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Nicole v. Hewlett

Court of Appeals of Mississippi

March 12, 2019


          DATE OF JUDGMENT: 08/09/2017




         EN BANC

          J. WILSON, P.J.

         ¶1. When Amber Brown and James Hewlett divorced, they agreed that Brown, who had moved to Missouri, would have physical custody of their only child while Hewlett would have in-person and telephonic visitation. Less than four months later, Hewlett filed a petition for contempt, alleging that Brown was denying him telephonic visitation. Brown later denied Hewlett in-person visitation as well. Brown was eventually served with process but failed to appear in court for the contempt hearing. Brown's attorney appeared and requested a continuance, but the chancery court denied her request. Following the hearing, the court found Brown in contempt and ordered her to pay Hewlett $5, 000 in attorney's fees.

         ¶2. On appeal, Brown alleges that the chancery court erred by (1) denying her requests for a continuance and discovery; (2) finding her in contempt; and (3) awarding attorney's fees to Hewlett. For the reasons that follow, we find no error and affirm.


         ¶3. Brown and Hewlett were married in 2004. They have one daughter, Lily, who was born in 2005. In September 2015, Brown left the marital home in Pearl River County and moved to Missouri, taking Lily with her. Later that month, Hewlett filed a complaint in the Pearl River County Chancery Court for separate maintenance and custody of Lily. He later filed an amended complaint in which he sought a divorce and custody of Lily.

         ¶4. Brown was eventually served with process, and on December 18, 2015, the chancery court set the case for trial and ordered Brown to bring Lily to Mississippi for visitation with Hewlett during the Christmas holiday. However, Brown failed to comply with the court's order and denied Hewlett visitation with Lily. Therefore, on January 19, 2016, Hewlett filed a petition to cite Brown for contempt.

         ¶5. In November 2015, Brown had initiated a competing custody action in the Circuit Court of Greene County, Missouri. On January 11, 2016, pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), [1] the judge in the Missouri case conferred with the chancellor in the instant case. On January 21, 2016, pursuant to the UCCJEA, the Missouri court entered an order declining jurisdiction and deferring jurisdiction to the chancery court.

         ¶6. Following a hearing, on March 1, 2016, the chancery court entered an order. The court stated that "[Brown] had agreed and based upon her agreement is ordered to dismiss all actions in the [S]tate of Missouri and to proceed on this matter in Mississippi." The court ordered Brown to bring Lily to Mississippi for visitation with Hewlett during the week of March 5-12, 2016. The court also granted Hewlett an additional two weeks of visitation in June. The trial was continued to June 6, 2016. The court also deferred ruling on Hewlett's request for attorney's fees based on Brown's prior contempt.

         ¶7. The chancery court also appointed a guardian ad litem (GAL) to "investigate all allegations in the pleadings concerning alleged abuse, custody, visitation, support, and any and all other issues or concerns affecting [Lily's] welfare and best interests." The precise nature of the "alleged abuse" at issue is not clear from the record on appeal.

         ¶8. On March 31, 2016, Hewlett filed a petition for contempt and additional visitation. Hewlett alleged that Brown had failed to comply with her prior agreement, and the court's prior order, to dismiss all pending actions in Missouri. He alleged that he had incurred significant legal expenses as a result of the still-active case in Missouri.

         ¶9. On April 7, 2016, Brown filed an answer to Hewlett's complaint for divorce as well as a counterclaim for divorce. Brown asserted that Lily's home state for purposes of the UCCJEA was Missouri rather than Mississippi. Therefore, Brown asserted that the chancery court lacked jurisdiction over matters pertaining to Lily's custody.

         ¶10. Prior to trial, Brown and Hewlett withdrew their fault-based grounds for divorce and consented to an irreconcilable differences divorce. The parties' consent to the divorce provided that the chancery court would decide issues related to child custody, visitation, and child support, and trial on those issues was continued to October 20, 2016.

         ¶11. However, on October 20, 2016, Brown and Hewlett entered into a child custody and property settlement agreement, and the chancery court approved the agreement and incorporated it into the court's final judgment of divorce. Brown and Hewlett agreed to joint legal custody of Lily, with Brown to have physical custody and Hewlett to have visitation. The agreement provided that Hewlett could exercise visitation up to two weekends per month in Missouri. In addition, the agreement granted Hewlett visitation in Mississippi during the summer (beginning June 1 and ending July 12), spring break, and holidays. Finally, the agreement granted Hewlett telephonic visitation at least twice per week. Hewlett agreed to pay child support of $300 per month.

         ¶12. Less than four months later, on February 7, 2017, Hewlett filed a petition for contempt, alleging that Brown had interfered with his telephonic visitation and, as a result, he had not spoken to Lily since Christmas. A Rule 81 summons was issued for Brown on February 23, 2017, which ordered her to appear for a hearing on May 8, 2017. See M.R.C.P. 81(d). In an affidavit dated April 27, 2017, a process server stated that he had made four unsuccessful attempts to serve Brown at her residence in Missouri. On the first attempt, a woman, later identified as Brown's mother, answered the door and stated that Brown was not home. Brown's mother told the process server that she would not cooperate with any efforts to serve Brown. The process server stated that the next three times he visited Brown's residence, the lights and ceiling fan were on, but no one answered the door. The process server concluded that Brown was evading service.

         ¶13. On May 19, 2017, Hewlett filed a "motion for ex parte emergency relief" pursuant Mississippi Rule of Civil Procedure 65. Hewlett claimed that Brown had "again initiated spurious custody litigation" in Missouri in an effort to alienate his daughter from him and to deprive the chancery court of jurisdiction. Hewlett alleged that Brown had registered the chancery court's judgment in Missouri without proper notice to him, and he had been summoned to appear at a hearing in Missouri on May 23, 2017. Brown had petitioned the Missouri court to modify the custody provisions of the chancery court's judgment, which she had agreed to only six months earlier. Specifically, Brown had asked the Missouri court to grant her sole legal custody of Lily and to limit Hewlett to supervised visitation in Missouri. Hewlett's motion for ex parte emergency relief asked the chancery court to award him attorney's fees for having to defend the Missouri litigation and for Brown's contempt.

         ¶14. In an order entered on May 22, 2017, the chancery court affirmed its continuing exclusive jurisdiction, pursuant to the UCCJEA, over matters related to Lily's custody. The court also ordered Brown to appear for a show cause hearing to explain why she was evading service and why she was continuing to pursue litigation in Missouri. The hearing was set for June 12, 2017. The order also stated that it should be "registered with the appropriate Court in the State of Missouri for notice upon [Brown]." Hewlett's attorney in Missouri promptly filed the May 22 order in the Missouri court. The record is unclear regarding any subsequent action taken by the Missouri court.

         ¶15. Brown did not appear at the show cause hearing on June 12, 2017. Hewlett appeared and testified that he had exercised in-person visitation during spring break in March 2017. However, he had talked to Lily only once by phone during all of 2017, even though he had attempted to contact her on an almost daily basis. In addition, Hewlett was being denied his summer visitation with Lily-which was supposed to have started on June 1-because Brown had refused to communicate with him since March. Hewlett's parents testified and corroborated Hewlett's testimony.

         ¶16. On June 14, 2017, the chancery court entered an order finding that Brown had failed to appear at the hearing despite receiving proper notice-i.e., the May 22 order filed in the Missouri court. The chancery court also found that Brown was continuing to deny Hewlett visitation. Therefore, the court also issued a "writ of assistance" directing the sheriff of Pearl River County to take custody of Lily and deliver her to Hewlett for summer visitation. The court ordered the sheriff to communicate with the sheriff of Greene County, Missouri, to assist in the execution of the writ of assistance. The court also set a hearing for August 7, 2017, to address pending matters, including attorney's fees and sanctions.

         ¶17. On July 12, 2017, Hewlett filed another motion for ex parte relief. He alleged that Brown had continued to deny him visitation and that the sheriff of Greene County, Missouri, would not comply with the chancery court's writ of assistance. Hewlett's motion was set for a hearing on August 7, 2017, and the clerk issued a new Rule 81 summons for Brown. The summons directed Brown to appear at the hearing to defend against the complaint for contempt, emergency show cause motion, ex parte motions for emergency relief, and show cause orders. Brown was finally served with the summons on August 1, 2017.

         ¶18. In late July or early August 2017, the chancellor conferred with the judge in the Missouri case filed by Brown. As a result of their conference, the Missouri court again declined to exercise jurisdiction. Brown filed a motion for reconsideration in the Missouri court. She apparently argued that the court had erred by declining to exercise jurisdiction without notice to her or a hearing. The record does not contain Brown's motion or any written order from ...

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