Wilbourn v. Wilbourn

388 So.3d 580

Victoria WILBOURN, Appellant/Cross-Appellee

v.Richard WILBOURN, III, Appellee/Cross-Appellant

NO. 2018-CA-01653-COA

Court of Appeals of Mississippi.

02/27/2024

Rehearing Denied June 18, 2024

MADISON COUNTY CHANCERY COURT, HON. LARRY BUFFINGTON, JUDGE

ATTORNEYS FOR APPELLANT: MATTHEW THOMPSON, Jackson, WILLIAM TERRELL STUBBS

ATTORNEYS FOR APPELLEE: CECIL MAISON HEIDELBERG, CYNTHIA H. SPEETJENS, JOHN ROBERT WHITE, Ridgeland

BEFORE CARLTON, P.J., WESTBROOKS AND EMFINGER, JJ.

WESTBROOKS, J., FOR THE COURT:

¶1. Victoria Wilbourn (the mother) appeals from the Madison County Chancery Court’s final judgment of custody, child support, and visitation. Victoria argues that the chancellor erred when he awarded Richard Wilbourn III (the father) physical custody of their children during the summer. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2. Victoria is a native of Ukraine and has family there. While Richard was visiting Ukraine as a part of his Christian ministry, he met Victoria. They married in 1999 and had two daughters: S.W. was born in 2001, and D.W. was born in 2003. Over the years, their marriage suffered because neither of them felt loved or respected by the other. After participating in marriage counseling at Live Oaks Counseling and continuing with the counseling for approximately three years, Victoria desired separation.

I. Complaint for Separation

¶3. On October 24, 2006, Victoria filed a "Complaint for Separate Maintenance and For Protection from Domestic Abuse" against Richard, alleging that Richard had been physically and mentally abusive to their daughters. In the complaint, Victoria sought a protective order against Richard to restrain him from coming onto the premises of their marital home, which was located in Ridgeland, Mississippi. On October 25, 2006, after Chancellor William Lutz’s urging, Richard agreed to the entry of a temporary protective order.

¶4. After Victoria’s allegation of abuse, the Mississippi Department of Human Services became involved. Willie Garner, an investigator in the Madison Family and Children Services Division, noted in his investigation report that Garner arrived at the marital home on the day Victoria filed her complaint for separation.

A. Investigator Willie Garner

¶5. Willie Garner submitted his investigation report on October 31, 2006. Investigator Garner did not find any evidence of emotional or physical abuse, finding no evidence to show "that they [had been] emotionally abused." Because Richard and Victoria admitted that Richard would spank the children with a fishing rod, Garner classified the case as one of "prevention" and recommended that the parents take parenting classes to educate themselves on "alternative methods of disciplining."

¶6. On November 10, 2006, Chancellor Lutz appointed John Elliot as the guardian ad litem (GAL) in this case. On November 16, 2006, Chancellor Lutz entered an "Agreed Order Granting Temporary Relief," which ordered "[n]either party [to] spank the minor children" and for Richard to begin counseling. Chancellor Lutz further ordered both parents to attend a parenting class held by Dr. Angela Herzog.¹

B. The GAL John Elliot

¶7. Elliot did not provide his first GAL report until January 25, 2007, concluding that there were no signs of physical abuse. Elliot came to this conclusion partly because of statements Victoria and Richard made.

¶8. During Victoria’s interview, she stated that although Richard only spanked the children for disciplinary reasons, she believed he spanked them too hard. Victoria believed that punishment should involve taking away things that the girls enjoy, such as candy. This difference in parenting resulted in Victoria’s allegation of Richard abusing the children because the spankings sometimes caused bruising on the children’s bodies.

¶9. In response, Richard told Elliot that Victoria’s photographs, depicting S.W.’s bruise marks, were the direct result of her body "bruis[ing] easily," as corroborated by medical documents from her doctor, not from any extreme cruel and unusual punishment.

¶10. When Elliot observed the children at the marital home, he watched them interact with Richard. After observing the children, Elliot concluded that they "appeared to love their father and enjoy his company." He also concluded that the children did not appear afraid of Richard. Elliot then provided further details about Richard’s and Victoria’s parenting style. In Elliot’s opinion, Richard appeared to be a stricter parent who believed in disciplining the girls by spanking them with a switch, whereas Victoria did not. Elliot ultimately found that the disciplinary issues between the parties were due to their "cultural and familial differences." In his opinion, Richard did not abuse the children.

¶11. In his second report, Elliot mentioned a conversation he had with Richard about him bathing the children. Richard provided Elliot with a list of the dates and the number of times that he bathed them. Elliot believed that Richard was very active with the children and that the parents did not trust each other because of the ongoing litigation. Elliot recommended that the parents continue with marital counseling. He found that the children were safe and that the issue of ‘abuse’ was moot.

II. Complaint for Divorce

¶12. On April 3, 2007, Victoria filed a "Complaint for Divorce and Other Relief" on the ground of habitual cruel and inhuman treatment or, in the alternative, irreconcilable differences. Victoria did not reference any specific incidents to show or describe Richard’s allegedly cruel and inhuman treatment but, instead, asserted that Richard’s actions continued to affect her physical, mental, and emotional wellbeing. In addition to a divorce, Victoria requested that she receive sole physical and legal custody of the children. Separately, Victoria moved to consolidate her October 2006 and April 2007 complaints.

¶13. On April 26, 2007, Victoria filed a petition for an independent medical evaluation. In this petition, Victoria alleged for the first time that Richard bathed with the children before or while they were ages five and three. Richard answered Victoria’s complaint for divorce and attached a counterclaim for sole physical and legal custody of the children.² Richard denied that he had engaged in habitual cruel and inhuman treatment. He further denied all abuse allegations.

¶14. On April 27, 2007, Richard moved for temporary relief. He requested that he be given sole legal and physical custody of the children and shared use of the marital home during the pending litigation. On May 17, 2007, Chancellor Brewer entered her "Second Order Granting Temporary Relief." In the order, the chancellor explained that she limited the evidence presented to events that occurred after the November 2006 "Agreed Order Granting Temporary Relief." She then awarded the parents joint legal and physical custody of the children, while keeping the other terms of the November 2006 agreed order in place. On June 11, 2007, by agreement of the parties, the chancellor ordered Richard and Victoria to undergo independent medical evaluations by Dr. Criss Lott.

¶15. On August 3, 2007, Dr. Lott submitted his psychological evaluation report. He opined that while Victoria had concerns about Richard’s "bathing with the girls," she did not report the allegations to anyone until she met Dr. Mary Brown, the clinical psychologist. Dr. Lott’s report further explained that because Victoria’s father had told Richard to stop bathing with the children in 2007, Richard stopped bathing with them around that same time.

¶16. Dr. Lott also wrote about the notes he received from Dr. Herzog, the doctor who supervised the parenting class. In these notes, Dr. Herzog asserted that the children were scared of being spanked by Richard because he spanked them with a fishing rod that would leave bruises. S.W. did not know that the spankings were "bad" until her mother told her. In the report, Dr. Lott explains that Richard’s mother had once witnessed Richard spank the children and found it to be "horrendous." There was also a further indication from S.W. that Richard did not wear clothes when he was bathing the five- and three-year-old girls.

¶17. Dr. Lott received records from Dr. Brown as well. According to Dr. Brown’s notes, Victoria was very concerned with Richard’s anger issues and his spanking the children. Dr. Brown noted that Victoria had told her Richard "stopped bathing with the children after her father told him it was not appropriate."

¶18. After testing the parents, Dr. Lott found that Victoria did not have any problems with functioning or regulating her mood. Dr. Lott further found that Richard appeared to have the character profile of a person with "chronic, intense anger." Dr. Lott stated that "brief episodes of aggressive acting out may occur" and that people with this profile "tend to blame other people for their problems." Dr. Lott also observed that the children interacted well with both parents and found "no signs of anxiety or apprehension with either parent."

¶19. Dr. Lott surmised that neither parent has a mental health disorder. Dr. Lott opined that Richard’s "parenting style [was] more authoritarian." In regard to the "bathing issue," Dr. Lott concluded that S.W. did not "describe any inappropriate behavior by the father." Richard had informed Dr. Lott that he (Richard) had not bathed with the children "in the past three years." Dr. Lott also noted that Victoria had told him "she did not believe that [Richard] had sexually abused the children."

¶20. In Dr. Lott’s opinion, "there [was] no indication of sexual abuse."

III. Custody Trial

¶21. On July 10, 2007, the trial was scheduled to be held on July 6, 2007. On July 5, 2007, by agreed order, the trial was continued to August 7, 2007. After additional discovery, the trial was continued to September 25, 2007.

¶22. On September 7, 2007, Richard moved to modify the second order granting...