Adams v. Rice

          DATE OF JUDGMENT: 04/06/2016

          COURT FROM WHICH APPEALED: OKTIBBEHA COUNTY CHANCERY COURT HON. DOROTHY WINSTON COLOM

          ATTORNEY FOR APPELLANT: ELLE A. ADAMS (PRO SE)

          ATTORNEY FOR APPELLEE: MARK G. WILLIAMSON

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

          BARNES, J.

         ¶1. Elle Adams (a.k.a. Elle Aquilera, Ellie Adams, Elle Agundis), appearing pro se, appeals the judgment of the Oktibbeha County Chancery Court, which found that she was in contempt for not allowing John Rice visitation with their minor child. Additionally, the chancery court declined to modify custody. Elle appeals, raising issues of judicial bias, jurisdiction, child custody, and ineffective assistance of counsel. Finding no error, we affirm.

         STATEMENT OF FACTS AND PROCEDURAL HISTORY

         ¶2. This appeal stems from John's petition for contempt and modification of child custody filed in November 2015. He alleged that Elle refused to allow him visitation or contact with their two-year old child, Aaron.^[1] John requested that Elle be held in contempt for her failure to follow the court's order and be required to pay his attorney's fees and other costs. Additionally, John requested that the court modify its prior order and award him physical custody of Aaron subject to Elle's restricted and supervised visitation.

         ¶3. The initial action of this case was filed in December 2013. John filed a petition to establish paternity, custody, and support of Aaron. He initially requested custody of Aaron. Elle filed a counterclaim for custody, child support, and medical expenses incurred from the birth of the child. After a September 2014 hearing, the issues were narrowed to visitation privileges, health insurance, and child support, as John's paternity had been established, and he no longer desired physical custody.

         ¶4. In its opinion and final judgment of December 2014, the chancery court granted Elle physical custody of Aaron, with both parties having joint legal custody. John was awarded visitation consisting of alternating weekends and specific holidays. At the time, Elle lived in Gulf Shores, Alabama, and John lived in Starkville, Mississippi; so the parties were to exchange the child at the Meridian Police Department. John was ordered to pay child support. Elle appealed the judgment, arguing the chancellor erred in granting unsupervised visitation to John and joint legal custody. Adams v. Rice, 196 So.3d 1086, 1089 (¶9) (Miss. Ct. App. 2016). She also claimed the chancellor should have declined jurisdiction based on the doctrine of forum non conveniens. Id. at 1090 (¶14). This Court affirmed the chancery court. Id. at (¶16).

         ¶5. In February 2015, a family court in Jefferson County, Alabama, granted Elle an ex parte temporary protection order due to alleged domestic abuse by John. She claimed she fled to Alabama to escape John's abuse. On August 17, 2015, the Alabama family court made the order permanent, "suspended" John's visitation, and closed the matter.

         ¶6. On November 12, 2015, John filed his petition for citation of contempt and modification of custody. In February 2016, Elle filed motions to appoint a court interpreter and to contest the chancery court's jurisdiction under the Uniform Child Custody Jurisdictional Enforcement Act (UCCJEA). In response to the motion for an interpreter, John revealed that Elle actually worked as a Spanish interpreter. He reasoned that she was merely trying to delay the proceedings. As for the jurisdictional motion, John argued that the initial custody determination was made in Oktibbeha County, where he still lived, but Elle unilaterally moved to Alabama with neither a job nor friends with the intent to separate him from his son.

         ¶7. On March 14, 2016, Elle obtained another ex parte temporary protection order, this time in Baldwin County, Alabama.^[2] On March 15, 2016, John filed a motion for Elle to bring their child to the final hearing scheduled for March 31, 2016, because John had not seen him since the September 2014 hearing. Elle failed to appear at the March 22, 2016 hearing on these motions, but she was represented by counsel. The chancellor denied Elle's two motions and granted John's motion. The chancellor ruled that Elle's failure to appear was fatal to both motions, as no testimony or evidence was presented in their support.

         ¶8. On March 30, 2016, one day prior to the final hearing, Elle filed an answer and counterclaim. She denied that she was in contempt. Elle alleged that she was under the protection of the Baldwin County order and formerly under the protection of the Jefferson County order. Additionally, Elle requested that the court hold John in contempt for failure to pay child support.^[3] Elle also filed the aforementioned motion for the chancellor's recusal with the Mississippi Supreme Court.

         ¶9. At the final hearing on March 31, 2016, Elle again did not appear or produce the child as ordered. She told her attorney the reason for her absence was because Aaron was sick and had a doctor's appointment. Elle's counsel appeared and represented her client in her absence; however, counsel was forced to rest without presenting any testimony or evidence.

         ¶10. The chancery court issued a detailed opinion and final judgment. The chancellor found she had jurisdiction under the UCCJEA. The chancellor was not convinced that there was a legitimate threat of domestic violence against Elle, finding her claims of rape and abuse were not credible. It was the chancellor's opinion that Elle was using the benefits of domestic protection orders "as a means to circumvent the orders of this court." The chancellor further determined that the protection orders did not thwart jurisdiction: the Jefferson County order had been dismissed; and the Baldwin County protection order, if still in effect, had no authority to interfere with the chancery court's decision. The chancellor noted that John had no notice of the Baldwin County order, nor had the Baldwin county court contacted the Mississippi chancery court to discuss custody or visitation. The chancellor also noted the fact that Elle failed to appear at the March 31 hearing to address the issues she raised by motion.

         ¶11. The chancellor also found Elle in contempt for failure to comply with the visitation schedule of the December 2014 order. John had absolutely no visitation with his son since September 2014, and the chancellor found Elle had "a pattern [of] misuse [of] the judicial system to thwart John's legal right to visit and bond with his son." Elle was also found in contempt for failing to produce the child at the March 31 hearing. While Elle's attorney informed the chancellor that Elle had texted her numerous times to explain that Aaron had been sick and had a doctor's appointment, no documentation was presented to justify the failure. Because Elle failed to appear and offer proof, John was not held in contempt for failure to pay child support; however, he was ordered to pay the arrearage to Elle. Regarding modification of custody, Elle was denied sole custody of Aaron, and John was denied physical custody of Aaron "at this time." The chancellor found that while Elle's denial of visitation caused a material change of circumstances that adversely affected Aaron, after evaluating the Albright^[4] factors, she found that a change of custody to John was not in Aaron's best interest, as Aaron had yet to develop a bond with John. The visitation schedule of the original custody order was to remain in effect.

         ¶12. Elle appeals pro se, raising four issues: (1) the chancellor should have recused as she harbored bias against Elle; (2) the chancery court lacked jurisdiction to hear the case due to the Alabama protective orders; (3) the chancellor erred by ...