Kreppner v. Kreppner

341 So.3d 132

Brittany L. KREPPNER, Appellant

v.William D. KREPPNER, Appellee

NO. 2021-CA-00006-COA

Court of Appeals of Mississippi.

March 22, 2022

Rehearing Denied June 14, 2022

ATTORNEY FOR APPELLANT: WILLIAM W. DREHER JR., Gulfport

ATTORNEY FOR APPELLEE: HERBERT J. STELLY, Gulfport

BEFORE BARNES, C.J., McCARTY AND SMITH, JJ.

McCARTY, J., FOR THE COURT:

¶1. Just a few months after agreeing to a custody order that severely limited her visitation with her daughter, a mother sought modification of the terms. Finding she had not met her burden of proving a material change in circumstances, the chancery court denied the motion. As this decision was within the chancery court's discretion, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2. For the past seven years since her parents' agreed custody order, nine-year-old Katie has lived almost exclusively with her father.¹ While William and Brittany Kreppner share legal custody of their daughter, the father has what is in effect sole physical custody.

¶3. The Kreppners’ divorce was a contentious one, with both parties initially filing on fault-based grounds. But ultimately the couple was granted a divorce based on irreconcilable differences. The parents' agreed custody order provided William would have physical custody.

¶4. Under the agreed terms, Brittany had extremely restricted visitation with her daughter, seeing her every other weekend. Notably, even this limited visitation was required to be supervised. And as the non-custodial parent, Brittany agreed to pay $200 per month in child support.

¶5. Seven months after the divorce, Brittany petitioned the court for modification of custody. Many of Brittany's concerns were related to William's new wife, Bridget.² For instance, Brittany claimed that William allowed Katie's new stepmother "to interfere with such love and affection of the child for the Mother" and that Bridget "has shown nothing but scorn and hate" for Brittany. She further contended that William and Bridget "refuse[d] to allow the minor child any telephone contact" with her mother and are using Katie as "a pawn and an instrument to harm" Brittany.

¶6. The mother's motion also included a request for the court to find her ex-husband in contempt. She provided a list of ways William refused to comply with his duties as custodial parent. For example, she alleged William "capriciously and arbitrarily refuse[d] to share in the decision-making rights, the responsibilities and the authority relating to the health, education and welfare" of their daughter. Brittany further claimed William does not allow her "to attend any appointment or function involving the minor child" or allow her to access Katie's school or medical records.

¶7. In concluding her motion, Brittany requested "paramount physical care[,] custody[,] and control of the minor child with the Father having visitation with certain restrictions." She claimed "there has been a material and substantial change in circumstances to the detriment of the minor child" that warrants a change in custody. The mother pointed out that William's job "keeps him away from the minor child for long periods of time" and therefore Katie is "being kept by her step-mother who has shown nothing but scorn and hate for" Brittany.

¶8. Brittany alleged a change in custody was warranted because the "attitude and actions displayed by the Father and step-mother are intentional, confusing[,] and detrimental to the minor child's health, safety and welfare." As an alternative to modification, Brittany requested additional visitation without supervision, claiming "any reason for continued supervised visitation has long disappeared."

¶9. Following Brittany's modification request, the parents signed an agreed temporary order allowing her additional visitation without supervision. The order also required the parties to attend a co-parenting class and enjoined them from drinking or smoking in Katie's presence. With the exception of these alterations, the original custody agreement remained "in full force and effect."

¶10. Within a year of signing this agreed order, the mother again sought modification. Her renewed motion mirrored the first motion for modification in asserting that William's marriage to Bridget—and the resulting issues from the stepmother's presence—constituted a material change in circumstances detrimental to the child. Specifically, she reiterated her claim that William and Bridget interfere with the child's relationship with Brittany, and that the father and stepmother use the child "as a weapon to punish" her. She further alleged that William and Bridget "have entered into a deliberate plan to alienate the minor child from her mother." Brittany again concluded her motion by requesting "paramount physical care[,] custody[,] and control" of Katie.

¶11. The mother also renewed her motion for contempt, raising many of the concerns outlined in her first motion—namely that William "refuses to share in the decision-making rights" concerning the child's health and education. In responding to Brittany's request for modification, William counterclaimed for contempt and modification. He asked that some of Brittany's visitation be limited and her child support be increased.

¶12. The chancellor appointed a guardian ad litem, Kelly M. Rayburn. He also appointed Dr. Jule P. Miller to perform a forensic interview with the child and her family. Over the next year, these specialists gathered information regarding Katie's well-being and relationship with her parents, and produced reports of their findings.

¶13. Dr. Miller met with Katie and her family on several occasions. First, he interviewed the child and her mother together, then the child and her father. He noted the child has a "reasonable attachment to her mother," and likewise a "good attachment to her father and stepmother." He also observed Katie has a close relationship with both of her brothers and "is influenced by whomever she is around."³ The specialist conducted two different forensic tests during the various visits with Katie, which revealed she "is suffering from significant anxiety, sadness, and anger that she is trying to keep unconscious through the coping mechanisms of denial and avoidance."

¶14. Dr. Miller sat down with Brittany and William together to discuss the parents' concerns about Katie and their relationship with each other. He also met with all four of the parents at once. In this session, the doctor noted that the stepmother was "filled with rage and seemed unable to get past it," which he thought was "concerning for future coparenting." Dr. Miller opined that the child's "attachment to her mother is interfered with by the conflict" between her mother and stepmother.

¶15. Overall, Dr. Miller concluded the child "comes across very well on the surface" and that she "is pleasant, attractive ... and is clearly bonded well with both mother and father." However, he opined that "just beneath that surface she is struggling with feelings of sadness, anger, and anxiety." He ended his report with the following opinion: "[A]fter meeting her stepmother, and experiencing first-hand how inflexible she was regarding [Katie's] mother, I believe that the only way [the] family will coparent is if her mother gets primary custody. It is essential that the adults learn to work together with less conflict."

¶16. Guardian ad litem Kelly Rayburn also met with Katie and each of her parents. In addition, he interviewed and collected affidavits from people who knew and interacted with the families. Following his investigation, Rayburn expressed "serious concerns regarding parental alienation, particularly in light of Dr. Miller's observations ...." Rayburn relied heavily on Dr. Miller's report in forming his opinion, noting the findings give him "considerable pause" in leaving the custodial arrangement unchanged.

¶17. At the same time, though, Rayburn observed that "the child is healthy and happy in [William's] home and that she is doing well in school." He wrote in his report, "As a layperson, my observations of the child suggest that she has adapted to living with her father and having visitation with her mother."

¶18. Ultimately, while the guardian ad litem believed there was a "material change in circumstances that is detrimental or harmful to the child," he declined to give a recommendation regarding custody, explaining that "the Court is the ultimate determiner of whether a custodial change should take place."

¶19. The Stone County Chancery Court held a two-day hearing on Brittany's motion for contempt and modification. At the outset the parties agreed to enter into evidence the reports from Kelly Rayburn, Dr. Jule Miller, and Dr. Kevin Passer.⁴

¶20. The guardian ad litem took the stand first, explaining his investigation and the findings of his report. Rayburn's testimony largely followed his report. When asked, Rayburn acknowledged an unsubstantiated allegation by the mother that Bridget had slapped Katie, as well as another unsubstantiated claim that a family member had acted in an inappropriate manner toward the child. The guardian ad litem quickly rejected these claims and confirmed that to his knowledge there had been no abuse or neglect.

¶21. Another witness, a CPS worker who had investigated the family and visited William's and Bridget's home, testified that Katie "didn't show any signs of neglect" or "any signs of being fearful" of her father or stepmother "at all."

¶22. As Katie's therapist, Stephen Midgette provided testimony about his interactions with Katie and her family. Based on his sessions with the child for over the past year, Midgette said he does not believe there has been "any alienating effect" on Katie. He also observed that the child related just as well to her mother as her father.

¶23. In her testimony, Brittany reiterated and further explained her complaints about William and his new wife—primarily Bridget's hostility toward her and interference with her relationship with Katie. S...