Andrew Gibson v. Ashley Gibson

• Court: Court of Appeals of Mississippi
• Decided: January 4, 2022
• Docket: 2020-CA-01377-COA
• Status: Published

Opinion

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

NO. 2020-CA-01377-COA

ANDREW GIBSON APPELLANT

v.

ASHLEY GIBSON APPELLEE

DATE OF JUDGMENT: 11/24/2020 TRIAL JUDGE: HON. MARGARET ALFONSO COURT FROM WHICH APPEALED: HARRISON COUNTY CHANCERY COURT, FIRST JUDICIAL DISTRICT ATTORNEY FOR APPELLANT: CAROLYN ANN McALISTER ATTORNEY FOR APPELLEE: ASHLEY GIBSON (PRO SE) NATURE OF THE CASE: CIVIL - DOMESTIC RELATIONS DISPOSITION: AFFIRMED - 01/04/2022 MOTION FOR REHEARING FILED: MANDATE ISSUED:

BEFORE BARNES, C.J., McDONALD AND LAWRENCE, JJ.

BARNES, C.J., FOR THE COURT:

¶1. Ashley and Andrew Gibson were married on August 28, 2011, and separated on or

about June 2, 2014. They had one minor child born of the marriage, “James,” born in 2011.1

On September 29, 2015, Ashley filed a complaint in the Harrison County Chancery Court,

seeking a divorce on the ground of habitual cruel and inhuman treatment or, in the

alternative, irreconcilable differences. She sought full legal and physical custody of the

child, as well as child support. An agreed temporary order was entered on December 8,

2015, giving Ashley temporary custody and setting forth supervised visitation between

1 A pseudonym has been used to protect the minor child’s identity. Andrew and James. Because Andrew was seeking treatment at the Heartland Rehabilitation

Facility in LaBelle, Missouri,2 his visitation was to occur while he was home during

Christmas of 2015, and the visitation was to be supervised by his sister, Marilyn Whitehead.

The chancery court also ordered Andrew to pay $50 in weekly child support.

¶2. On December 30, 2015, Andrew filed an answer and counterclaim seeking, in part,

primary physical custody of James. In spring of 2016, Ashley, a caregiver and housekeeper,

was arrested and charged with two counts of grand larceny for allegedly stealing from her

employers. On May 4, 2016, Andrew—newly released from the rehabilitation facility—filed

a petition seeking ex parte emergency custody of James on May 4, 2016. The petition noted

Ashley’s recent arrest and also alleged that Ashley had been using drugs and “living with a

member of the opposite sex.” The petition also claimed that Ashley had threatened to

abscond with the child. By order signed on May 4, 2016, the former chancellor over the

proceedings, Judge Sandy Steckler, gave temporary custody of James to Ethel Gibson,

Andrew’s mother and James’s paternal grandmother. The court’s order denied Ashley any

visitation and contained a restraining order against her.

¶3. Ashley filed a motion to set aside the order, denying the allegations of drug use, living

with another man, and any threats to abscond with James. A hearing on the motion was held

on May 6. The court set aside its prior order, noting that it contained errors. The court also

determined there was no reason “why [Ashley] shouldn’t have unfettered visitation with the

child.”

2 Andrew had two DUIs—one in 2012 and one in 2014. For the second one, he was incarcerated for six months and then released to the rehabilitation facility.

2 ¶4. Andrew testified at the June 14, 2016 hearing that Ashley had been “addicted” to

hydrocodone during their relationship. However, he had no personal knowledge whether she

still continued to take any prescription medication; he also admitted that any threats Ashley

made about absconding with James were made more than eighteen months prior to the

current proceedings. Andrew testified that during his time at the rehabilitation facility, he

had been given updates as to the child’s doctor’s visits and school progress. Andrew said

Ashley had agreed to put the child on ADHD medication, even though he had been against

doing so.

¶5. Ashley testified that she had her own residence and, despite accusations otherwise,

did not reside with her boyfriend, Ben Bosarge. She currently worked for Ben’s mother,

taking care of her home and pets. Ashley also cared for Ben’s three children (for whom he

has physical custody) while Ben was at work. Ashley admitted that she had taken

hydrocodone and Lortab prescribed to her after an automobile accident. But she said she

went to an outpatient clinic in 2015 “to get[] rid of all that” and denied taking more than what

was prescribed. She further alleged that Andrew had taken some of her medicine without

telling her. Ashley expressed appreciation for the help that Ethel and Marilyn had given her

while Andrew was in treatment. She also agreed that James “needs his daddy” and hoped

they could work together in scheduling visits with Andrew. When asked by the chancellor

about the pending felony charges against her, Ashley said she was advised by her defense

attorney to plead the Fifth Amendment.

¶6. Roscoe Phillips, Ashley’s father, testified that he and his wife were able to help take

3 care of James. Although Andrew had claimed Roscoe had an alcohol problem, Roscoe

denied this accusation, saying that he holds a commercial driver’s license and quit drinking

years ago. Ethel, Andrew’s mother, also testified that she had no medical issues that would

prevent her from taking care of the child. She expressed concern that Ashley’s moving to

different places over the last two years did not provide a stable home for James. Marilyn,

Andrew’s sister, testified that she had kept the child for approximately ninety days during

2015 and approximately thirty days in 2016, primarily on the weekends.

¶7. On May 20, 2016, the chancery court entered another temporary order, vacating the

prior order and (again) placing James in Ethel’s custody. Ashley was awarded visitation on

alternating weekends and weekly telephonic visitation. Because Andrew resided with Ethel,

the order did not address Andrew’s visitation. On November 16, 2016, the chancery court

entered a new temporary order nunc pro tunc to May 20, 2016, awarding Ashley and Andrew

alternating weekend visitation, daily telephonic visitation, and one weekday visit. The court

also ordered them to pay Ethel child support and to select a guardian ad litem (GAL).

¶8. After issues finding an available GAL, the chancery court eventually appointed

Vonder Bruegge as the GAL on January 27, 2017. On June 15, 2017, the court entered an

agreed temporary order nunc pro tunc to May 20, 2017, awarding Ashley three weeks of

summer visitation with James and both parents access to the child’s doctor’s appointments.

¶9. On July 10, 2018, Andrew filed an amended answer and counterclaim following

Ashley’s guilty plea, sentencing, and incarceration on two felony counts of grand larceny.

Following a hearing, the chancery court entered a temporary order on October 17, 2018, nunc

4 pro tunc to March 12, 2018. Because Andrew had recently been arrested for another DUI,

the order suspended Andrew’s overnight visitation. The temporary order also assessed

Andrew $1,114 in child-support arrearage.

¶10. Ethel, Marilyn, and Marilyn’s husband, William Whitehead, (the movants) filed a

motion seeking permanent guardianship of James. Andrew responded on February 7, 2019,

opposing the motion and asserting a counterclaim of contempt for interfering with his

relationship with the child. In her February 26 response, Ashley conditionally agreed that

James should remain in the movants’ care. Following a conference between counsel and the

GAL, the court entered an order on May 14, 2019, which noted that James had been under

the Whiteheads’ care for almost three years and that Ashley was expected to remain

incarcerated until October 2019.3 The court denied Ashley’s request to name additional

guardians. Andrew was awarded unsupervised visitation on Sundays for three hours and

was encouraged to participate in the child’s therapy and to cooperate with the GAL’s

investigation.

¶11. On October 14, 2019, Andrew filed a motion for substitution of the GAL, claiming

that the GAL “had not performed a home study” for Andrew and that he had “not been able

to make contact with the [GAL].” The movants joined Andrew’s motion, noting the GAL

had “apparently closed his law practice.” The chancery court entered an order on November

20, 2019, relieving the GAL from his duties. However, the court determined that no new

GAL would be appointed. The order also modified visitation between James and his parents.

3 It is noted in the record that Ashley was incarcerated from September 2017 to September 2019.

5 Specifically, upon her release from incarceration, Ashley would receive alternating Sunday

afternoons. Andrew was awarded alternating weekends from Saturday morning to Sunday

morning. The matter was set for trial.

¶12. On May 28, 2020, the parties consented to a divorce on the ground of irreconcilable

differences, and the court entered a final judgment approving the “written property settlement

agreement,” which waived any claim to alimony or support. No change was made to

guardianship or custody in the order.

¶13. A trial was held on September 10, 2020, and October 26, 2020, before a new

chancellor, Judge Margaret Alfonso. Ashley’s probation officer testified that Ashley was no

longer incarcerated and that she had “gone over and beyond to meet the requirements and

conditions of her parole” and was “an ideal probationer.” The probation officer also said

Ashley would likely complete her parole by the end of the following year.

¶14. Marilyn, Andrew’s sister, testified that the child had been living with her and her

husband since May 2016. She said James has ADHD and was “on the spectrum,” albeit

“highly functional.” James sees a psychiatrist every four to six weeks. Marilyn said that

Ashley had regularly attended the appointments with her since being released from custody;

Andrew had only gone a couple of times. James, now nine years old, attends public

elementary school and is in “gifted” classes. But Marilyn expressed that he needs “somebody

that can be involved in school [and] . . . that can stay on top of things[.]”

¶15. Marilyn stated that Andrew’s visitation with the child had been “sporadic,” as he had

gotten another DUI in 2017 and gone to work out of town for six to seven weeks at a time.

6 She also expressed concern about Andrew’s prior felonies from over ten years ago for

possession with intent and aggravated assault. Marilyn said Andrew had a business that sold

a drug, Kratom, which she explained “is a drug that has a lot of the same effects as

opiates[.]” Although she had not been to either parent’s home, Marilyn said that Ashley had

since married Ben Bosarge and that their family was nice. She also said Ashley had been

attending church regularly with them; Andrew attends another church. Marilyn

acknowledged that Ashley had come over “a couple of days a week” to help James with

homework when school was closed due to COVID and had been involved with James’s Boy

Scout troop. Marilyn opined that Ashley should have custody, particularly noting that the

mother “act[ed] more responsible” after serving her prison term. She did admit on cross-

examination that Ashley had not paid her any child support. Marilyn also said that James

loves both parents and enjoys his visits with them.

¶16. Ashley testified that she will be on probation for the next five years. Even while

incarcerated, she kept in touch with Marilyn and made sure she “never missed a Christmas

or birthday[.]” She also would record herself reading books and send those to James. Ashley

noted that she had taken care of James until he was approximately five years old. Ashley

now works as an executive assistant and has a family member experienced in special-needs

children that can pick up James from school when she is at work. She admitted that she had

been addicted to pain pills but she went through a recovery program during her incarceration.

¶17. Ashley’s husband, Ben, testified that he and Ashley had been seeing one another

“[s]ince 2014.” He has worked for a construction company for twenty years. Ben said

7 Ashley got “along quite well” with his ex-wife, but he has never had a conversation with

Andrew. He admitted that he had DUIs approximately twenty years prior.

¶18. Andrew testified that he worked at the Kratom Shack and said that Kratom is simply

“a plant that’s akin to the coffee plant” and has “pain relieving effects.” He said that his

relationship with his sister, Marilyn, was “nonexistent,” but agreed that James should still

have a relationship with her.

¶19. The chancery court entered its final judgment of custody and support on November

24, 2020. Thoroughly analyzing the applicable Albright factors,4 the court concluded that

Ashley “should be awarded paramount physical custody of [James] subject to the visitation

rights of Andrew.” The court ordered the parties to work with the Whiteheads and James’s

therapist in helping the child transition to the new custody arrangement during the upcoming

Christmas school break. Andrew was awarded visitation on the first, third, and fifth full

weekends of the month; visitation for various holidays was also outlined.

¶20. Andrew alleges on appeal that the chancery court’s determination of custody was

erroneous on the bases of the GAL’s failure to file a report and the court’s failure to appoint

a replacement GAL. Finding no error, we affirm.

4 The Albright factors are: (1) the age, health, and sex of the child; (2) “continuity of care”; (3) “parenting skills”; (4) the parties’ “willingness and capacity to provide primary child care”; (5) the parties’ employment responsibilities; (6) the parties’ “physical and mental health and age”; (7) the “emotional ties of parent and child”; (8) “moral fitness” of the parties; (9) “the home, school and community record of the child”; (10) the child’s preference, if the child is at least twelve years old; (11) the stability of the home environment and employment of each party; and (12) any “other factors relevant to the parent-child relationship” or the child’s best interest. Albright v. Albright, 437 So. 2d 1003, 1005 (Miss. 1983). Andrew makes no challenge to any specific finding in the court’s Albright analysis.

8 STANDARD OF REVIEW

¶21. A chancery court’s finding will not be disturbed on appeal “when supported by

substantial credible evidence unless the chancery court has abused its discretion, was

manifestly wrong [or] clearly erroneous,” or applied an erroneous legal standard. Hackler

v. Hackler, 296 So. 3d 773, 776 (¶12) (Miss. Ct. App. 2020) (quoting Forrest v. McCoy, 941

So. 2d 889, 890 (¶7) (Miss. Ct. App. 2006)).

DISCUSSION

¶22. Andrew’s first allegation of error concerns the GAL’s failure to submit a written

report. Ashley did not file an appellee’s brief. Generally, the “failure of an appellee to file

a brief is tantamount to confession of error and will be accepted as such unless the reviewing

court can say with confidence, after considering the record and brief of [the] appealing party,

that there was no error.” Rogillio v. Rogillio, 101 So. 3d 150, 153 (¶12) (Miss. 2012)

(quoting Dethlefs v. Beau Maison Dev. Corp., 458 So. 2d 714, 717 (Miss. 1984)). “However,

reversal is not automatic nor required.” Wade v. Wade, 967 So. 2d 682, 683 (¶4) (Miss. Ct.

App. 2007). “Where issues of child custody are involved, we are ‘compelled to review the

record,’ notwithstanding the appellee’s failure to file a brief.” Id. at 683-84 (¶4) (quoting

Mosley v. Atterberry, 819 So. 2d 1268, 1272 (¶17) (Miss. 2002)).

¶23. As noted, the chancery court appointed the GAL, Bruegge, in January 2017. The

GAL was “ordered and directed to file a written report with the [c]ourt, which may include

recommendations.” In Andrew’s February 7, 2019 response to the guardianship motion, he

specifically requested that the GAL “perform a home study of his home” and “report to this

9 [c]ourt as to why custody should not be placed with him or, in the alternative, why he cannot

have extended visitation[.]”

¶24. We note that this case does not involve allegations of abuse or neglect, which would

require appointment of a GAL under Mississippi Code Annotated section 93-5-23 (Rev.

2018). Therefore, the GAL did not have any statutory duty to file a written report. See Miss.

Code Ann. § 43-21-121 (Rev. 2015).

¶25. Although the GAL did not submit a written report or recommendation, the GAL did

testify before the chancery court at the June 29, 2017 hearing. Further, at the March 12, 2018

hearing, counsel for Andrew acknowledged that Andrew had “not been forthcoming with a

visit address for Mr. Vonder Bruegge, the GAL, to go to his home to make a home visit,” but

the address had been provided to the GAL just prior to that hearing. The GAL explained,

“And, Judge, I could have probably found his address, but my whole thing is, he doesn’t have

the kid so why should I go hunt down where he lives. . . . So I didn’t – when he wouldn’t

cooperate, I didn’t try to track him down.” (Emphasis added). The GAL had visited both

Ethel’s and Marilyn’s homes and had met with the child. The chancellor admonished

Andrew to work with the GAL and allow the GAL to visit Andrew’s residence “to see if it’s

suitable.” Although the GAL had been relieved of his duties at the time of trial, photographs

of Andrew’s home were introduced into evidence, as well as a parenting-class certificate.

Andrew also admitted that the GAL had performed a home visit in October 2018.

¶26. The Mississippi Supreme Court has held:

In Mississippi jurisprudence, the role of a [GAL] historically has not been limited to a particular set of responsibilities. In some cases, a [GAL] is

10 appointed as counsel for minor children or incompetents. . . . In others, a [GAL] may serve as an arm of the court—to investigate, find facts, and make an independent report to the court. The [GAL] may serve in a very limited purpose if the court finds such service necessary in the interest of justice. Furthermore, the [GAL’s] role at trial may vary depending on the needs of the particular case. . . . In some cases, the [GAL] may be called to testify, and in others, the role may be more limited.

S.G. v. D.C., 13 So. 3d 269, 280-81 (¶47) (Miss. 2009). In this instance, we find that the

GAL’s failure to submit a written report to the chancery court did not constitute reversible

error.

¶27. Andrew also alleges that the court’s decision not to appoint another GAL was an

abuse of discretion and constituted a failure “to fully protect the interests of the child.” We

find no merit to this claim. A court’s decision to appoint a GAL is discretionary in a custody

proceeding unless there have been charges of abuse or neglect. Kaiser v. Kaiser, 281 So. 3d

1136, 1141 (¶18) (Miss. Ct. App. 2019). As discussed, there were no such accusations

mandating the appointment of a GAL. This Court further held in Kaiser that because the

appointment of the GAL in that case was “discretionary,” the chancery court’s decision to

allow “the GAL to withdraw without submitting a final custody recommendation” did not

constitute error. Id. at 1142 (¶21).

¶28. Accordingly, upon review of the record, we find no error and affirm the final

judgment.

¶29. AFFIRMED.

CARLTON AND WILSON, P.JJ., GREENLEE, WESTBROOKS, McDONALD, LAWRENCE, McCARTY AND EMFINGER, JJ., CONCUR. SMITH, J., NOT PARTICIPATING.