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Heisinger v. Riley

Court of Appeals of Mississippi

April 3, 2018

ADAM HEISINGER APPELLANT/ CROSS-APPELLEE
v.
PRISCILLA RILEY APPELLEE/ CROSS-APPELLANT

          DATE OF JUDGMENT: 11/14/2016

          LAUDERDALE COUNTY CHANCERY COURT HON. JERRY G. MASON TRIAL JUDGE.

          ATTORNEY FOR APPELLANT: J. DOUGLAS FORD

          ATTORNEYS FOR APPELLEE: LESLIE C. GATES WILLIAM STACY KELLUM III

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

          WILSON, J.

         ¶1. Adam Heisinger and Priscilla Riley have a daughter, B.H., who was born in Iowa in 2012. In September 2013, the Iowa District Court for Muscatine County awarded Priscilla and Adam joint legal custody of B.H., awarded Priscilla physical custody, granted Adam visitation, and ordered Adam to pay child support. Priscilla later moved to Mississippi, and in 2015 she petitioned the Lauderdale County Chancery Court to enroll the Iowa judgment, to suspend and/or modify Adam's visitation, and to increase Adam's child support. Adam answered and filed a counterclaim to enforce the Iowa judgment, to modify custody, and for contempt. A guardian ad litem was appointed based on Priscilla's allegations that Adam had abused or neglected B.H. during his visitation.

         ¶2. After a trial, the chancellor found that Adam had proven a material change in circumstances, but he denied Adam's petition to modify custody because he found that granting Adam physical custody would not be in B.H.'s best interest. The chancellor also denied Priscilla's petition to modify visitation and increase child support. Finally, the chancellor found Priscilla in contempt for violating prior court orders regarding Adam's visitation, and he awarded Adam attorney's fees.

         ¶3. On appeal, Adam argues that the chancellor erred by denying his petition to modify custody. Adam also argues that the chancellor's award of attorney's fees was insufficient, and he requests additional attorney's fees for the appeal. On cross-appeal, Priscilla argues that the chancellor erred by finding her in contempt, by denying her request to increase child support, and by finding that she "did not meet her burden of proof with respect to [her allegations of] neglect and abuse."[1]

         ¶4. In Adam's appeal, we affirm the chancellor's the award of attorney's fees, we award additional attorney's fees for the appeal, and we reverse and remand as to custody for further proceedings consistent with this opinion, including a new Albright[2] analysis. On cross-appeal, we affirm the chancellor's findings that Priscilla was in contempt and that she had not proven her allegations of neglect and abuse. However, we reverse and remand on the issue of child support because the chancellor should have applied Mississippi law, rather than Iowa law, to Priscilla's petition to increase the amount of support.

         FACTS AND PROCEDURAL HISTORY

         ¶5. Adam and Priscilla met while both were in the military and stationed in Virginia. Adam was an Air Force flight surgeon, and Priscilla was in the Navy. In 2011, Priscilla discovered she was pregnant and believed that Adam might be the father. Priscilla later moved to Iowa, and B.H. was born on January 17, 2012. Adam was deployed overseas at the time of B.H.'s birth. He returned to the United States in May 2012 and petitioned the Iowa District Court for Muscatine County for DNA testing and a determination of paternity and custody. Adam was deployed again after he filed the Iowa action, which resulted in some delay in completing the DNA testing. In May 2013, DNA testing confirmed that Adam was B.H.'s father, and he met B.H. for the first time the following month.

         ¶6. In September 2013, the Iowa court entered a decree establishing custody and visitation. The court awarded Adam and Priscilla joint legal custody, awarded physical custody to Priscilla, and awarded visitation to Adam. At the time of the decree, Adam's contact with B.H. had been limited, and he was still completing his medical residency in Ohio. Therefore, the Iowa court set a visitation schedule that would slowly increase B.H.'s time with Adam and accommodate his unpredictable work schedule. The court also ordered Adam to pay child support.

         ¶7. In November 2014, the Iowa court found Priscilla in contempt for denying Adam visitation with B.H. The court sentenced Priscilla to thirty days in jail, which the court suspended on the conditions that Priscilla pay Adam $1, 000 in attorney's fees and comply with a new visitation schedule. Adam was granted additional visitation to make up for the time he had lost because of Priscilla's actions. The court also modified Adam's visitation schedule to afford him two weeks of visitation during each eight-week period. The court's order required Adam to give Priscilla notice of the two weeks during which he would exercise visitation in advance of each eight-week period. The order provided that Priscilla could reject Adam's first choice for visitation dates; however, she was not permitted to reject Adam's second choice. The order also established a holiday visitation schedule.

         ¶8. In August 2015, B.H., who was then three-and-a-half years old, visited Adam at his home in Massillon, Ohio. Adam had to work during at least part of B.H.'s visit, and he left her in the care of a babysitter, Mandy. During B.H.'s visit, Adam noticed a small burn mark on her finger. A few days later, he noticed another mark on her forearm, and when he asked Mandy about the marks, she said that there was another one on B.H.'s buttock. When Adam asked B.H. about the marks, she told him that she had been burned at Priscilla's house on the stove or oven when Priscilla's husband, Shawn, was cooking. Adam decided to take B.H. to the emergency room in order to document the burns, and the doctor who saw B.H. said that the burns were in the later stages of healing. Hospital records reflect that B.H. also told hospital staff that she had been burned at Priscilla's house.

         ¶9. Priscilla and Shawn came to Ohio on August 29, 2015, to pick up B.H. Shawn retrieved B.H. from Adam while Priscilla waited in the car. Shawn testified that within moments of picking up B.H., he discovered the burn on her finger, then the marks on her arm and buttock. Priscilla and Shawn asked B.H. about the burns, and she told them that she had been burned at their home in Meridian. Priscilla decided to take B.H. to the local police department to file a report about the burns. B.H. also told the police that she had been burned in Mississippi. Priscilla also took B.H. to the hospital for treatment, and the records from this visit to the hospital are similar to those from her prior visit with Adam. When Priscilla returned home to Mississippi, she reported her suspicions of neglect or abuse to the Mississippi Department of Child Protective Services (MDCPS).

         ¶10. Several weeks later, Adam sent Priscilla a text message to request his next visitation with B.H. Priscilla rejected the request, supposedly because it would have required B.H. to travel on Halloween. Adam then re-noticed his visitation for a different date. In response, Priscilla told Adam that she would not allow him to have any additional visitation until MDCPS completed its investigation of her report. MDCPS, in coordination with Ohio's child protection agency, investigated Priscilla's report in July 2015 and found that any allegation of abuse was "unsubstantiated." Nonetheless, on September 25, Priscilla filed a petition in the Lauderdale County Chancery Court to enroll the Iowa judgment and to suspend and/or modify Adam's visitation with B.H. Priscilla later amended her petition to request an increase in child support. Priscilla denied all of Adam's subsequent requests for visitation with B.H.

         ¶11. Adam filed an answer and a counterclaim to enforce the Iowa judgment, to modify custody, and for contempt. On June 2, 2016, because Priscilla's petition alleged that Adam had abused or neglected B.H., the chancellor appointed attorney Frances Stephenson to serve as guardian ad litem (GAL). Because Adam had not seen B.H. since August 2015, the GAL met with B.H. and Adam in her office to observe how B.H. reacted to Adam. The GAL reported that B.H. was uncomfortable around her father, so she recommended that B.H. receive counseling from a child psychologist. The chancellor accepted the GAL's recommendation and ordered B.H. to receive counseling from Dr. Jennifer Whitcomb. The court also ordered the GAL to continue working with B.H., Priscilla, and Adam to determine if and how Adam's visitation with B.H. should proceed.

         ¶12. Dr. Whitcomb and the GAL determined that B.H. should have visitation with Adam and planned for them to visit briefly in Meridian on Friday, August 5, 2016, followed by an all-day visit on Saturday, August 6. If all went well, B.H. would then go with Adam for a week-long visit in Ohio.

         ¶13. The visit on August 5 did not start out well. When Priscilla and Shawn brought B.H. to the meeting place, they did not leave immediately, and B.H. became upset. However, Dr. Whitcomb eventually calmed B.H. and persuaded her to go with Adam, and Adam returned B.H. to Priscilla later that evening without further incident.

         ¶14. The following day, Dr. Whitcomb and the GAL planned to pick up B.H. and then take her to a nail salon to meet Adam. B.H. willingly went with Dr. Whitcomb and the GAL, and "she was excited about . . . getting her nails done, and that she would be seeing Adam." However, on the way to the nail salon, Dr. Whitcomb and the GAL noticed that Priscilla and Shawn were following their car. Shawn parked across the street from the nail salon at a gas station, and Priscilla later admitted that she hid in a friend's car in a nearby parking lot. The GAL and Dr. Whitcomb left B.H. at the nail salon with Adam after they were convinced that she was comfortable with him.

         ¶15. Priscilla later sent the GAL a text message accusing her of not saying "goodbye" to B.H. and having only Adam's interests at heart. Priscilla sent another text message to the GAL asserting that B.H. was "bawling her eyes out" in the nail salon. The GAL realized that Priscilla must have a "spy" inside the salon, which Priscilla later admitted. The GAL knew the salon owner and called him to check on B.H. The owner said that B.H. cried briefly after the GAL departed but was fine.[3] The GAL then called Adam and suggested that he take B.H. to a water park in Choctaw once she finished her manicure. He did so, and he returned B.H. to Priscilla that evening without further incident.

         ¶16. B.H. agreed to travel with Adam to his home in Ohio on August 7. B.H. stayed with Adam until August 13, when Priscilla and Shawn came to pick her up. Adam testified at trial that they had a good visit. When Adam had to work, B.H. stayed with a babysitter who had a daughter close to her age. No problems were reported during this visit. B.H. also stayed with Adam for a week in September 2016, and Adam's sister came to Ohio to visit with B.H. and babysit while Adam worked.

         ¶17. Adam requested visitation with B.H. while he was in Mississippi for trial in September 2016, but Priscilla refused. She also refused to allow any post-trial visitation. She told Adam that she would not allow further visitation without a court order.

         ¶18. At trial, Priscilla testified that she did not notice any burns on B.H. before Adam's visitation in August 2015. She claimed that Shawn noticed the burns almost immediately after picking up B.H. in Ohio. Priscilla acknowledged that B.H. told her and Shawn, the police, and doctors at the hospital in Ohio that she had been burned on the oven or stove at their home in Mississippi. However, Priscilla denied that B.H. was burned in Mississippi, and she suggested that B.H. may have been coached. Priscilla also claimed that B.H. told her much later that she had been burned by a cigarette or a lighter. However, no one else heard B.H. make that claim. Priscilla testified that although she filed a police report in Ohio, she did not intend for Adam to be named as a "suspect" or an alleged perpetrator of the abuse. Priscilla suspected that Adam's babysitter, Mandy, had burned B.H. Priscilla faulted Adam for leaving B.H. with Mandy after he discovered the burns. Priscilla also claimed that she denied Adam visitation after August 2015 in order "to protect B.H. from being harmed further." Priscilla thought that Adam should only be allowed supervised visitation with B.H. in Mississippi.

         ¶19. Adam testified that he first noticed the burn on B.H.'s finger, but it did not concern him initially. When he later noticed a burn on her arm and Mandy told him about the burn on her buttock, he decided to ask B.H. about them. B.H. told him that she burned her hand and arm on the stove at home in Mississippi, and she burned her buttock when Shawn was taking something out of the oven. Adam called MDCPS in Mississippi to report what B.H. had told him, and he took B.H. to the hospital to document the burns. Adam said that the burns were healing, so he was not worried about treatment. He denied that B.H. had received the burns while in his or Mandy's care.

         ¶20. Adam testified that in September 2015, he flew to Mississippi, rented a car, drove to Meridian, and waited for Priscilla to bring B.H. to him at their standard meeting place. He told Priscilla that he was coming and that he had a plane ticket for B.H. to fly back to Ohio with him. Priscilla sent him a text that said, "I told you not to come. I'm not giving her to you." Adam flew back to Ohio the next morning, without B.H. Although he was entitled to visitation with B.H. during Christmas in 2015, Priscilla told him that she would not allow it. Adam testified that he initially bought a plane ticket to come to Mississippi again in December, but he ultimately decided not to make the trip. He testified that when he was finally allowed to resume visitation with B.H. in Ohio, they bonded and had a good time together. B.H. is now very affectionate with him and tells him that she loves him.

         ¶21. Adam testified that his income will fluctuate over the next few years as he continues his training as an orthopedic surgeon. He did not think that the chancellor should increase his child support because he had paid all court-ordered child support even while Priscilla continued to violate the same court orders. Adam testified that his work schedule varies, but he generally works from 6 or 7 a.m. to 3 p.m. Adam testified that he would work ...


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