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Roberts v. Lopez

Court of Appeals of Mississippi

September 23, 2014

DAVID A. ROBERTS, APPELLANT
v.
LIZA DANIELLA LOPEZ, APPELLEE

Page 394

[Copyrighted Material Omitted]

Page 395

COURT FROM WHICH APPEALED: JACKSON COUNTY CHANCERY COURT. DATE OF JUDGMENT: 05/06/2013. TRIAL JUDGE: HON. HOLLIS MCGEHEE. TRIAL COURT DISPOSITION: GRANTED JOINT CUSTODY.

FOR APPELLANT: DAVID A. ROBERTS (Pro se).

FOR APPELLEE: LIZA DANIELLA LOPEZ (Pro se).

BEFORE IRVING, P.J., MAXWELL AND JAMES, JJ. LEE, C.J., GRIFFIS, P.J., ISHEE, ROBERTS, CARLTON, MAXWELL AND FAIR, JJ., CONCUR. BARNES AND JAMES, JJ., CONCUR IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION.

OPINION

Page 396

NATURE OF THE CASE: CIVIL - CUSTODY

IRVING, P.J.

¶1. David A. Roberts, having had physical custody of his biological son, C.M.R., appeals a judgment of the Jackson County Chancery Court, which modified the custody order from David's having sole custody to his having joint physical custody with Liza Daniella Lopez, the child's biological mother. On appeal, David alleges that the chancery court committed eleven errors, some of which overlap. Therefore, for the sake of brevity and clarity, we have recast his issues as follows: (1) the chancery court erred in not dismissing Liza's amended complaint; (2) the chancery court erred in finding that David committed fraud that justified setting aside the previous custody order(s); (3) David was denied procedural due process as a result of certain rulings of the court; (4) the chancery court erred in failing to make an on-the-record Albright [1] analysis; (5) the chancery court erred in its final custody order; and (6) the chancery court erred in assessing guardian ad litem fees to David. Finding that the chancery court did not err, we affirm.

FACTS

¶2. Liza first met David in April 2008, when she went to see him about representing her in a divorce proceeding.[2] David explained to Liza that he was more interested in having a relationship with her than representing her in the divorce proceeding. Liza agreed and employed different counsel to represent her. Eventually, Liza moved in with David. C.M.R. was born on October 15, 2009, and David and Liza continued to live together after C.M.R.'s birth.

¶3. David and Liza had a contentious relationship during their time together. In December 2009, Liza became upset with David over his relationship with another woman and intentionally struck the woman's vehicle with her vehicle in the parking lot of a local restaurant where David and the other woman were dining. Soon after the incident, Liza moved out of the home. The vehicle incident led to a felony charge of aggravated assault against Liza. David represented Liza in this matter, and on January 13, 2010, Liza appeared in Pascagoula Municipal Court and entered a guilty plea to a reduced charge.

¶4. On February 4, 2010, David filed an emergency petition for a temporary restraining order (TRO) and a complaint for permanent custody, citing the car incident and Liza's " erratic behavior." The chancery court issued the TRO granting temporary custody of C.M.R. to David and scheduled a hearing for a permanent restraining order. However, according to Liza, before the permanency hearing could be held, David approached her and offered to give her custody of C.M.R. if she would agree to move back in with him. He advised that he would draft the necessary paperwork to effectuate the change in custody. She agreed and moved back in with David. As promised, David drafted an agreed order setting aside the restraining order and awarding primary physical custody of C.M.R. to Liza. This agreed order was filed February 12, 2010, just eight days after the TRO had been placed in effect.

¶5. In May 2010, Liza moved out of the home again. She explained that she could no longer take the constant abuse from David. Then on June 10, 2010, the parties filed a joint complaint for modification requesting that sole custody of C.M.R. be given to David, with reasonable visitation

Page 397

to Liza. The complaint was sworn to by both Liza and David and stated, without explaining, that a material change in circumstances had occurred that was detrimental to the best interests of C.M.R. However, according to Liza, she did not sign the complaint before the notary, David's sister, who allegedly attested her signature. On the other hand, David testified that Liza signed the complaint before the notary and agreed to the modification of her own free will. The joint complaint was accompanied by an agreed order changing custody from Liza to David, with reasonable visitation to Liza. The chancery court entered the agreed order as drafted by David.

¶6. On August 24, 2011, Liza, alleging fraud committed by David, filed an initial complaint to set aside all orders previously entered in this cause. On October 7, 2011, David was served with the initial complaint, a Mississippi Rule of Civil Procedure 4 summons, and a Mississippi Rule of Civil Procedure 81 summons, which commanded him to appear and defend on November 15, 2011. On October 26, 2011, David filed an answer and affirmative defenses in which he denied the gravamen of Liza's complaint and asserted that her complaint should be dismissed because it was untimely, as the order that she was seeking to set aside was more than six months old. On November 2, 2011, David filed a motion to dismiss, alleging that Mississippi Rule of Civil Procedure 60 was the proper mechanism for obtaining relief from the June 10, 2010 judgment and that Liza's complaint was untimely. On November 15, 2011, after all parties appeared in court, the chancellor recused himself; and the Mississippi Supreme Court appointed Judge Hollis McGehee as a special judge to hear the matter. On February 3, 2012, Liza filed a motion to amend, which was granted. She filed her amended complaint on February 10, 2012, which, in addition to seeking to set aside previous court orders, sought, as an alternative, custody modification. A Rule 81 summons on the amended complaint was issued on July 3, 2012, and served on David on July 5, 2012. The summons ordered David to appear on August 24, 2012.

¶7. Hearings were held on Liza's amended complaint on August 24, 2012, and September 12, 2012. David appeared and participated in the these hearings. On September 20, 2012, the chancery court entered a judgment that granted Liza's amended complaint and " all prior orders in this cause touching upon the care, custody, and control of C.M.R. are hereby set aside and held for naught, ab initio." The chancery court appointed a guardian ad litem (GAL), and awarded temporary joint custody to the parties, with specific conditions. On May 9, 2013, after making some modifications to the temporary custody order, the chancery court entered a final judgment awarding the parties joint custody of CM.R. David appeals.

DISCUSSION OF THE ISSUES

¶8. At the outset, we note that Liza did not file a brief in response to David's appeal. In this instance, ...


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