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Burge v. Burge

Court of Appeals of Mississippi

August 1, 2017

KELLY R. BURGE APPELLANT
v.
CRAIG A. BURGE AND CHADWICK A. SHARFF APPELLEES

          DATE OF JUDGMENT: 09/16/2015

         LAMAR COUNTY CHANCERY COURT, HON. M. RONALD DOLEAC TRIAL JUDGE

          ATTORNEY FOR APPELLANT: PHILLIP LLOYD LONDEREE

          ATTORNEYS FOR APPELLEES: ALLEN FLOWERS EARL LINDSAY CARTER JR.

          BEFORE LEE, C.J., BARNES AND WESTBROOKS, JJ.

          BARNES, J.

         ¶1. This case stems from a divorce action filed by Craig Burge against Kelly Burge in the Lamar County Chancery Court. Craig and Kelly had two children together, and Kelly also had physical custody of her two children born of a prior marriage to Chadwick Sharff (Chad). In Craig's complaint for divorce, among other matters, he sought physical and legal custody of all four children, claiming he acts in loco parentis as to the two Sharff children. Subsequently, Chad filed a petition to join Craig's request for custody of all four children so as not to separate the children or, in the alternative, grant Chad custody of his children. In the Sharff divorce case, assigned to a different chancellor, Chad moved to transfer and consolidate his case with the Burges' case. Craig also sought to consolidate the cases. In turn, Kelly filed a motion for summary judgment, alleging that the chancery court did not have jurisdiction over the Sharff children. Craig's and Chad's motions to consolidate were granted, and Kelly's motion for summary judgment was denied.

         ¶2. The seven-day trial spanned over six months. At the conclusion of Craig's and Chad's case-in-chief, Kelly made an ore tenus motion for an involuntary dismissal of Chad's petition for modification of child custody and support, which was granted. In a ninety-page opinion, the chancellor granted Craig a divorce on the grounds of uncondoned adultery, and awarded him legal and physical custody of his two minor children, as well as of the two Sharff children. The chancellor found Kelly's natural-parent presumption had been rebutted with regard to the Sharff children because of her immoral conduct and mental unfitness. Additionally, the chancellor found Chad's natural-parent presumption rebutted because he had abandoned his children, and was also unfit for custody.

         ¶3. Kelly appeals the judgment of the chancery court, raising two issues related to the Sharff child-custody ruling: (1) whether her natural-parent presumption was overcome, and (2) whether modification of the Sharff action was proper when the claim had been involuntarily dismissed. Finding no error, we affirm.

         PROCEDURAL HISTORY

         ¶4. Craig and Kelly were married on June 2, 2004, after a three-week courtship. She had been divorced from Chad for approximately four months. Craig and Kelly separated in February 2013 in Purvis, Mississippi. Two children were born of the marriage: Paula, a female child born in 2005, and Peter, a male child born in 2008.[1] Prior to her marriage to Craig, Kelly was married to Chad from 1998 until February 2004. Two children were born of their marriage: Phillip, a male child born in 1998, and Perry, a male child born in 2001. In the Sharff divorce judgment, Kelly was awarded physical custody of Phillip and Perry Sharff, with Chad to pay child support.

         ¶5. In March 2013, Craig filed for divorce and requested custody of all four children, claiming to act in loco parentis for the Sharff children. Craig named Chad as a nominal party related to custody of the Sharff children. Craig alleged that Chad was not active in his children's lives, and Chad's whereabouts were unknown. All of the children lived in the Burge marital home. In April 2013, the chancellor entered a temporary order whereby both parties agreed to share joint legal custody, but Craig would have temporary physical custody of all four children. Kelly would have visitation every other weekend, and Craig had temporary use and possession of the marital home. Both parties were enjoined from exposing the children to romantic interests.

         ¶6. In August 2013, Chad answered the Burge divorce petition, even though he had not been served with process in the matter and filed a petition to join the Burge case. He denied that Craig stood in loco parentis to his children. However, Chad joined Craig's request to award custody of all four children to Craig so as not to separate the children. In the alternative, he requested modification of child custody to him. Also in August 2013, Craig filed a petition for contempt, claiming, among other matters, that Kelly violated the temporary order by exposing the children to her paramour, Burke Williamson, during visitation. A guardian ad litem (GAL) was appointed for all four children. In September 2013, the chancery court issued a second temporary order, directing the children not be exposed to Burke, and Chad's child-support payments be paid to Craig through the trust account of Kelly's attorney. In December 2013, Craig filed an emergency petition claiming Kelly had ignored these directives.

         ¶7. In June 2014 in the Sharff case, Chad filed a petition for modification of child custody to him, citing Kelly's divorce proceedings with Craig as a material change in circumstance. Chad also claimed that he continued to pay child support for his two children, in contradiction to Kelly's assertions to Craig. Chad also filed a motion to transfer and consolidate his case with the Burge case. Likewise, Craig requested consolidation of his and Chad's case. Kelly also filed a motion for summary judgment claiming the chancery court lacked jurisdiction over the Sharff children.

         ¶8. In October 2014, an order consolidating both cases was entered, and trial began in December 2014, and continued for several dates until July 2015. In September 2015, the chancery court entered its opinion and final judgment. The chancellor granted Craig a divorce from Kelly on the grounds of uncondoned adultery. Kelly's natural-parent presumption as to the two Sharff children was rebutted, as the chancery court found her conduct "so immoral as to be detrimental to the children, " and that she was "unfit, mentally or otherwise, to have custody." Chad's natural-parent presumption was also rebutted, with the court finding he abandoned and deserted his two (Sharff) children, and that he too was mentally unfit to have custody. Under an Albright[2] analysis, Craig was granted legal and physical custody of all four children. Kelly was ordered to pay Craig child support, and Chad was ordered to pay $300 per month for his two children. Kelly was also found in contempt of court for her repeated failure to prevent the children's exposure to Burke, as ordered, and failure to remit to Craig child support and her share of medical expenses for the children, which amounted to $4, 558.11. The chancellor stated the Sharff case was "hereby modified as to Chad and Kelly's custody, visitation, and child support . . . and all provisions not modified remain in force and in effect." Kelly timely appealed.

         STATEMENT OF FACTS/TRIAL TESTIMONY

         ¶9. Over the course of the seven-day trial, seven volumes of trial testimony were taken from numerous witnesses, and sixty-three exhibits were entered into evidence.[3] Since this case is primarily driven by the facts, we find it necessary to relate them in some detail.

         ¶10. At the time of Craig and Kelly's marriage, Phillip Sharff was five years old, and Perry Sharff was two years old. Craig put the two boys on his medical insurance, and "took over as their dad" since Chad was mostly absent. The Sharff children knew Craig as "Dad, " although they did enjoy seeing Chad. Both boys wanted Craig's last name of "Burge" on the back of their baseball jerseys. Craig testified he was there for all four children and his parenting skills are "off the chart." He maintained that he wanted custody of all four children.[4]

         ¶11. Craig works for his family as a log loader. The marital home was a house built before the marriage by Craig on his family's property in rural Lamar County. During the marriage, Kelly stayed at home, keeping the house and caring for the children. She homeschooled them and, according to Craig, initially did a good job. Kelly felt it was best because the children allegedly suffered from dyslexia and had attention-deficit issues. However, Craig was not in favor of homeschooling. In late 2012, Kelly decided to sell Visalus diet shakes part-time. Craig would keep the children while Kelly attended the sales meetings. Toward the end of the marriage, Craig testified that the children were often left with the oldest child, Phillip, or Craig's family members when Kelly left the house, which became more frequent. When the couple received a $25, 000 Christmas gift, Kelly decided to spend $8, 500 on breast-augmentation surgery less than a year before they separated, claiming a model-like figure would help her Visalus sales.

         ¶12. Craig and Kelly separated in February 2013, when Craig came home from church and Kelly said she was sorry he was "still trying" with regard to their marriage. Since September 2012, Kelly had been communicating with her soon-to-be paramour Burke in Jackson. Burke was an old classmate of Kelly whom she had contacted when she was selling Visalus shakes. He was a former soldier with post-traumatic stress disorder (PTSD) and a drinking problem, and Kelly said she was trying to help him "find the Lord." In December 2012, an incident occurred where Kelly frantically insisted Craig drive her to Jackson in the middle of the night to check on Burke because he was allegedly suicidal. Upon arrival at Burke's apartment, they found him passed out from alcohol consumption but unharmed. Craig instructed Kelly to have no more communication with Burke, as it was not good for their marriage. Kelly agreed. Burke later texted Craig that he had "no designs on [his] wife. I don't know why she is so taken with me" and further, that he was "not sleeping with [Kelly] and wouldn't if [he] could" because he is a "good soldier."

         ¶13. In January 2013, another incident occurred. Kelly told Craig she was going to Grenada to see her aunt. Upon Kelly's return, Craig saw a photograph posted on Facebook where Kelly was sitting on a bed topless with her back to the camera and an American flag draped around her hips. Kelly denied the photograph was inappropriate, explaining that the photograph was for a wounded-warrior organization that helped soldiers with PTSD. She defended it as "Christian."

         ¶14. In March 2013, after the couple's separation, Kelly checked herself in to Pine Grove, a behavior health and addiction treatment center in Hattiesburg, where her mother worked as a nurse. Kelly told Pine Grove that she was "torn between two men, " and had been depressed and suicidal for fourteen years. She was diagnosed with a broad range of maladies including depression, anxiety, insomnia, and "magical thinking." Craig stated that before her admission, Kelly was having "intrusive thoughts" and was suicidal; Kelly denied this accusation. During her five-day stay, Burke sent Craig a text message letting him know that Kelly wanted Burke to call her at Pine Grove, but stated: "You don't have to worry about me anymore . . . but the next guy she finds won't be as moral as I am." Burke then told Craig that the weekend Kelly said she went to her aunt's house in Grenada, she had actually come to Jackson to have lunch with Burke. They had drinks and ended up at Burke's apartment in bed. Burke said Kelly wanted to have sex, but Burke refused. Burke texted Craig: "[W]ith the ease [Kelly] went from trying to sell me shakes to wanting to be with me I doubt I'm her first." Burke then offered to send Craig several raunchy "sex texts" between Kelly and him. Craig assented, and Burke sent a series of sexually explicit text messages to Craig. Kelly later testified that Burke made up the messages. The chancellor later found these texts "troubling."

         ¶15. The same morning the sex texts were sent, Pine Grove staff requested Craig come for a family meeting with Kelly and "expect the worst, " because the marriage was broken and Kelly was leaving. However, Kelly maintained that the marriage was over long before she went to Pine Grove. When confronted by Craig, Kelly admitted the sexual texts with Burke were valid, and that she went to Burke's apartment instead of her aunt's house. Kelly also admitted to Craig that she had committed adultery with Burke.[5] In response, Craig told Kelly not to return to the marital house. Kelly claimed she was "kicked out" of the house.

         ¶16. Upon discharge from Pine Grove, Kelly supposedly stayed with her parents for a few days and then moved into Burke's apartment in Ridgeland. Again, the exact dates vary. She claimed Burke "stayed elsewhere." Kelly did not comply with the Pine Grove discharge recommendations of therapy, medications, and ninety days of Alcoholics Anonymous. At some point Kelly rented an apartment near Burke's in the same complex. He paid for her rent, utilities, food, and all of her expenses because she was "homeless and destitute." Kelly described Burke as her "soul mate, rock, and best friend." She testified that she is happy with him, and he would probably be her boyfriend once the divorce is concluded.

         ¶17. Craig testified that he takes care of the children's needs, even though he works long hours. He receives help from his nearby family members as needed for child care and tutoring. Craig lives in the marital four-bedroom home near Purvis, while Kelly now lives in a three-bedroom apartment in Pearl. Kelly's parents live in Hattiesburg, and her grandparents live in Purvis, but she testified she plans on staying in the Jackson area. At the time of trial, Kelly had a new job at a day care making $12 an hour for a forty-hour work week. Kelly testified that she has no mental-health issues; her depression was cured by prayer.

         ¶18. During their marriage, Craig testified that Kelly received $23, 790 in child support from Chad that he did not know about. At a certain point, Kelly told both Craig and the Sharff children that she did not know whether Chad was "dead or alive, " and that she had received no child support from him. Later, Craig learned Chad had not missed a child-support payment since October 2007. Further, Chad stated Kelly had thwarted his visitation efforts. Under the court's second temporary order of September 19, 2013, Kelly was to pay Craig any child-support payments received by Chad, but admittedly did not. Craig stated she owed him $5, 474.46 for the amount paid by Chad since the temporary court ...


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