Faris v. Jernigan

939 So. 2d 835, 2006 WL 2865581
CourtCourt of Appeals of Mississippi
DecidedOctober 10, 2006
Docket2004-CA-02548-COA
StatusPublished
Cited by7 cases

This text of 939 So. 2d 835 (Faris v. Jernigan) is published on Counsel Stack Legal Research, covering Court of Appeals of Mississippi primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Faris v. Jernigan, 939 So. 2d 835, 2006 WL 2865581 (Mich. Ct. App. 2006).

Opinion

939 So.2d 835 (2006)

Kelly R. FARIS, Appellant
v.
Jay L. JERNIGAN, Appellee.

No. 2004-CA-02548-COA.

Court of Appeals of Mississippi.

October 10, 2006.

*837 S. Christopher Farris, attorney for appellant.

Anthony Sakalarios, Hattiesburg, attorney for appellee.

Before MYERS, P.J., BARNES AND ISHEE, JJ.

MYERS, P.J., for the Court.

¶ 1. On November 23, 2004, the Chancery Court of Forrest County issued an order requiring Kelly R. Faris to post a $40,000 ne exeat bond before she could leave the jurisdiction of the State of Mississippi with her daughter for overnight visitation. The chancellor further ordered Faris to pay $40,000 in attorneys' fees and expenses incurred by Jay Jernigan as a result of the protracted litigation instigated by the former. Aggrieved by the chancellor's ruling, Faris appeals raising the following issues:

I. WHETHER THE CHANCELLOR ERRED IN RESTRICTING VISITATION WITH THE MINOR CHILD TO MISSISSIPPI UNLESS FARIS POSTED A NE EXEAT BOND.
II. WHETHER THE CHANCELLOR ERRED IN AWARDING ATTORNEYS' FEES THAT WERE NOT PROPERLY ITEMIZED, CORRECT OR REASONABLE, AND INVOLVED AN AWARD FOR ATTORNEYS' FEES INCURRED IN LITIGATION IN ANOTHER STATE.

¶ 2. Finding no error, we affirm both the restriction on visitation to the State of Mississippi unless Faris posts a $40,000 ne exeat bond and the award of attorneys' fees and expenses in favor of Jernigan in the amount of $40,000.

STATEMENT OF THE FACTS

¶ 3. Kelly Faris and Jay Jernigan were married in March 1993, and their daughter, Sophie, was born in December of that same year. Faris and Jernigan separated in April 1994, and were granted a divorce in January 1995. Primary custody of their minor daughter was originally awarded to Faris, but in November 1998, Jernigan filed a petition to modify custody. On May 25, 2000, the chancellor entered an order permanently reversing primary custody from Faris to Jernigan. Faris appealed the May 25, 2000 reversal of custody to this Court; however, in Jernigan v. Jernigan, 830 So.2d 651 (Miss.Ct.App.2002), we affirmed the chancellor's ruling. This Court upheld the chancellor's findings of fact that Faris made repeated and unfounded allegations against Jernigan of sexual abuse, Faris made material misrepresentations in court and to the Mississippi Department of Human Services, and Faris moved Sophie from one home to another at least five times between the time the divorce was entered and the custody modification hearing. The chancellor found, and this Court concurred, that when cumulatively considered, these facts constituted a material change in the circumstances of the custodial home, the change was adverse *838 to the child, and therefore sufficient to support a modification of primary custody in favor of Jernigan. Id. at 652(¶ 3).

¶ 4. Following the modification of custody, Faris relocated to Atlanta, Georgia. Aware that visitation with her mother would require Sophie to leave the jurisdiction of the State of Mississippi, the chancellor's order modifying custody required Faris to post a $5,000 ne exeat bond. Under the order, Jernigan was to make Sophie available for visitation with Faris by placing Sophie on a plane at the Gulfport airport, bound for Atlanta, Georgia. Faris was to return Sophie to Jernigan at the end of her visitation period in the same manner. On December 1, 2000, in accordance with the visitation order, Jernigan arranged for Sophie to fly to Atlanta for a weekend visit with her mother. Faris, however, failed to return Sophie to Gulfport, as she was required to do. On December 13, 2000, the Chancery Court of Forrest County, Mississippi, entered a contempt order against Faris for wilful violation of the custody and visitation order, and ordered the $5,000 ne exeat bond forfeited to Jernigan.

¶ 5. Faris voluntarily surrendered to Georgia officials, but not before having Sophie examined by a psychologist and a nurse, filing a complaint with Georgia's Department of Family & Children Services, alleging Jernigan sexually abused and molested their daughter, and placing Sophie under the supervision of the DeKalb County Juvenile Court in Atlanta, Georgia, via a deprivation petition. Georgia officials returned Faris to Mississippi where she was incarcerated on the criminal contempt charge from March until August 2001. Faris' incarceration was challenged, but upheld by the Mississippi Supreme Court in Isom v. Jernigan, 840 So.2d 104 (Miss.2003). Sophie, however, remained in the custody of the DeKalb County Juvenile Court from December 2000 until January 2002. While Sophie was wrongfully being held under the supervision of the DeKalb County Juvenile Court, Jernigan was required to pay monthly child support, and incurred significant travel and lodging expenses visiting his daughter. Jernigan incurred even greater expense defending against the litigation in Georgia, and prosecuting the contempt action in Mississippi. Sophie was finally returned to Mississippi and to her father, in January 2002, when the Georgia Court of Appeals vacated the order of the DeKalb County Juvenile Court. The Georgia Court of Appeals found that Mississippi, not Georgia, should have retained jurisdiction over the matter pursuant to the Uniform Child Custody Jurisdiction Act and the Parental Kidnaping Prevention Act. In the Interest of J.S.J., 253 Ga.App. 174, 558 S.E.2d 763 (Ga.Ct. App.2002).

¶ 6. At issue in Faris' current appeal is the chancellor's visitation order restricting Faris' visitation with Sophie to the State of Mississippi, unless Faris posts a $40,000 ne exeat bond, and award of attorneys' fees and expenses to Jernigan also in the amount of $40,000. Since Faris' release in August 2001, the chancellor has allowed Faris restricted visitation with Sophie. This visitation has been periodically amended to allow less restrictive and more frequent visitations, including overnight visitations within the State of Mississippi. On November, 23, 2004, the chancellor issued an order ruling that Faris could not take Sophie out of the jurisdictional boundaries of the State of Mississippi unless she posted a $40,000 ne exeat bond. The chancellor further ordered Faris to pay $40,000 in attorneys' fees and expenses incurred by Jernigan in the litigation that resulted from Faris' violation of the previous visitation order. Faris, who now lives in New Orleans, Louisiana, appeals the *839 chancellor's imposition of the $40,000 ne exeat bond and assessment of attorneys' fees.

LEGAL ANALYSIS

I. WHETHER THE CHANCELLOR ERRED IN RESTRICTING VISITATION WITH THE MINOR CHILD TO MISSISSIPPI UNLESS FARIS POSTED A NE EXEAT BOND.

¶ 7. Faris argues that the chancellor erred in requiring her to post a $40,000 ne exeat bond. She asserts that she cannot financially comply with the restriction and that there is no justification for such a restriction. Jernigan argues that the bond is reasonable, in light of the fact that Faris has previously taken Sophie beyond the jurisdictional boundaries of the State of Mississippi, then refused to return her in violation of a previous visitation order. Jernigan further argues that the bond is reasonable because Faris forfeited a $5,000 ne exeat bond that she was required to post with the court under the previous visitation order, and that amount was grossly insufficient to cover the legal fees and expenses incurred as a result of Faris' contempt.

STANDARD OF REVIEW

¶ 8. The chancellor is granted broad discretion in deciding issues pertaining to visitation. Rogers v. Morin, 791 So.2d 815, 820(¶ 9) (Miss.2001).

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Cite This Page — Counsel Stack

Bluebook (online)
939 So. 2d 835, 2006 WL 2865581, Counsel Stack Legal Research, https://law.counselstack.com/opinion/faris-v-jernigan-missctapp-2006.