OF JUDGMENT: 02/12/2018
FROM WHICH APPEALED: PERRY COUNTY CHANCERY COURT TRIAL JUDGE:
HON. DEBORAH J. GAMBRELL
ATTORNEY FOR APPELLANT: LEE TURNER
ATTORNEYS FOR APPELLEE: BARRON CRUZ GRAY THOMAS T. BUCHANAN
BARNES, C.J., GREENLEE AND LAWRENCE, JJ.
Kendra Munday (Kendra) appeals the Perry County Chancery
Court's decision to modify the child-custody agreement
between her and her ex-husband, Robert McLendon (Robert).
Following a hearing, the chancellor changed physical custody
of the former couple's only child from Kendra to Robert.
Kendra appealed, claiming that the chancellor erred in
denying her motion for a continuance and awarding Robert
physical custody. We find no abuse of discretion and
therefore affirm the chancellor's judgment.
Kendra and Robert married on August 1, 2008. They had one
child together- B.A.M.- born September 27, 2008. The couple later
divorced on June 24, 2013. The child-custody agreement stated
that Kendra would have physical custody of the minor child,
with Robert receiving visitation every other Wednesday and
every other weekend. The agreement further stated that Robert
would receive five weeks of summer visitation. For regular
biweekly visitation exchanges of the child, Robert and Kendra
agreed to meet at a halfway point-McClain, Mississippi. The
agreement allowed for Robert's family to assist in
transportation for the visitation exchange. Robert and Kendra
agreed to share joint legal custody, and Robert was ordered
to pay $350 in child support. Finally, the agreement
specified that in the event either parent moved or changed
addresses or phone numbers, he or she must notify the other
parent of the change and file the change in Perry County.
On December 15, 2016, Robert filed a complaint for
modification and citation of contempt. Robert claimed
that, since the entry of the divorce judgment, Kendra failed
to allow him to make up over fifty days of visitation missed
due to his work schedule, that she refused to respond to his
text messages regarding B.A.M., that she refused to allow his
family to pick B.A.M. up for visitation exchange, and that
she had moved to Louisiana and failed to notify him of her
address or B.A.M.'s school information. He also claimed
that a material change in circumstances adversely affecting
the child had occurred. The material changes included
Kendra's move to Louisiana, Kendra's mother (who
allegedly has a criminal record) babysitting the child, and
the child coming to his house with a severe sunburn, flea
bites, and dirty clothes.
Kendra filed her answer and defenses to the complaint for
modification and citation of contempt and a counterclaim for
modification and contempt and other equitable relief. In her
counterclaim, Kendra asserted that Robert failed to timely
return the child from visitation. She also stated that the
mid-week visitation was no longer feasible due to her move to
Louisiana. As a result, Kendra requested that the court
designate a new halfway point.
The court appointed a guardian ad litem (GAL) on February 23,
2017. On February 27, 2017, the court entered a temporary
order directing the parties to continue visitation as
previously ordered and allowing the child to have her cell
phone returned to her with no restrictions on calling or
texting Robert. However, the court allowed Kendra to turn off
any GPS/location services on the phone when the child was in
her care. The court also ordered Robert and Kendra to each
pay $1, 000 for the GAL's representation.
On March 28, 2017, Robert filed a complaint for citation of
contempt of the temporary order, claiming that Kendra had
refused to allow the child to text or call him and had
withheld visitation. In her answer, Kendra denied
The GAL submitted her report on January 29, 2018. Attorneys
for both sides received a copy. That same day, Kendra filed a
motion for continuance, claiming that she should have also
received a copy of the GAL's report since she lived too
far away to review her attorney's copy. The court later
denied the motion,  and the case proceeded to trial on
February 1, 2018.
Kendra testified that she had three children-one with Robert,
one child (six years old) from a previous relationship, and
one child (six weeks old) with her current husband. Her
youngest child suffers from hyperinsulinemia and
hyperammonemia. At the time of trial, Kendra was not working
outside of the home. She testified that she stopped working
in May 2017 due to pregnancy complications.
Kendra testified that she moved to Abbeville, Louisiana, on
December 1, 2016. Before her move, Kendra lived in
Leakesville, Mississippi. She also testified that her mother,
father, and brother live in Leakesville and that she had
other relatives in the surrounding area. Kendra stated that
her husband was a store manager and that the company
discussed moving him to Nashville, Tennessee. Kendra stated
that "[i]t would be a great opportunity, but there's
nothing definite or set in stone."
When questioning Kendra, plaintiff's counsel showed her
pictures of B.A.M., sunburned. The child's body
had blisters from the sunburn. Kendra testified that she had
never seen B.A.M. with a sunburn like the one pictured.
Regarding B.A.M.'s hygiene, Kendra stated that she made
B.A.M. take a bath every day unless she spent the day
"[lying] around the house."
Kendra stated that Robert was "well aware" of her
move to Louisiana and B.A.M.'s change in schools. She
testified that B.A.M. had done well in her new school and
enjoyed participating in classroom activities. Kendra stated
that B.A.M. was not involved in any extracurricular
activities. When asked if she had ever inhibited B.A.M. from
contacting her father, Kendra stated "no" and that
the phone stayed in the child's room at all times.
Plaintiff's counsel questioned Kendra about Exhibit 11,
which showed "screenshots" of Kendra's text
messages. Specifically, Exhibit 11 showed Kendra's text
messages to Robert about visitation on May 28, 2017. In one
message, Kendra stated that she would meet Robert on May 28
at 6 p.m. She then stated that she could meet him in McClain
at 5:30 p.m. Kendra's "screenshots" showed no
response from Robert. Kendra's last text to Robert read:
"[I]f you do not respond to this text letting me know
that you are getting her today for her five-week visitation
then I will assume you don[']t want her and you will
forfeit visitations this summer."
Kendra was then asked about Exhibit 13, which displayed the
same "screenshots" of text messages from
Robert's phone. Curiously, Exhibit 13 showed the same
text-message exchange, but with Robert's responses.
Within his responses, Robert said he would meet Kendra at
5:30. Kendra claimed she never received Robert's
responses, which was why she did not have his messages on her
Robert testified that he lived in Richton, Mississippi, and
worked at Georgia-Pacific Leaf River Cellulose. He worked
twelve-hour shifts, alternating between day and night. Robert
also stated that he was married and that his wife was
pregnant. He testified that Kendra texted him two weeks
before she planned to move to Louisiana. Robert informed her
that he did not think it was a good idea to move their
daughter away from all her friends and family. Robert also
stated that he had numerous family members in the area,
including an aunt, four cousins, and his in-laws.
Robert filed his complaint because Kendra had moved to
Louisiana, and Kendra was no longer cooperating with
visitation. Plaintiff's counsel showed Robert Exhibit 4,
a calendar of the child's missed school days at her new
school in Vermillion Parish from August 2017 to January 2018.