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Kaiser v. Kaiser

Court of Appeals of Mississippi

June 11, 2019


          DATE OF JUDGMENT: 01/17/2018





          C. WILSON, J.

         ¶1. Armond Albert Kaiser ("Al") appeals the chancellor's award of "primary physical custody"[1] of his two minor children to his ex-wife, Melanie Janae Kaiser ("Melanie"). We find no error and affirm.


         ¶2. Al and Melanie were married in December 2010. Prior to their marriage, Al and Melanie had one child, Katie, [2] born in 2007. Their second child, Avery, was born in 2014. In March 2015, Al and Melanie separated. Following their separation, Al remained in Diamondhead, Mississippi, with the children, and Melanie moved to Louisiana.

         ¶3. Al subsequently filed for divorce in Mississippi, and Melanie filed a separate divorce action in Louisiana. Jurisdictional issues arose after the separate filings. Ultimately, the Louisiana court retained jurisdiction over the divorce action and the Mississippi chancery court retained jurisdiction over all matters related to the custody of the two minor children.

         ¶4. In July 2015, Melanie's then boyfriend, John Pullen, was arrested for simple assault/domestic violence and resisting arrest. According to the police report, Melanie contacted the police due to "problem[s] with her intoxicated (live-in) boyfriend." Once the police arrived, Melanie advised that Pullen was "extremely intoxicated" and "started to take punches at her but was so intoxicated it gave her an opportunity not to be hit because he fell onto the floor." The police had to "physically take [Pullen] to the floor and wrestle him in order to handcuff him." The police then took Pullen into custody and transported him to the police station. Melanie had the two children in her care on this date, but the children are not mentioned in the police report.

         ¶5. From August to November 2015, Melanie did not see her children despite numerous requests and efforts to see and speak to them. On one occasion, Al agreed to meet Melanie to exchange custody, but Al failed to appear at the agreed-upon time and location. When Melanie inquired about her children, Al responded that "[t]he children [we]re fine" and that he was "going out of town to stay with people [Melanie] d[id] not know." Al then took the children to a casino where they stayed for a few nights. Thereafter, Al sent Melanie an email proposing a visitation schedule "contract" that required Melanie to pay to see her children.

         ¶6. On Katie's birthday, Melanie called Al but was not allowed to speak to Katie. When Melanie went to Katie's school to inquire about lunch, Al checked Katie out of school for the sole purpose of preventing Melanie from seeing her. Al then called law enforcement and alleged that Melanie was stalking Katie. Al subsequently obtained an order of protection against Melanie despite no arrest or charges filed against Melanie.

         ¶7. In December 2015, Al filed a motion for emergency temporary relief wherein he expressed his concern for his children's safety due to Pullen's history of alcohol abuse and domestic violence. Thereafter, the chancellor entered an order enjoining Melanie from allowing the children to be in the presence of Pullen.

         ¶8. In May 2016, Melanie filed a motion to appoint guardian ad litem and to modify the court's temporary custody order. Melanie requested the court modify its temporary order to allow her visitation to occur in her new apartment rather than in her parents' home. Melanie also requested, "[g]iven the allegations made by [Al] in this cause," that the Court "[appoint] a Guardian Ad Litem to investigate said allegations and make a report to [the] Court on the date of trial regarding the custody of the minor children of the parties[.]" Al did not join Melanie's request or otherwise file a response to her motion.

         ¶9. The chancellor appointed a guardian ad litem ("GAL") on June 27, 2016. Pursuant to the chancellor's order:

[T]he Guardian Ad Litem shall assist the court in this matter by taking any steps necessary to investigate this case, including, but not limited to, interviewing all parties and minor children, making a home visit of the parties, attending the deposition of the parties, and make her reports and findings to the Court before the review date set below, specifically as concerns [Melanie's] visitation with the minor child[ren]. That the parties shall have the opportunity to depose the Guardian Ad Litem if either party [chooses] to do so, and in the event a deposition of the Guardian Ad Litem is taken, the same shall be made available to the Court as soon as possible prior to the trial of this matter. That it is understood that the Guardian Ad Litem will not be available for the actual trial of this matter, but she may be reached by telephone if the Court so desires to speak with the Guardian Ad Litem.

         Following her appointment, the GAL interviewed the parties and the two minor children, attended the parties' depositions, conducted a home visit, and provided a letter-report to the chancellor on November 11, 2016. In her report, the GAL gave a preliminary recommendation that Al should be awarded "primary physical custody" of the children and that Melanie should be awarded visitation to include alternating weekends and holidays as well as generous visitation during the summer months.

         ¶10. The trial in this matter took place over approximately eleven days, beginning in November 2016 and ending in January 2018. The GAL testified at trial consistent with her November 2016 report, but the GAL neither completed her testimony nor attended the entire trial. Soon after the GAL testified at trial, she filed a motion to withdraw, and the chancellor granted the GAL's request. The GAL did not make a final recommendation to the chancellor either within her November 2016 report or at trial. On January 17, 2018, the chancellor entered a detailed final judgment and awarded physical custody of the two minor children to Melanie and regularly scheduled visitation to Al.

         ¶11. In the final judgment, the chancellor found that the GAL's appointment was discretionary and did not specifically include in her findings the reasons for rejecting the GAL's initial custody recommendation:

The GAL did not finish her testimony at trial and moved the Court to allow her withdrawal shortly thereafter. The Court granted her relief without appointing a substitute, because the Court determined that the services of a GAL were no longer necessary. The Court initially appointed the GAL due to Al's allegations during the period of time in which Al wrongfully withheld contact between Melanie and the children from August to October 2015. Neither the Court nor the GAL found that the children were in danger in Melanie's care. There were no allegations of abuse that mandated the appointment of a GAL in the first instance. The appointment [of the GAL] was in fact discretionary and made for investigative purposes.

         ¶12. Al now appeals and contends: (1) The chancellor erred in not finding it was in the best interest of the minor children to be kept in the custody of Al from August to November 2015; (2) the chancellor erred in finding that the appointment of the GAL was discretionary and in allowing the GAL to withdraw during trial without rendering a final recommendation; (3) the chancellor erred in awarding physical custody of the two ...

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