COURT FROM WHICH APPEALED: PONTOTOC COUNTY CHANCERY COURT. DATE OF JUDGMENT: 12/16/2013. TRIAL JUDGE: HON. JACQUELINE ESTES MASK. TRIAL COURT DISPOSITION: GRANTED DIVORCE AND DENIED APPELLANT CUSTODY OF AND VISITATION WITH THE MINOR CHILD.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
FOR APPELLANT: DANIEL KEITH TUCKER, ALLISON ANN WORLEY.
FOR APPELLEE: BRIAN LEE STARLING.
BEFORE IRVING, P.J., ROBERTS AND MAXWELL, JJ. LEE, C.J., GRIFFIS, P.J., BARNES, ISHEE, ROBERTS, MAXWELL AND FAIR, JJ., CONCUR. CARLTON, J., DISSENTS WITH SEPARATE WRITTEN OPINION. JAMES, J., NOT PARTICIPATING. CARLTON, J., DISSENTING.
NATURE OF THE CASE: CIVIL - DOMESTIC RELATIONS
[¶1] Gene Smiley appeals the custody decision rendered by the Pontotoc County Chancery Court, awarding custody of Alaina Bryant, Gene and Eunieca Smiley's former adopted daughter to Eunieca and denying him visitation rights. On appeal, Gene argues that the chancellor erred in finding that the doctrine of in loco parentis did not apply, and in finding that Gene did not rebut the presumption set forth in Mississippi Code Annotated section 93-5-24(9)(a)(i) (Rev. 2013).
[¶2] Finding error, we affirm in part, reverse in part, and remand for further proceedings.
[¶3] Gene and Eunieca were married on February 8, 1998. They had no natural children of their own. Over the course of their marriage, they became custodians of two minor children, Christopher Franks, born on September 23, 1998, and Alaina, born on June 30, 2004. Custody issues related to Christopher were adjudicated in the Juvenile Court of Memphis in Memphis, Tennessee, and are not at issue here. In an agreed order between the parties and Alaina's biological mother, Eunieca's cousin, the biological mother relinquished custody of Alaina to the parties when Alaina was approximately eight months old.
[¶4] Gene and Eunieca separated in February 2009. However, the couple filed a joint petition for the adoption of Alaina in 2010. After the couple separated, Christopher resided with Gene in Tennessee, and Alaina resided with Eunieca in Tishomingo, Mississippi. Eunieca eventually filed a complaint for divorce in November 2010, requesting custody of Alaina, and Eunieca asked that Gene be given supervised visitation. The adoption was granted to Gene and Eunieca on November 5, 2010; however, on a motion filed by the guardian ad litem (GAL), the adoption was set aside in January 2011. Eventually, Christopher was removed from Gene's custody because of a nonsexual physical-abuse incident against Christopher. After the removal, Christopher was placed with his biological mother. On June 26, 2012, Eunieca amended her complaint to include allegations that Gene had abused Christopher. On August 1, 2013, the parties agreed to divorce on the ground of irreconcilable differences and to reserve the issues of child custody and visitation for determination by the chancery court.
[¶5] After the separation, and prior to the divorce, Gene kept in contact with Alaina in person and over the telephone until November 2011, when Eunieca unilaterally stopped allowing contact between the two. Gene did not file any pleadings requesting temporary custody modifications, but he participated in the hearings throughout the two-year process--from the time of the filing of the complaint for divorce to the granting of the divorce. The chancery court heard testimony over a two-day period. The GAL participated in the examination of all the witnesses.
[¶6] At the hearing, Gene testified that he lived in Clinton, Mississippi, with his mother in a fifth-wheel trailer, was forty-one years old, and was currently unemployed. However, he explained that he was taking classes to become a chef, with
aspirations to work in the governor's mansion. He stated that he had several degrees in the culinary arts. He also was trying to get a certificate in butchering and hoped to get a certificate in beverage management. Gene further testified that although there is only one room in the trailer, it would be for Alaina and that he could get a house if he needed to.
[¶7] Gene stated that he received $1,600 a month in medical disability payments as a disabled veteran. He explained that he had pain in his back, knees, and fingers, but it did not interfere with his ability to take care of Alaina. He admitted to administering five belt licks to thirteen-year-old Christopher that left two stripes on Christopher's back. He also admitted that the spanking " crossed the line" on that one occasion. He denied hurting Christopher any other time. However, he admitted that he had spanked Christopher with a belt about twenty times over the years, but said the spankings never left bruises or welts. Gene testified that he had never been abusive toward Alaina.
[¶8] According to Gene, the children started living with them when Gene was in the army and stationed in Fort Irwin, California. Gene explained that when Alaina was about three years old, they moved to Tishomingo, after he was medically discharged from the army. Gene further testified that he was present during Alaina's birth, and when Alaina was small, he was the primary caretaker because Eunieca worked. He explained that he did not work or attend school for five years because of his disability. During this time, Eunieca worked at home, and Gene took care of the cooking and cleaning. When he was asked what care he provided for Alaina, he stated he was responsible for " waking her up, bathing her[,]. . . feeding her a little[,] . . . and just loving her."
[¶9] Gene also testified that when he, Eunieca, Christopher, and Alaina were living together, they attended a church in Tishomingo. When he was asked about the allegations of inappropriate conduct asserted by various church members, Gene stated that the allegations were a conspiracy by the preacher's wife to retaliate against him. Gene believed the preacher's wife did not like him because he had told her that her granddaughter dressed inappropriately. Gene explained that the preacher had told him not to attend the church anymore, so he stopped going. Gene also stated that he believed Alaina would be in mental and emotional danger if left with Eunieca, and claimed that Eunieca was mean to the children.
[¶10] Gene testified that after he and Eunieca separated, he continued to talk to Alaina and had weekend visitation with her. Gene testified that the last time he saw Alaina was when she was in the hospital for a tonsillectomy, and he came to the hospital to be with her. When Eunieca stopped allowing Alaina to speak with him, Gene asked his attorney how he could see his " little girl." Gene affirmatively responded when he was asked if he was told by his attorney to let the " court system handle it." However, Gene insisted that Eunieca delayed the process when she hired a different lawyer. He further testified that he had sent gifts to Alaina, but for unknown reasons, the gifts were not accepted. Gene pointed out that despite the allegations of his misconduct, Eunieca had allowed him visitation while he was in Nashville, Tennessee, including ...