OF JUDGMENT: 11/14/2016
LAUDERDALE COUNTY CHANCERY COURT HON. JERRY G. MASON TRIAL
ATTORNEY FOR APPELLANT: J. DOUGLAS FORD
ATTORNEYS FOR APPELLEE: LESLIE C. GATES WILLIAM STACY KELLUM
IRVING, P.J., CARLTON AND WILSON, JJ.
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.
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.
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."
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 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.
AND PROCEDURAL HISTORY
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
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.
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.
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 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
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.
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
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.
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.
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.
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. 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
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.
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.
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.
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
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.
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 ...