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Martin v. Stevenson

Court of Appeals of Mississippi

February 11, 2014

TANISHA HERVEY MARTIN, APPELLANT
v.
MARQUIS J. STEVENSON, APPELLEE

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[Copyrighted Material Omitted]

Page 742

COURT FROM WHICH APPEALED: LAFAYETTE COUNTY CHANCERY COURT. DATE OF JUDGMENT: 10/16/2012. TRIAL JUDGE: HON. EDWIN H. ROBERTS JR. TRIAL COURT GRANTED REQUEST FOR MODIFICATION OF CHILD CUSTODY.

FOR APPELLANT: ALSEE MCDANIEL.

FOR APPELLEE: DAVID L. CALDER.

BEFORE IRVING, P.J., CARLTON AND MAXWELL, JJ. LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, MAXWELL AND FAIR, JJ., CONCUR. JAMES, J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION. ROBERTS, J., NOT PARTICIPATING.

OPINION

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NATURE OF THE CASE: CIVIL - CUSTODY

CARLTON, J.

¶1. Tanisha Martin appeals an order by the Lafayette County Chancery Court granting a child-custody modification to Marquis Stevenson. Tanisha raises the following issues: (1) whether Marquis satisfied his burden of proof to establish the elements required for child-custody modification; (2) whether the chancellor properly applied the Albright [1] factors and made sufficient findings of fact under those factors; (3) whether the chancellor erred by modifying the child-custody agreement; (4) whether the chancellor erred by excluding evidence of Marquis's past acts of domestic violence; (5) whether the chancellor erred by finding Tanisha's report of abuse frivolous and imposing sanctions against her; and (6) whether the chancellor erred by ordering Tanisha to pay attorney's fees. Finding no error, we affirm.

FACTS

¶2. Marquis and Tanisha were married on June 4, 2001, in Oxford, Mississippi. The couple had one minor child, Haylea. The couple separated around March 1, 2009, and entered into a property-settlement and child-custody agreement. On October 21, 2009, the Lafayette County Chancery Court entered a final judgment granting the couple an irreconcilable-differences divorce. The divorce decree approved and incorporated by reference the property-settlement and child-custody agreement wherein the parties agreed to joint legal custody of Haylea, with Tanisha maintaining primary physical custody subject to Marquis's reasonable visitation rights.

¶3. On February 4, 2011, Marquis filed a petition in chancery court to hold Tanisha in contempt for frustrating his attempts to exercise his visitation and for refusing to allow him any contact with Haylea since January 2, 2011. Tanisha then filed a counterclaim for contempt based on an arrearage in child-support payments and for alleged damage to Haylea's hair. The chancellor found that Tanisha lacked standing to bring the claims raised in her counterclaim and therefore dismissed her counterclaim without prejudice. The chancellor further found Tanisha in contempt for denying Marquis his visitation with Haylea, and the chancellor ordered Tanisha to pay attorney's fees to Marquis.

¶4. On May 16, 2011, Tanisha filed a civil lawsuit in Lafayette County Circuit Court on Haylea's behalf for damages against Marquis and his friend LaShae Walker. The lawsuit alleged that Haylea had suffered personal injuries due to hair styling performed by Walker. Tanisha also filed a motion for a temporary restraining order and a preliminary injunction to prevent Walker from further styling or treating Haylea's hair. Marquis and Walker filed a joint motion to dismiss all claims and for summary judgment, or in the alternative, to transfer the case to chancery court. The circuit court judge subsequently transferred the case to chancery court based on lack of subject-matter jurisdiction, and the case was consolidated with a complaint filed by Marquis in chancery court on June 22, 2011, for modification of custody, for citation of contempt, and for other relief.

¶5. In his June 22, 2011 petition, Marquis asserted that since the divorce decree substantial and material changes in circumstances adverse to Haylea's health and welfare had occurred to warrant a modification of the custody arrangement. Specifically,

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Marquis alleged that Tanisha had engaged in ongoing behavior and actions to alienate Haylea from him and to frustrate his visitation attempts with Haylea. As a result, Marquis requested that the chancellor: (1) award him sole legal custody and primary physical custody of Haylea, with reasonable visitation rights for Tanisha; (2) find Tanisha in contempt for her failure to abide by the terms of the divorce decree; (3) order Tanisha to pay the costs of reasonable attorney's fees, service-of-process fees, and other court costs; (4) order Tanisha to cooperate with Marquis in obtaining counseling for Haylea; and (5) appoint a guardian ad litem (GAL) for Haylea and require Tanisha to share an equal part of the cost for the GAL's representation.

¶6. The chancellor entered an order on July 8, 2011, stating that the appointment of a GAL was not appropriate at that time. However, he reserved the right to revisit the issue should the need arise. The chancellor also noted that the parties had already agreed to counseling for Haylea with Dr. Heather Hartwell, who would be actively engaged in assessing Haylea's emotional well-being and recommending ways that the parties could alleviate outside stressors on Haylea's life.

¶7. On October 11, 2011, the chancellor entered another order to address issues arising during a hearing held on September 28, 2011. With regard to Tanisha's lawsuit originally filed in circuit court, the chancellor noted that he had specifically directed Tanisha at the last hearing in the case in March 2011 to bring any future issues related to Haylea's hair back to the chancery court. Because Tanisha failed to come before the chancery court to get prior authorization before filing the lawsuit in circuit court, the chancellor found the lawsuit void ab initio and dismissed the claims without prejudice. The chancellor also provided Tanisha with a thirty-day window to file a petition in chancery court to explain her justification for filing a personal-injury lawsuit on Haylea's behalf.[2] As to Marquis's request for attorney's fees and expenses related to the circuit court lawsuit, the chancellor found the filing of the lawsuit in circuit court improper and awarded Marquis the full amount of his attorney's fees and expenses incurred in defending the lawsuit.

¶8. The chancellor further found that " material changes in circumstances adverse to the best interest of the minor child ha[d] occurred in the home of the primary custodial parent" since the entry of the divorce decree. Regarding the stability of the custodial home, the chancellor observed that Tanisha was currently six months pregnant and unmarried, though she was engaged to be married. The chancellor also stated that the parties had previously agreed on certain extended visitation periods for Marquis but that Tanisha had " unilaterally reduced and virtually eliminated" them. The chancellor further found that Tanisha had interfered with

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Marquis's relationship with Haylea and that Dr. Hartwell's testimony revealed that the lack of contact with Marquis, as well as Tanisha's hostile attitude toward him, had adversely affected Haylea. The chancellor reserved his ruling on the issue of modification of physical custody and ordered the parties to continue counseling with Dr. Hartwell. The chancellor also increased Marquis's visitation with Haylea.

¶9. Following a hearing on December 6, 2011, the chancellor entered another order on February 6, 2012, in which he: (1) addressed a petition for contempt filed by Marquis for Tanisha's failure to pay attorney's fees awarded at the September 28, 2011 hearing; and (2) reviewed the temporary custody and visitation arrangement established at the earlier hearing. The chancellor found Tanisha in contempt for failing to pay attorney's fees to Marquis and ordered her to pay an additional $500 in attorney's fees for Marquis's expenses incurred in filing the petition for contempt.

¶10. During the hearing the chancellor heard testimony from the parties, Haylea's third-grade teacher, Katie Pearson, and Haylea's principal, Latonya Robinson. He also reviewed an interim report submitted by Dr. Hartwell. Tanisha claimed that Haylea was having difficulty adjusting to the additional visitation with Marquis. She further alleged that the problems were so severe that she felt the need to schedule additional counseling for Haylea with the elementary-school counselor. Tanisha arranged for this additional counseling without notifying Marquis.

¶11. Despite Tanisha's allegations, the chancellor found that the testimony provided by Pearson and Robinson failed to corroborate her claims. Pearson testified that Haylea performed well in school and that her conduct was that of a typical third-grade student. Pearson also testified that she and Marquis communicated via email about Haylea and that he often ate lunch with Haylea and picked her up from school. According to Pearson, Haylea had not exhibited any signs of stress or anxiety. The chancellor also found that Robinson's testimony failed to ...


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