Moreland v. Spears

368 So.3d 333

Kenneth MORELAND, Appellant v. Brandy SPEARS f/k/a Brandy Greenwood Moreland, Appellee

NO. 2021-CA-00714-COA

Court of Appeals of Mississippi.

January 3, 2023

Rehearing Denied May 09, 2023

ATTORNEYS FOR APPELLANT: ROBERT EUGENE JONES II, Brookhaven, MICHAEL J. MALOUF, Jackson

ATTORNEYS FOR APPELLEE: KIMBERLY COURTNEY KING, CONNIE MARIE SMITH, Jackson

BEFORE WILSON, P.J., GREENLEE AND EMFINGER, JJ.

GREENLEE, J., FOR THE COURT:

¶1. This appeal stems from a chancellor's decision to modify legal custody of a child by awarding it solely to the child's mother. The chancellor also modified the father's visitation. Finding no error, we affirm the chancery court's judgment.

PROCEDURAL HISTORY

¶2. Kenneth Moreland and Brandy Spears were divorced in August 2012 and entered into a child custody, support, and property settlement agreement ("Divorce Agreement"). It provided that Moreland and Spears would share joint legal custody of their minor child, L.M., ¹ while Spears would have primary physical custody subject to Moreland's visitation rights. The Adams County Chancery Court approved the Divorce Agreement in August 2012.

¶3. In October 2019, Spears filed a "Petition for Modification and Other Relief" seeking to modify the Divorce Agreement by awarding her sole legal custody of L.M. and restricting Moreland's visitation. Moreland filed an "Answer and Counterclaim for Contempt and Modification," seeking sole legal and physical custody of L.M. He also asked the court to find Spears in contempt for refusing some of his scheduled visitation with L.M.

¶4. The matter was tried over the course of a two-day hearing in June 2020. The chancellor entered a final judgment in July 2020 granting Spears sole legal custody of L.M., limiting Moreland's visitation with L.M., and denying Moreland's counterclaim for contempt. Moreland filed a motion to reconsider in August 2020, which the chancellor denied in May 2021.

¶5. Moreland appealed both the final judgment and the order denying his motion for reconsideration. He claims that the chancellor erred by: (1) awarding Spears sole legal custody of L.M.; (2) reducing and restricting his visitation with L.M.; (3) declining to find Spears in contempt of the judgment adopting the Divorce Agreement; and (4) refusing his request for attorney's fees.

STATEMENT OF FACTS

¶6. The relevant portion of the parties’ Divorce Agreement provides:

CHILD CUSTODY and VISITATION

The parties mutually agree that the best interest of the parties’ minor child namely, [L.M.], will best be served by the parties having joint legal custody of the minor child with the Mother having the primary physical custody of the minor child subject to the visitation rights of the Father as set forth hereinafter. The parties further agree to "exchange information concerning the health, education and welfare of the said minor [child], and to confer with one another in the exercise of decision making rights, responsibilities and authority" all as in accordance with Section 93-5-24(5)(e) of the Mississippi Code Annotated (1972). In the event the parties are unable to agree, the primary physical custodial parent shall have the decision making authority.

....

When the minor child begins four (4) year old preschool, Father shall have visitation with the minor child on the 1st, 3rd, and 5th weekend of each month beginning at the time school is dismissed on Friday until he returns the child to school on Monday. In the alternate weeks, when the Father does not have weekend visitation, Father shall have an overnight visit with the minor child beginning at the time school is dismissed on Thursday returning her to school on Friday morning prior to [Spears’] weekend visitation with [L.M.], and he shall also have visitation the Monday after school until returning [L.M.] to school on Tuesday on the Monday following [Spears’] weekend visitation.

Beginning the summer after [L.M.] starts school, the parties shall alternate weekly periods with the minor child during the months of June and July by exchanging the minor child on Friday at 5:00 p.m. each Friday with Mother having the first week in odd numbered years and Father having the first week in even numbered years.

The parties shall alternate the holiday visitation periods with the minor child each year. The Holiday periods take precedence to the regular visitation periods....

....

Both parties shall at all times advise the other of the whereabouts of the minor child during their custodial periods while out of town and shall provide him/her with a phone number and allow him/her to have reasonable phone contact with the minor child. Further, each parent shall have the right to a daily phone call with the minor child on days he or she does not have visitation with the minor child.

¶7. At the time of the hearing, L.M. was eleven years old and had just finished her fifth-grade year at a private school in Adams County. The evidence showed that L.M. was a smart, talented, and active girl. She maintained straight A's and practiced art and dance. She was involved in ballet and competitive cheer. She had several close friends.

¶8. Seven witnesses testified: L.M.; Moreland; Spears; Romana Finn, L.M.’s fourth-grade teacher; Amanda Dill, L.M.’s fifth-grade teacher; Angela Cotton, L.M.’s school principal; and Dr. Patricia Brawley, L.M.’s therapist.

¶9. Both of L.M.’s teachers and her principal provided similar testimony. They stated that L.M. was an intelligent student. But Finn noted that there were several instances when L.M. came to school crying or cried in the cafeteria or principal's office. She noted that those instances corresponded to the times directly before and after L.M.’s visitations with Moreland. She testified that L.M. never revealed the issues to her, but she realized "something [was] terribly wrong and [needed] to be thoroughly investigated." Finn wrote a sealed letter to Dr. Brawley detailing her concerns.

¶10. L.M.’s fifth-grade teacher, Dill, stated that she first became worried about L.M. after L.M. wrote a letter for their class "gratitude" box that read: "[She's] grateful that [her] dad is abusive because it makes [her] stronger." Dill discussed many instances of L.M. crying, shaking, or acting withdrawn. Dill stated that L.M. frequently did not have her homework completed after visitations with Moreland. Further, Dill discussed a moment when she asked L.M. why she was upset and L.M. disclosed that Moreland verbally abused her about her appearance and weight. On cross-examination, Dill admitted that Moreland stayed involved in L.M.’s studies and had asked her to reach out if they ever became an issue. Further, she noted that she had never discussed L.M.’s issues with Moreland.

¶11. L.M.’s principal, Cotton, testified that she personally noticed behavioral changes when L.M. was around her father. She had also been put on notice of these changes by several individuals, including Finn and Dill, the school's cafeteria staff, and L.M.’s close friends. Cotton also discussed L.M.’s issues surrounding eating. She stated that several people were concerned that L.M. would not eat any food while she was at school. When confronted, L.M. said it was because her father made her eat expired food and that she was nervous to eat any food around others.

¶12. L.M. testified about Moreland's eccentricities and controlling nature. She described several "rituals" that Moreland required her to perform while she was at his house. These included washing the soles of her shoes before she entered his home, removing her socks in a particular way, and changing clothes before she sat on any furniture. L.M. brought four to five outfits to Moreland's house because he told her what to wear. L.M. testified that most of the actions her father took involved some sort of time-consuming pattern of behavior, though Moreland denied the existence of any rituals beyond the ones for entering the house.

¶13. L.M. testified that she was required to ask permission before she used the bathroom, and Moreland stood outside the bathroom and instructed her how to bathe. ² Additionally, L.M. recalled a time when Moreland entered the bathroom as she was changing to smell her clothing and underwear for urine. Moreland then lectured her on hygiene. Moreland put L.M.’s socks on each morning, which L.M. did not describe as an affectionate interaction.

Moreland often took between 30 minutes to an hour to change her sheets.

¶14. L.M. gave more examples of Moreland's time-consuming and controlling behavior and specifically discussed various Walmart trips and spontaneous vacations. L.M. stated that on many occasions Moreland would take her to Walmart for shopping trips that lasted up to six hours, or that lasted until past midnight. She explained that Moreland would spend a substantial amount of time examining and comparing different items for sale. Dr. Brawley later testified that this was a reoccurring and significant issue that L.M. discussed during their therapy sessions. L.M. testified she was required to stay very close to her father the entire time, and that people had approached her to ask if she was okay. L.M. was aware that Moreland's behavior was not normal.

¶15. L.M. also discussed a trip to Gatlinburg, Tennessee. She explained that Moreland did not tell her in advance that they were leaving and that this upset her. She said that Moreland decided to drive all night on the first night of the trip and fell asleep several times on the journey. At one point, she took a photo of Moreland asleep at the wheel while parked at a gas station. Moreland denied ever having fallen asleep while driving. Once at their destination, L.M. testified that she and Moreland always left the condo late and missed many attractions because of it. She felt constantly rushed, and Moreland was angry at her for failing to provide good directions during the trip. Although there were photos of L.M. smiling, she stated that the trip was...