Stewart v. Stewart

309 So.3d 44

Kim STEWART, Appellant

v.Greg STEWART, Appellee

NO. 2018-CA-01542-COA

Court of Appeals of Mississippi.

November 17, 2020

ATTORNEY FOR APPELLANT: JONATHAN MICHAEL FARRIS

ATTORNEY FOR APPELLEE: SHAWN M. LOWREY, Hattiesburg

EN BANC.

CARLTON, P.J., FOR THE COURT:

¶1. Greg Stewart and Kim Stewart (n/k/a Stinson) were divorced on December 29, 2015, under a divorce decree entered in the Perry County Chancery Court. Kim was granted physical custody of the parties’ two minor girls, with Greg having visitation and the parties sharing legal custody of the girls. Less than eight months later, Greg filed a complaint for custody modification seeking sole physical custody of the girls. On September 5, 2018, the chancery court entered its "Opinion and Final Judgment," granting Greg sole physical custody of the girls, with Kim having visitation rights and the parties sharing legal custody of the girls. In the same final judgment, the chancery court also (i) ordered Kim to pay 70% and Greg to pay 30% of the remaining guardian ad litem (GAL) fees; (ii) granted Greg's "Motion for Contempt and Sanctions," ordering Kim to pay reasonable attorney's fees relating to that motion; and (iii) ordered Kim to pay Greg $5,330 in attorney's fees and court costs under Mississippi Code Annotated section 93-5-24(9)(c) (Rev. 2018) for her unfounded allegations against Greg.

¶2. Kim appealed.¹ For the reasons addressed below, we affirm the chancery court's final judgment in all respects.

¶3. Greg filed a "Motion for Appeal Fee" under Mississippi Rule of Appellate Procedure 27(a). We deny Greg's motion without prejudice to his right to refile his request prior to the issuance of the mandate in a motion that complies with Rule 27(a) and the requirements of Latham v. Latham , 261 So. 3d 1110 (Miss. 2019).

PROCEDURAL HISTORY AND FACTS

I. Pre-trial Proceedings

¶4. Greg and Kim were divorced on December 29, 2015, pursuant to a divorce decree entered in the Chancery Court of Perry County, Mississippi. In that judgment, Kim was granted physical custody of the parties’ children, Laura,² a girl born in October 2003, and Hannah, a girl born in November 2006. Greg is Laura's adoptive father and Hannah's natural father. Greg was granted visitation, and both parties were granted legal custody of the girls.

¶5. This appeal concerns Greg's subsequently filed "Complaint for [Child Custody] Modification and Temporary Relief" that the chancery court granted on September 5, 2018, as well as sanctions imposed against Kim in that same final judgment. Below is the procedural history and facts relating to the issues on appeal. To avoid repetition, additional facts and circumstances relating to the Kim's assignments of error will be discussed as these points are addressed in the discussion section of this opinion.

¶6. Less than two months after the divorce was granted, litigation ensued concerning the children. In late January 2016, Laura and Hannah were at Greg's home for visitation. There was an altercation between Greg and Laura that resulted in Laura calling 911. When Greg understood that Laura was on a 911 call, he took the phone and spoke to the dispatcher. Greg explained that he and his daughter had a conflict but that everything was fine, and there was no need to send an officer. No officer was sent.

¶7. When Kim learned of this conflict, she did not require Laura to go to visitation with Greg, but she allowed Hannah to go. These circumstances led to Greg filing a motion for contempt on February 23, 2016, due to Kim's non-compliance with the court-ordered visitation. Three days later, Kim filed a "Motion to Hold Visitation with Specific Child ([Laura]) in Abeyance." In this motion, Kim also requested that the chancery court "appoint a special expert[ ] to determine when and if visitation should resume."

¶8. The chancery court held a hearing on March 2, 2016, concerning these motions and other motions not at issue in this appeal. Shannon Rainey, a Licensed Professional Counsel or LPC, testified at the hearing at Greg's request. She testified about her professional relationship with the parties, having counseled Kim and the girls since 2014 and Greg beginning after the divorce trial, both individually and with Laura. Rainey also testified that Kim did not attend a joint session that she had been invited to take part in.

¶9. Regarding the 911 incident, Rainey testified that she had not had a counseling session with Laura since that event occurred. Kim's counsel requested on the record that Rainey "talk to her [Laura] and report back to the court" regarding the 911 incident.

¶10. Greg testified about the 911 incident, stating that he told Laura to brush her hair and teeth before she went out and that she responded, "No. I'm 12 years old. I'm old enough to know when I need to brush my teeth and brush my hair." Greg said he told her, "You are going to do it now or you're not going outside." According to Greg, Laura "flopped down" and got her shoes and was putting them on. He told her, "No," and "got her by the arm and walked her [into her bedroom]." He testified that he then told her, "You are going to do what I told you," and she got her cell phone and called 911. Greg further testified that he was not allowed to have Laura on his scheduled visitation on two weekends. Kim did not produce any evidence of bruises or any type of injury to Laura with respect to the 911 incident.

¶11. At the end of the hearing the chancery court ordered that Kim, Greg, and both minor children continue in family counseling with Rainey; the court ordered that Rainey was to investigate "the circumstances and events surrounding the [911] call," and report to the chancery court her findings and recommendations. This was done with Rainey's agreement and the agreement of counsel. The chancery court memorialized this bench ruling in its "Order for Family Counseling" entered on March 14, 2016. In that order the chancery court also ordered that "all parties are ... to fully cooperate and participate in the counseling as directed by the counselor."

¶12. Further, after hearing Rainey's testimony and the testimonies of Kim and Greg, the chancery court held that "the evidence presented establishes that [Greg's] actions with [Laura] were parental discipline as opposed to any kind of abuse or injury or harm, [and therefore] the [c]ourt is going to find that [Greg] has prevailed on his motion for contempt, and the [c]ourt is going to cite [Kim] for contempt for denying [Greg] his two weekends of visitation with [Laura]."

¶13. Rainey held a counseling session with Kim and Greg on March 26, 2016, and held a counseling session with Laura on April 12, 2016, pursuant to the court's order. On May 9, 2016, Rainey submitted her report to the chancery court, which was distributed to counsel and the GAL. Rainey's report contained a summary of her April 12, 2016 session with Laura and was admitted at trial as Exhibit 16, and her progress notes regarding that session were admitted at trial as Exhibit 18. Rainey summarized the circumstances surrounding the 911 call as follows:

[Laura] reported that she called 911 on [her father] because he tried to get her to brush her teeth. I asked her to tell me more about that incident and she described it in detail. She reported they were going to go somewhere and Greg asked her to brush her teeth and her hair. She told him she did, ... [and then] told him she wasn't going to do it again. She reported that Greg grabbed her by the arm and pushed her into her room (bedroom). She stated they get sent to their room as a form a punishment. When he pushed her by her arm she stated that she fell onto the floor. I asked if she had bruises, cuts, etc and she replied, "No ma'am." She stated that he then shut her door and she found her cell phone and called 911. I asked what made her call 911? She reported that her grandfather and grandmother had always taught them to call 911 if they were ever in trouble. She also stated that her mom told them to do the same when she dropped them off for weekend visitation with her dad. She reported that Greg came into the room and took her phone outside and talked to the police. Once the incident was over she said her dad told her he was disappointed in her. That was the end of the "controversy" according to [Laura].

¶14. Rainey's recommendation, as set forth in her report, was as follows:

I feel that this was not an incident that warranted calling the police. There appeared to be no abusive interaction. The child reports that Greg did not hit or place his hands on her other than to put her in her room. I believe that [Laura] is extremely emotional around interaction with her father, therefore she "experienced" something that was much worse than it really was.

I continue to recommend that the father and the child attend therapy to work through the issues that are keeping the child angry. I also recommend that Kim receive therapy around [sic] allowing the child to have a relationship with the father. Kim avoids interaction with Greg in my presence and the child imitates that behavior.

¶15. The day after receiving Rainey's report and recommendation, the chancery court entered its order denying Kim's motion to hold Laura's visitation with Greg in abeyance and granting Greg's motion for contempt. The chancery court further ordered family counseling to continue with Rainey.

¶16. Less than two weeks later, after having received Rainey's report, Kim filed a motion to amend the chancery court's May 10, 2016 order, seeking to have Rainey removed as the court-appointed counselor. Kim asserted that Rainey's alleged "lack of professional objectivity has affected Ms. Rainey's professional judgment and lessened her effectiveness in attempting to aid these parties in reaching a resolution to the issues they are currently facing as a family." Kim admitted in her motion that she had recorded the March 26, 2016 session that she and Greg had with Rainey, and Kim also admitted...