tuition. At some point Tiffany also obtained health insurance for Laiklynn.

¶5. Both parties earned bachelor degrees from Mississippi Valley State University. Chester received his degree in 2007. In April 2013, Chester began working at Allegiance Specialty Hospital as a materials manager assistant. Prior to that job, he worked at a local community action agency for three years before being laid off. Since October 2015, Tiffany has been employed as a sales associate at AT&T. Prior to that position, Tiffany had at least four jobs over a six-year period from which she has been terminated.

¶6. The parties’ marriage began to disintegrate around March 2014. Tiffany began staying out late several times a week without telling Chester her whereabouts while Chester stayed home and cared for Laiklynn. When Tiffany was at home, she would often isolate herself from Chester and Laiklynn, and engage in conversations and text messages on her cell phone. Chester complained that Tiffany also quit performing her "wifely duties" such as laundry, cooking, companionship, and sex.

¶7. In November 2014, the parties separated. Chester began living with his mother, while Tiffany and Laiklynn stayed at the marital home. In March 2015, Chester filed for divorce, and in April 2015, Tiffany answered and filed a counterclaim for divorce. Both parties alleged adultery, cruel and inhuman treatment, or, in the alternative, irreconcilable differences.

¶8. Regarding her claim of adultery, Tiffany stated that shortly before purchasing the marital home in 2012, she found Chester at her girlfriend's apartment. Chester and her girlfriend work together, and Tiffany believed she had caught him committing adultery. Chester claimed Tiffany was having an affair with a former male co-worker named Marcus who lived in Maryland. Chester said Tiffany routinely stayed out until three or four o'clock in the morning. In January 2015, Chester caught Tiffany after midnight at Harlow's Casino in Greenville accompanied by Marcus. That evening, Chester had become suspicious when a casino charge was put on the Gossetts’ joint bank account that was the same amount as a casino hotel-room charge. The next morning, Chester photographed Marcus leaving the casino hotel carrying what he claimed was Tiffany's pink overnight bag. Marcus left in Tiffany's vehicle. Tiffany admitted to gambling with Marcus that night but denied having an affair.

¶9. Regarding her claim of cruel and inhuman treatment, Tiffany stated that her confrontations with Chester became violent on a few occasions. Chester claimed that Tiffany continually threatened to call the police or his parole officer, fabricating accusations of assault that could cause his parole to be revoked and him to serve a life sentence in prison.

¶10. A few months after Chester's filing for divorce, the chancery court entered an order for temporary relief on June 30, 2015, granting Tiffany temporary custody of Laiklynn and Chester scheduled visitation. On January 26, 2016, a final hearing for divorce was held before Chancellor Wilson. On March 9, 2016, the chancellor issued a final judgment, denying the parties’ requests for a divorce and terminating the temporary-relief order on custody. Because the final judgment denied the requests for divorce, there was no analysis of the evidence regarding custody of Laiklynn. The parties remained estranged, and Laiklynn continued to reside with Tiffany. Chester appealed the denial of his request for divorce, arguing he provided sufficient evidence to establish both fault-based grounds. Gossett , 248 So. 3d at 924 (¶1). This Court affirmed the chancery court's ruling in part but reversed on Chester's adultery claim, remanding the case with specific instructions for the chancellor to re-examine witness credibility and conflicts in the evidence on the claim. Id. at 928 (¶¶2, 19).

¶11. Upon remand, on July 31, 2018, Chancellor Wilson entered an order and final judgment, changing her previous decision of March 9, 2016, and granting Chester a divorce from Tiffany based on adultery. The chancery court also granted temporary custody of Laiklynn to Chester after applying the Albright factors to the evidence obtained from the hearing on January 26, 2016. The court found three of the Albright factors favored Chester—continuity of care prior to separation, employment, and stability of the home environment and employment. No factors specifically favored Tiffany except "other relevant factors" related to the parent-child relationship. The chancellor commented that "[h]aving observed the demeanor and attitude of [Chester]," she was concerned that even though the Albright factors clearly favored him, "his obvious intent is to punish the mother by alienating the child from her mother, and ... have his mother raise the child." The court found this result would not be in the best interest of the child and therefore awarded only temporary custody to Chester, with the determination to be revisited in six months.⁵

¶12. On July 30, 2018, Chester was suddenly terminated from his job at Allegiance, where he had been employed for over five years. Tiffany claims Chester was fired because it was discovered he had not disclosed his felony conviction on his initial employment application. A letter from the company to Tiffany's attorneys dated October 2018 confirmed Chester was "terminated/released" because he was "a convicted felon which goes against the standard of operation for Mississippi hospitals." However, Chester claims he did disclose his conviction of murder on his application and had a background check placed in his personnel file. Indeed, the record corroborates Chester's claim.⁶

¶13. In response to the order and judgment on remand, on August 10, 2018, Tiffany filed a motion for an emergency hearing⁷ based upon "newly discovered evidence," a motion to set aside the final judgment on remand, and a motion requesting a new trial, all under Rule 59. The chancery court denied her request for an emergency hearing on custody but did order "a custody review hearing ... regarding the concerns of the court as expressed in the Final Judgment on Remand regarding the success or failure of the temporary custody order. ..."⁸

¶14. In December 2018, Chester moved back into the marital home, where he has remained. Laiklynn has been in his custody since July 31, 2018. Since his job loss at the hospital, Chester started various entrepreneurial endeavors to earn a living.

¶15. The custody-review hearing was held on June 26, 2019, before Chancellor Barnes. She stated she would not reweigh the Albright factors analyzed by Chancellor Wilson at the July 31, 2018 hearing and based upon evidence heard at the January 2016 divorce hearing, but she would hear any evidence "which had any bearing...