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Wilkinson v. Wilkinson

Court of Appeals of Mississippi

February 26, 2019

RODNEY J. WILKINSON APPELLANT
v.
STEPHANIE WILKINSON APPELLEE

          DATE OF JUDGMENT: 06/05/2017

          TRIAL JUDGE: HON. JENNIFER T. SCHLOEGEL COURT FROM WHICH APPEALED: HANCOCK COUNTY CHANCERY COURT

          ATTORNEYS FOR APPELLANT: WILLIAM ALEX BRADY II MICHELLE ELIZABETH LUBER

          ATTORNEY FOR APPELLEE: PATRICK TAYLOR GUILD

         EN BANC

          BARNES, C.J.

         ¶1. Rodney Wilkinson (Rod) appeals the Chancery Court of Hancock County's dismissal of his motion for modification of custody and contempt, as well as the chancery court's finding of contempt against him and the award of attorney's fees to Stephanie Wilkinson. Finding no error, we affirm.

         STATEMENT OF FACTS AND PROCEDURAL HISTORY

         ¶2. Rod and Stephanie were married in May 2009 and separated in 2011. They agreed to a divorce based on irreconcilable differences in March 2015. One child was born of the marriage-Olivia-who was nearly four-years old at the time of the divorce. Stephanie was granted primary physical custody of Olivia and child support of $505 per month. In the Property Settlement and Custody Agreement, the chancery court outlined a detailed visitation schedule for Rod, including physical and telephonic visits. Both parties had other children from prior relationships. Rod had custody of his daughter Alysa, who is about three years older than Olivia, and Stephanie has a son, Evan. During the time of this proceeding, custody of Evan had been temporarily transferred to Evan's father, Chris Zimmerman.[1]

         ¶3. Despite their divorce, Rod and Stephanie resumed their sexual relationship from August 2015 through January 2016. At times, Rod would spend the night at Stephanie's home during visitation with Olivia. However, their post-divorce relationship was extremely volatile. The Wilkinsons communicated frequently by text message, and their tone ranged from pleasant to profane.[2] Their relationship's volatility especially escalated when both parties started dating other individuals. At some point in 2016, Stephanie entered into a romantic relationship with Curtis Thomas, a long-time friend and family member, who was allegedly separated from his wife, Tabitha. Stephanie stated that Curtis pursued her. Their relationship culminated with a trip to Key West, Florida, with friends in May, but both claimed their relationship never became sexual. By August 2016, Curtis testified that Stephanie broke off the relationship because "she had to do what was right for her family." Stephanie claimed Curtis then harassed her, and she tried to enlist Rod's help to stop him.

         ¶4. In an attempt to show Stephanie was "unstable, violent, dangerous," and regularly put Olivia in perilous situations, Rod presented testimony and recorded evidence (both audio and video) of several incidents where Stephanie lost her temper and used profanity, sometimes in front of Olivia. Stephanie, however, claimed that Rod "set her up" during these incidents by intentionally making her upset and then recording her angry reaction.

         ¶5. The most egregious incident occurred in the early morning hours of August 2, 2015. Rod was standing in the parking lot of a local bar when Stephanie intentionally crashed her vehicle into Rod's truck, moving it several feet. Olivia was not present. Stephanie admitted she was upset with Rod after seeing him that night socializing with another woman in his truck. Stephanie claimed she and Rod were "in a relationship trying to work everything out" at the time. Stephanie was arrested for domestic violence, but Rod dropped the charges.[3]

         ¶6. At the hearing, Rod presented several other incidents to show inappropriate behavior by Stephanie which occurred in 2016. One of Rod's friends testified that one evening in February, after a Mardi Gras parade, she and Rod's sister saw Olivia and Stephanie standing by the jukebox of the local Veterans of Foreign Wars (VFW) post. The friend commented to Stephanie, "[W]ow, now you're bringing your daughter into bars. That's awesome." Then she called and reported the sighting to Rod. Stephanie, however, explained that she and Olivia went to the VFW to take an aunt money, and her uncle asked Olivia to come inside the bar for a Coke and peanuts. They were inside the building for fifteen minutes.

         ¶7. In another incident in April 2016, Stephanie was at the Margaritaville Casino hotel with Olivia and Evan when she read a text message on Evan's mobile telephone from Chris's girlfriend at the time. Stephanie became enraged, yelling profanity at Evan while Olivia was present. At the time, Olivia was having a telephonic visit with Rod, who could overhear Stephanie yelling at Evan. He decided to record his conversation with Olivia, and later, it was entered into evidence against Stephanie.

         ¶8. In May 2016, Stephanie lost her temper with Rod during a visitation exchange. She destroyed a $250 check he gave her, finding it insulting. At the time, Rod had not paid Stephanie child support since January 2016. Rod recorded these incidents, which were entered into evidence. In the chancellor's opinion, during these incidents Rod was intentionally "exploiting Stephanie's emotional insecurities and allowed her to degrade him verbally." Unfortunately, Olivia was present during these encounters and upset by her parents' conflicts.

         ¶9. On August 19, 2016, however, Rod lost his temper with Stephanie during a visitation exchange, which compelled Stephanie to file petitions for a domestic-abuse protection order against Rod in both Hancock County Justice Court and the chancery court. Both the justice and chancery courts granted her separate orders, prohibiting Rod from contacting her. Therefore, during this time, Rod was unable to have telephonic visits with Olivia.

         ¶10. On September 22, 2016, Rod filed a motion for contempt and modification of custody, seeking primary physical custody of Olivia. His contempt allegations include consistent harassment on the telephone and in person by Stephanie; physical damage to his personal property (his truck); physical and verbal abuse; negative comments about him before Olivia; discussing adult matters before Olivia; alienating Olivia from him; and interfering with his physical and telephonic visitations, which included the "inappropriate" protective order preventing contact with Olivia.

         ¶11. A few days later, under Rod's recommendation, Stephanie filed a police report against Tabitha, Curtis's wife, for cyberstalking/email threats and simple assault for a five-month period of harassment.[4] On October 20, 2016, Stephanie answered Rod's motion and filed a counter-claim for contempt, alleging Rod twice failed to return Olivia at the proper time, failed to pay child support, failed to provide timely income-tax returns and insurance cards, and spoke to her in a derogatory manner.

         ¶12. A hearing on the motions took place over a six-day period in February and May 2017. Nearly 1, 000 pages of exhibits were entered into evidence. At the conclusion of Rod's casein-chief, Stephanie moved to dismiss Rod's modification of custody and allegations of her physical visitation contempt under Mississippi Rule of Civil Procedure 41(b), both of which were granted. The chancery court found no material change in circumstance adverse to Olivia, thus an Albright[5] analysis was unnecessary.

         ¶13. The chancellor provided detailed observations in her final judgment on the emotionally abusive pattern of behavior by both parties and its ramifications on Olivia. We find it helpful to relay some of these observations as they explain much of the couple's-and especially Stephanie's-poor judgment and bad behavior. The chancellor found their relationship "alternat[ed] between love, hate, praise, criticism, accusations, sexual flirting, blaming, provocation, shaming, and guilt trips." "[B]oth [parties were] responsible for continuing in this conflict, fueling it, and blaming the other." In the parties' numerous text messages, Rod, who "maintained a facade of reasonableness," would threaten to take Stephanie to court when he did not get what he wanted. In response, Stephanie would lash out, belittling Rod with vulgar name-calling.

         ¶14. The chancellor also found "Rod provided no stability to Stephanie's life," and while she received financial help from him, she had to beg for it, never knowing the exact amount per month she might receive. Stephanie, however, made no attempt to extricate herself from this toxic relationship. The chancellor found "this type of parental conflict [was] not in the best interest of any child." However, Stephanie's August 2016 restraining order against Rod was actually in Olivia's best interest, bringing "some measure of peace" to her parents' "dysfunctional, love-hate relationship" by severely restricting their communication.

         ¶15. On June 5, 2017, the chancery court entered a final judgment, finding Rod in contempt for failure to pay child support from February through August 2016 in the amount of $2, 175.81, and for not returning Olivia at the close of two holiday weekends in 2016. However, Rod was not in contempt for failing to provide timely insurance and tax documentation to Stephanie. Stephanie was not in contempt for failing to allow telephonic visitation with Olivia. However, both parties were in contempt of the original divorce decree prohibiting them from speaking to one another in a derogatory or disrespectful manner in front of Olivia. Regarding attorney's fees, the court awarded Stephanie $3, 700 from Rod due to his contempt of child support and visitation and additional attorney's fees of $4, 933 unrelated to contempt. Finally, the chancellor prohibited the parties from communicating with one another in any form, unless it related to telephonic visitation with Olivia or other specified reasons.

         ANALYSIS OF ISSUES

         I. MODIFICATION OF CUSTODY

         ¶16. Rod requests reversal of the chancellor's denial of his motion for modification of custody, and remand for an Albright analysis. It is uncontested that both parties were responsible for their volatile relationship and Stephanie's restraining order alleviated this conflict. However, Rod argues that Stephanie's conduct before the restraining order demonstrated an adverse material change in circumstance and warranted an Albright analysis for modification of custody.

         ¶17. This Court's "standard of review for child custody cases is quite limited. A chancellor must be manifestly wrong, clearly erroneous, or apply an erroneous legal standard in order for [the appellate court] to reverse." Johnson v. Gray, 859 So.2d 1006, 1012 (¶31) (Miss. 2003). A chancellor's findings of fact "may not be set aside or disturbed upon appeal if they are supported by substantial, credible evidence." Id. at (¶32). In order for child custody to be modified, the noncustodial parent must prove: "(1) a material change in circumstances has occurred since the issuance of the judgment or decree sought to be modified, (2) the change adversely affects the welfare of the child, and (3) the proposed change in custody would be in the best interest of the child." Gilliland v. Gilliland, 984 So.2d 364, 367 (¶7) (Miss. Ct. App. 2008) (citing Lambert v. Lambert, 872 So.2d 679, 683-84 (¶18) (Miss. Ct. App. 2003)). A change in circumstances refers to "the overall living conditions in which the child is found. The 'totality of the circumstances' must be considered." Riley v. Doerner, 677 So.2d 740, 743 (Miss. 1996) (quoting Tucker v. Tucker, 453 So.2d 1294, 1297 (Miss. 1984)). If an adverse material change is found, the chancellor will next "apply the Albright factors to determine whether modification is in the child's best interest." White v. White, 26 So.2d 342, 351 (¶28) (Miss. 2010). In the absence of a material change, the Albright factors need not be considered. Id. "Above all . . . as in original awards of custody . . . [the] polestar consideration [is] the best interest and welfare of the child." Johnson, 859 So.2d at 1013 (¶33) (quoting Riley, 677 So.2d at 744).

         ¶18. The chancery court ruled that there was no material change in circumstance adverse to Olivia since the divorce decree and that changing custody to Rod was not in the child's best interest. The chancery court found both parties were at fault for their conflicts, which were not in the best interest of the child; however, Stephanie's restraining order against Rod alleviated the aggression between them. Evidence showed Olivia was doing well in school and healthy. Because a change in custody tends to be a "jolting, traumatic experience" for a child, the chancellor stated it is only parental behavior that poses a clear danger to the child's mental or emotional health that can create a "sufficient basis to seriously consider the drastic legal action of changing custody." Lambert, 872 So.2d at 684 (¶22) (quoting Ballard v. Ballard, 434 So.2d 1357, 1360 (Miss. 1983)). The chancellor did not find Stephanie's behavior rose to that level. We agree.

         ¶19. Rod claims the chancery court applied an erroneous legal standard by failing to consider the totality of the circumstances regarding the impact of Stephanie's inappropriate behavior on Olivia. On appeal, he discusses at length the following examples of such behavior since their divorce, which occurred over a year and one-half, as proof of an adverse material change: the truck incident; the VFW incident; the Margaritaville Casino incident; the recordings of Stephanie losing her temper at Rod during visitation exchanges; Stephanie's request to Rod to stop Curtis's harassment; the protection order against Rod; the criminal report against Tabitha; the text messages between the parties; and Evan's testimony.[6]

         ¶20. It is long established that:

Before custody may be changed, it must be shown that such conduct did substantially adversely affect the children and that it would, therefore, not be in the best interest of the children to remain with the custodial parent. Detrimental effect may not be presumed from such conduct and thus form the sole basis for denying custody.

Kavanaugh v. Carraway, 435 So.2d 697, 700 (Miss. 1983); see also Gilliland, 984 So.2d at 367 (¶¶8, 10) (affirming the denial of custody modification because ongoing conflict of the parents did not create material change in circumstances and determining that even if it had, there was no evidence that the children suffered an adverse effect). Ultimately, the chancellor found in the totality of the circumstances that Olivia was not living in an unhealthy home environment with her mother, and there was no evidence Rod's home environment would be any better. The chancery court did not condone Stephanie's numerous expressions of anger; nor do we. However, we agree with the chancellor's findings that there is no evidence Olivia suffered harm or "clear danger" from Stephanie's aggressive verbal and other behavior, and it did not create a "persistently adverse environment."[7] Her bad behavior usually manifested itself when interacting with Rod. Neither party appeared to be a poor parent individually, but when interacting, they brought out the worst in one another, often in the presence of Olivia. Unfortunately, Stephanie could not restrain herself from participating in this "dysfunctional cycle." While the incidents Rod points to are extremely unflattering to Stephanie, we can see a certain level of manipulation by Rod where he would goad Stephanie and then record her angry reactions in order to further his custody case. Because the parties are now limited in their contact with one another due to Stephanie's restraining order, these issues have significantly improved.

         ¶21. We agree with the chancellor that Stephanie's conduct "does not pose a clear danger to the child's mental or emotional health as a basis sufficient to seriously consider the drastic legal action of changing custody." Further, and most importantly, the best interest of the child appears to be in Stephanie's continued primary physical custody. Accordingly, we cannot find the chancellor abused her discretion in failing to find a material change of circumstances adverse to the child and declining to apply the Albright factors.

         II. CONTEMPT

         ¶22. Both parties filed motions for contempt against one another for various reasons. We shall ...


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