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Shows v. Cross

Court of Appeals of Mississippi

February 27, 2018


          DATE OF JUDGMENT: 02/24/2016





          WILSON, J.

         ¶1. Greg Shows and Hope Shows Cross divorced in February 2007. The divorce decree awarded Hope physical custody of the couple's only child, S.S.[1] In December 2011, Greg filed a petition to modify custody. A hearing on the petition was held over the course of four days in 2012, 2015, and 2016. After Greg presented his case, the chancellor dismissed his petition to modify custody, finding that he had failed to meet his burden of proving a material change in circumstances that adversely affected S.S. On appeal, Greg challenges that ruling as well as the chancellor's rulings on issues of child support, contempt, and the apportionment of the fees of the guardian ad litem (GAL). For the reasons discussed below, we find no error and affirm.


         ¶2. Greg and Hope married in July 2005; their son, S.S., was born in March 2006; they separated in May 2006; and the chancery court entered a final judgment of divorce based on irreconcilable differences in February 2007.

         ¶3. The divorce decree adopted and incorporated the parties' custody and property settlement agreement. The parties agreed to joint legal custody of S.S. with Hope to have "primary physical custody."[2] Greg was granted visitation, including alternating weekends, four weeks in the summer, spring break, and certain holidays. The agreement also required Greg to pay child support as follows:

1. The parties agree that [Greg] will pay, as and for support of [S.S], the monthly amount of $200.00 . . . .
2. Additionally, as and for further monthly child support, [Greg] shall pay one-half of day-care for [S.S.] per month or $135.00, whichever is greater. When [Greg] pays the current monthly support amount of $200.00 he shall also pay his portion of the day-care expenses, as stated herein, for the preceding month, so that when the $200.00 for February [2007] is paid by [Greg], his portion of the January [2007] day-care expenses shall be added and paid at that time, and likewise for every month.

         ¶4. In December 2011, Greg filed a petition for modification of custody seeking "primary physical custody" of S.S. Greg alleged that Hope had remarried and had "allow[ed] both her new husband, as well as [her] children by a previous marriage, to emotionally and verbally abuse [S.S.]" Greg also alleged that Hope "herself had verbally abused [S.S.]" Greg's petition requested appointment of a GAL for S.S.

         ¶5. Hope answered Greg's petition and also filed a petition for contempt and a counter- complaint to modify or clarify the visitation provisions of the parties' agreement. Hope alleged that Greg had violated the agreement's child support and visitation provisions. Hope denied that a GAL was necessary, but the chancellor subsequently appointed attorney Jonathan Martin as GAL for S.S.

         ¶6. The hearing on Greg's petition and Hope's petition and counter-complaint was held on October 30, 2012; July 16, 2015; and February 17 and 24, 2016. Chancellor Talmadge Littlejohn presided over the first two days of the hearing; however, Chancellor Littlejohn passed away in October 2015. The case was then reassigned to Chancellor T.K. Moffett, who presided over the final two days of the hearing.

         ¶7. On the first day of the hearing, Greg testified that he was living in Senatobia with his new wife, Kip, and a stepdaughter, who was then seven years old. Greg was unemployed at the time, as he had recently closed a used car lot and was still collecting on some car notes. Kip was employed as a sales manager for a company that sells shipping containers.

         ¶8. Greg alleged that Hope had refused to allow him to have scheduled weekend visitation with S.S. three times between 2008 and 2010. He also alleged that seven to ten times he had to ask the sheriff's department to accompany him to pick up S.S. for visitation. Greg claimed that he needed the sheriff's department's help because Hope had threatened that her new husband, Kenny, would "kick [his] A." Greg also testified that Hope interfered with his phone calls with S.S. by requiring S.S. to talk to him on speaker and then eaves-dropping on their conversations. Greg testified that he could hear cursing and threats in the background when he talked to S.S. on the phone. Greg claimed that S.S. was "withdrawn" when Greg picked him up at Hope's house, that his demeanor improved while he was with Greg, and that S.S. became upset and cried when he had to go back to Hope's house.

         ¶9. Greg testified that in 2011 he became concerned about S.S.'s "withdrawn" and "defiant" behavior. Without consulting Hope, Greg took S.S. to a licensed professional counselor, Tajuana Williams, in September 2011. Williams testified that when she began counseling S.S., who was then five years old, she was concerned that he exhibited symptoms of depression, that he reported hearing a lot of profanity at his mother's house, and that he described Hope as "mean." S.S. also told Williams that his stepfather, Kenny, "had wiped poop on his face"; however, after questioning S.S. further, Williams could not determine what he meant or what exactly happened. Hope told Williams that S.S. simply had misunderstood a bad "joke." Williams initially "had concerns of neglect, verbal abuse, and possible physical abuse." Prior to one session, Greg told Williams that S.S. had slapped his stepsister at Greg's house, and when Williams discussed the incident with S.S., he told her that step-siblings at Hope's house had slapped him. This concerned Williams, but she testified that the incidents "could also be just children playing."

         ¶10. On cross-examination, Williams testified that she ultimately found no evidence of physical abuse, even after follow-up medical examinations by physicians. In addition, after Williams reported her initial concerns to the Department of Human Services (DHS), DHS investigated and found no evidence of physical abuse. Williams opined that some of the incidents that S.S. described to her constituted "emotional maltreatment, " but she was unwilling to use the term "emotional abuse." Williams also acknowledged that she had never seen S.S. interact with Hope or Kenny, so she had only seen "one side of the picture." Williams also testified that S.S.'s initial complaints that Hope was "mean" were non-specific, and in later sessions S.S. told her that Hope was "being nice."

         ¶11. Williams stopped counseling S.S. in May 2012 because he was "happy" and "healthy" and no longer exhibited symptoms of anxiety or depression. Williams confirmed that S.S. was doing well in school and had not had any disciplinary problems. The hearing recessed at the conclusion of Williams's testimony.

         ¶12. As noted above, the hearing recessed for about thirty-two months between the first and second days of testimony. In the interim, lawyers on both sides withdrew, new lawyers entered appearances, and there were a number of continuances, most of which Greg requested.

         ¶13. In addition, on July 31, 2013, Greg filed an emergency motion for temporary custody in which he alleged: (a) that S.S. was undergoing counseling and that his counselor had advised it was not in his best interest to be returned to Hope's custody and (b) that S.S. had been "diagnosed . . . with ulcers associated with the fear of returning to [Hope's] home and other related matters." Hope denied Greg's allegations and filed a petition for contempt based on Greg's failure to return S.S. to her. Based on the GAL's recommendation, the chancellor found that returning S.S. to Hope's custody pending a final hearing on the merits would not result in any irreparable harm to S.S. The chancellor therefore denied Greg's emergency motion for custody.

         ¶14. Before the hearing resumed, Greg also filed a motion to allow S.S. to testify and for an "in camera Jethrow examination" of S.S.[3] The hearing finally resumed on July 16, 2015, with Greg still on direct examination.[4]

         ¶15. Greg testified that in June 2013 his family and Hope's family both attended a baseball game of S.S.'s in Amory. Greg claimed that after the game Hope approached him and Kip and began "mouthing and saying stuff to us." According to Greg, Hope and her sister then "attacked" him and his sister. Greg testified that S.S. witnessed part of the altercation and was "very shook up and ...

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