Patrick v. Patrick

1

DANA M. PATRICK APPELLANT v. CHRISTOPHER L. PATRICK APPELLEE

No. 2021-CA-00891-COA

Court of Appeals of Mississippi

March 5, 2024

DATE OF JUDGMENT: 01/06/2021

RANKIN COUNTY CHANCERY COURT HON. TROY FARRELL ODOM TRIAL JUDGE

ATTORNEY FOR APPELLANT: JOHN G. HOLADAY

ATTORNEY FOR APPELLEE: SHARON PATTERSON THIBODEAUX

BEFORE BARNES, C.J., LAWRENCE AND EMFINGER, JJ.

EMFINGER, J.

¶1. On January 6, 2021, a judgment was entered in the Rankin County Chancery Court denying Dana M. Patrick's "Petition for Contempt and for Modification" and granting Christopher L. Patrick's "Motion for Modification of Custody." Aggrieved by the court's decision, Dana appeals.

FACTS AND PROCEDURAL HISTORY

¶2. Dana and Christopher Patrick married on April 26, 2010, in Rankin County. Two sons were born of the marriage, B.P., born in June 2010, and E.P., born in August 2011.^[1] Dana and Chris separated on November 17, 2012, and Dana filed a complaint for divorce on December 19, 2012. A "Final Judgment of Divorce-Irreconcilable Differences" was entered on September 9, 2014. A "Child Custody and Support and Property Settlement Agreement" was signed by the parties and incorporated into the final judgment by court order. The parties agreed to share joint legal and physical custody of the minor children.

¶3. The parties filed several motions after the entry of the final judgment of divorce, both in chancery court and in youth court. The bulk of these motions, spanning a six-year period, involved allegations of child abuse and efforts to modify custody. Some of these motions and rulings will be discussed below as they relate to specific assignments of error.^[2] As noted above, this appeal stems from the judgment entered in chancery court on January 6, 2021. This judgment was rendered after seven days of trial related to Dana's "Petition for Contempt and for Modification," which had been filed on January 15, 2019 and a portion of Chris' "Motion for Temporary Restraining Order, Citation of Contempt, and Modification of Custody," which had been filed on November 17, 2017. The court denied Dana's request for relief but granted Chris' request for modification of custody. The chancellor found that Dana had created a change in the "custodial environment detrimental to the children's well-being." Then, after conducting an Albright analysis,^[3] the chancellor awarded Chris sole physical and legal custody of the minor children. Dana appealed.

ANALYSIS

¶4. The issues Dana raises on appeal are re-ordered, and some are restated or combined for purposes of this analysis.

I Dana contends that the trial court erred when it sua sponte modified legal custody of the minor children of the parties despite Chris not specifically requesting that relief in his "Motion for Temporary Restraining Order, Citation of Contempt, Sanctions, and Modification of Custody" or at the trial.

¶5. In this assignment of error, Dana contends that the trial court erred by modifying the original custody agreement that provided for joint legal custody of the minor children because the motion filed by Chris on November 17 2017,^[4] contains no request for the modification of legal custody.^[5] Dana further argues that because Chris did not request a modification of legal custody at trial, the issue of legal custody cannot be said to have been tried by consent as provided for by Mississippi Rule of Civil Procedure 15(b). Therefore, citing Purviance v. Burgess, 980 So.2d 308 (Miss. Ct. App. 2007), and Massey v. Huggins, 799 So.2d 902 (Miss. Ct. App. 2001), Dana contends that the chancellor's sua sponte modification of legal custody violated her due process rights and requires reversal of the judgment.

¶6. The issue of legal custody was clearly before the court at Dana's request. In her motion for modification, Dana requested that the custody provision be modified to award her "full legal and physical custody" of the minor children. At the beginning of the trial, there was an exchange between the court and counsel for both parties concerning which matters would be addressed at trial. In addition to Dana's petition for modification, Chris' counsel argued that Chris' motion for a temporary restraining order and for "immediate emergency sole care, custody and control of the minor children" was also scheduled to be heard. In this motion, which was filed on April 12, 2019, Chris alleged that Dana had caused "permanent and irreparable injury, harm and/or damage to the minor children of the parties." Chris sought an order awarding him "immediate, sole temporary physical and sole legal custody of the minor children of the parties until the final hearing of this matter." In concluding this motion, Chris prayed for "such other and further relief as he may be entitled to in the premises." The chancellor found that "all the issues are interwoven" and that there was no need to bifurcate the trial of the various motions. Accordingly, there can be no allegation of surprise on Dana's part that legal custody would be at issue at trial or that Dana was unprepared to address issues of legal custody.

¶7. While we agree that Chris' emergency motion for modification of custody does not clearly contain a request for a permanent modification of legal custody, we cannot agree that the matter was not raised at trial. During direct examination by his counsel, the following exchange occurred:

Q. Okay. What are you asking this court to do?

A. Give me custody.

Q. What kind of custody?

A. Full.

Q. Why?

A. To put a stop to all this....

It is clear from this exchange that Chris was asking the court to award him sole custody, both legal and physical, of the minor boys. There was no objection from Dana as to this request, therefore, the issue was tried by implied consent. In Murrell v. Brown, 202 So.3d 287, 290 (¶8) (Miss. Ct. App. 2016), this Court stated:

Rule 15(b) of the Mississippi Rules of Civil Procedure provides that "[w]hen issues not raised by the pleadings are tried by expressed or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings." The Mississippi Supreme Court has held: "[I]f evidence is offered by a party which is outside the scope of the pleadings and the other party fails to object, the opponent will be considered to have impliedly consented to the issue and the pleading will be amended accordingly[.]" Lahmann v. Hallmon, 722 So.2d 614, 619 (¶16) (Miss.1998) (citing Queen v. Queen, 551 So.2d 197, 202 (Miss.1989)); see also Renfroe v. Berryhill, 910 So.2d 624, 629 (¶20) (Miss. Ct. App. 2005) (finding that because the defendant "failed to object and . . . his actions at trial indicate[d] that he did recognize the entrance of the issue into the case, . . . the issue of [the plaintiff's] employment status was tried by implied consent") (citing Lahmann, 722 So.2d at 619 (¶¶15-16); Shipley v. Ferguson, 638 So.2d 1295, 1300 (Miss. 1994)).

¶8. Further, Mississippi Rule of Civil Procedure 54(d) states in part:

Every other final judgment should grant the relief to which each party is entitled if such relief is within the jurisdiction of the court to grant, even if the party has not demanded that relief in its pleadings.

In making a determination to modify child custody, this Court stated in Stuckey v. Stuckey, 341 So.3d 1030, 1036-37 (¶15) (Miss. Ct. App. 2022):

Our supreme court observed that "[a]bove all, in modification cases, as in original awards of custody, we never depart from our polestar consideration: the best interest and welfare of the child." Stewart [v. Stewart], 309 So.3d [44,] 82 (¶127) [(Miss. Ct. App. 2020)] (quoting Riley v. Doerner, 677 So.2d 740, 744 (Miss. 1996)). The court further explained:

The test we have devised for custody modification need not be applied so rigidly, nor in such a formalistic manner so as to preclude the chancellor from rendering a decision appropriate to the facts of an individual case. In particular, it should not thwart the chancellor from transferring custody of a child from one parent to another when, in the chancellor's judgment, the child's welfare would be best served by such transfer.

Id. (citations and internal quotation marks omitted) (quoting Riley, 677 So.2d at 745). (Emphasis added).

¶9. The parties had agreed to joint legal and physical custody at the time of the divorce, however, there is ample evidence in the record that this arrangement was not working. Concerning joint custody, in Waller v. Waller, 754 So.2d 1181, 1184 (¶13) &n.1 (Miss. 2000), the supreme court noted:

According to Vitauts M. Gulbis, Annot., Propriety of Awarding Joint Custody of Children, 17 A.L.R.4th 1013 1016 (1982) "[i]t has been held that the cardinal criterion for an award of joint custody is the agreement of the parties and their mutual ability to cooperate in reaching shared decisions in matters affecting the child's welfare." Indeed, in many jurisdictions, joint custody may not be awarded where the parties do not consent to or desire it. In re Marriage of Neal, 92 Cal.App.3d 834, 155 Cal.Rptr. 157 (1979) (joint legal custody was an abuse of discretion where the parties had not agreed to it); Imes v. Imes, 367 N.E.2d 1075 (1977) (where parents agreed that only one parent should have custody, trial court's award of joint custody reversed); In re Marriage of Burham, 283 N.W.2d 269 (Iowa 1979); In re Marriage of Handy, 605 P.2d 738 (1980); Berlin v. Berlin, 428 A.2d 1113 (1981).

Other courts have held that an award of joint custody is an abuse of discretion where the evidence showed that the parents could not cooperate. R.L.H. v. J.A.B., 642 So.2d 482 (Ala. Civ. App.1994); Hunter v. Hunter, 540 So.2d 235 (Fla. Dist. Ct. App.1989); Flournoy v. Flournoy, 546 So.2d 617 (La.App.1989); Wonser v. Wonser, 415 A.2d 881

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