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Pellegrin v. Pellegrin

Court of Appeals of Mississippi

August 1, 2017

AMANDA PELLEGRIN APPELLANT
v.
KIRK JOHN PELLEGRIN APPELLEE

          DATE OF JUDGMENT: 05/22/2015

         JACKSON COUNTY CHANCERY COURT HON. D. NEIL HARRIS SR. TRIAL JUDGE.

          ATTORNEY FOR APPELLANT: ELLIOT G. MESTAYER

          ATTORNEY FOR APPELLEE: CALVIN D. TAYLOR

          BEFORE IRVING, P.J., FAIR AND WILSON, JJ.

          IRVING, P.J.

         ¶1. The Chancery Court of Jackson County granted Kirk Pellegrin and Amanda Pellegrin a divorce and ultimately awarded physical custody of the parties' minor children to Kirk. Amanda appeals, arguing that the chancery court erred in two respects: in its decision awarding physical custody of the parties' minor children to Kirk and in its failure to hold Kirk in civil contempt for his failure to comply with certain interim temporary orders of the court.

         ¶2. Finding error, we reverse and remand.

         FACTS AND PROCEDURAL HISTORY

         ¶3. Kirk and Amanda were married on September 11, 2004. They had two children, Kayden and Kenadie, before they separated in September 2009. The following month, Kirk filed a complaint for divorce, alleging that he was entitled to a divorce from Amanda on the statutory ground of habitual cruel and inhuman treatment or, alternatively, on the ground of irreconcilable differences.

         ¶4. Approximately two months after Kirk filed for divorce, the chancery court entered a temporary order granting the parties joint custody, "with physical custody being vested [in] Amanda." This temporary order was set to be reviewed in January 2010. However, it apparently was not reviewed until March 24, 2010, because on that date, the chancellor entered an amended temporary order awarding joint custody to Kirk and Amanda, "with physical custody being vested with [Amanda]." On April 8, 2010, the chancellor entered a third temporary order, again granting joint custody of the children to Kirk and Amanda, with "physical custody being vested with Amanda." On May 27, 2010, the chancellor again entered a temporary order addressing custody, but this time the order was entitled "Agreed Temporary Visitation Order" and addressed custody, as well as visitation, although custody remained unchanged. On July 6, 2010, the chancellor yet again entered an order awarding joint custody of the minor children to Kirk and Amanda, "with physical custody being vested with [Amanda]."

         ¶5. On January 27, 2011, Kirk filed an amended complaint for an emergency hearing in which he alleged that Amanda had become pregnant with another man's child. He also alleged that Amanda had been admitted to the hospital because of her multiple sclerosis and, instead of contacting him, had "allowed her brother to watch the children." Kirk sought an order relieving him of the responsibility of paying Amanda's medical expenses associated with, and stemming from, the soon-to-be birth of Amanda's child that was fathered by another man. He also sought a change of custody of the minor children based on Amanda's alleged incapacity to care for the children because of her illness with multiple sclerosis.

         ¶6. On February 10, 2011, Kirk filed an amended complaint for divorce in which he sought, among other things, custody of the minor children and a divorce on the grounds of habitual cruel and inhuman treatment and adultery or, in the alternative, on the ground of irreconcilable differences. On December 20, 2011, Amanda filed a counterclaim for divorce on the ground of habitual cruel and inhuman treatment or, in the alternative, on the ground of irreconcilable differences. She requested that she be granted custody of the parties' minor children. On January 31, 2012, Kirk filed a complaint for modification in which he again asked for custody of the parties' minor children. He alleged that Amanda continued to have multiple health problems and could not take care of herself or the minor children. Amanda responded that she lived with her mother, that her mother assisted her as needed, and that the children did not "have to be moved from place to place, further disrupting their lives."

         ¶7. On February 9, 2012, Amanda filed a motion for contempt, alleging that Kirk had not paid certain medical expenses of the minor children as had been ordered in several of the interim temporary orders. On the following day, the chancellor granted Kirk a divorce on the ground of adultery, based on the fact that Amanda had given birth to a child fathered by another man. However, the court did not decide the issue of custody of the minor children. More than a year later, Kirk filed a motion for modification, contempt, and change of custody. In his complaint, Kirk alleged that a material change in circumstances had occurred in that Amanda was not stable, had willfully violated all court orders and had continued to alienate the children from him.

         ¶8. On November 22, 2013, pursuant to motion filed by Kirk, the court appointed a guardian ad litem to, among other things, "investigate, make recommendations to the Court and enter reports, and act in all respects to protect the best interests of the minor children."[1] On January 22, 2014, the guardian ad litem made her initial report in which she made the following recommendation:

As the guardian ad litem, it is apparent to me through my investigation and research that both parents would provide a loving, nurturing home to the children. Both parents expressed a willingness and desire to have primary custody of the children. The recommendation of the guardian ad litem is that the best interest of the children would be best served by awarding joint physical and legal custody to Kirk Pellegrin and Amanda Pellegrin.

         On August 14, 2014, in an updated report, the guardian ad litem stated:

This was a particularly difficult case to decide as both parents have expressed a strong willingness and desire to have custody of the children. The recommendation of the guardian ad litem is the best interests of the children would be best served by awarding joint legal custody, physical custody to Kirk Pellegrin, and extensive visitation to Amanda Pellegrin.

         ¶9. On January 5, 2015, without elaborating or otherwise explaining his decision, the chancellor entered an order, finding "that the parties are hereby vested with joint legal custody of the minor children and Kirk John Pellegrin is hereby vested [with] physical custody of the minor children." Amanda timely filed a motion for reconsideration. In her motion, she asserted:

The movant would show that the decision was against the weight of the evidence on the issue of custody since the movant has had continuity of care, available, available full time, her health has improved, and is an active participant in the care of the minors. Further, the guardian ad litem did not complete her investigation as to why the children are so afraid of their father.

         In the prayer of her motion, Amanda requested that "findings of fact and conclusions of law be prepared concerning custody" and an investigation be made into why the children feared their father.

         ¶10. On March 3, 2015, the chancellor entered a order modifying the January 5, 2015 judgment pursuant to Amanda's motion for reconsideration or relief from judgment. In paragraph IV of the order, the chancellor stated, "The [c]ourt agreed that it will provide a [f]indings of [f]act and [c]onclusions of [l]aw[, ] preserving his ruling on the issue of modifying custody by applying the custody provisions." However, the record does not reflect that the chancellor ever entered findings of fact and conclusions of law.

         ¶11. As appropriate, additional facts will be related during the discussion.

         DISCUSSION

         I.Child ...


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