Givens v. Nicholson

878 So. 2d 1073, 2004 Miss. App. LEXIS 703, 2004 WL 1615296
CourtCourt of Appeals of Mississippi
DecidedJuly 20, 2004
DocketNo. 2002-CA-01582-COA
StatusPublished
Cited by4 cases

This text of 878 So. 2d 1073 (Givens v. Nicholson) 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
Givens v. Nicholson, 878 So. 2d 1073, 2004 Miss. App. LEXIS 703, 2004 WL 1615296 (Mich. Ct. App. 2004).

Opinion

[1074]*1074MODIFIED OPINION ON MOTION FOR REHEARING

LEE, J.,

for the Court.

¶ 1. Catherine Givens’ motion for rehearing is granted. The original opinion of this Court is withdrawn and the following opinion substituted therefor.

¶ 2. Catherine Givens appealed from an order of the Union County Chancery Court modifying visitation to include a monthly visit with Todd Nicholson’s parents who reside in Memphis. Givens appealed, arguing that the chancery court judge abused his discretion in altering the visitation schedule to include grandparent visitation. In our original opinion handed down March 2, 2004, this Court affirmed the trial court, finding that no visitation had been conferred upon the grandparents. In her motion for rehearing, Givens correctly points out that this Court misapprehended Mississippi law in not requiring the chancellor to make specific findings of fact when modifying the visitation to include time with Nicholson’s parents. We hold that the chancellor’s order requiring Givens to surrender her son once a month to Nicholson’s parents constitutes grandparent visitation; therefore, the chancellor erred in granting the visitation.

FACTS AND PROCEDURAL HISTORY

¶ 3. Givens and Nicholson were granted a divorce by the Circuit Court of Shelby County, Tennessee on December 8, 1993. Givens was awarded primary custody of their minor child, Todd Aaron Nicholson, born on December 19, 1990. Nicholson was granted visitation and ordered to pay child support to Givens.

¶ 4. Aaron has lived with his mother and older half-sister in a number of residences since the divorce. The family first lived in Bartlett, Tennessee, where they were residing when Givens and Nicholson divorced.

¶ 5. When Aaron was three, he began medicated treatment for attention deficient hyperactivity disorder. While in preschool, Aaron began to exhibit violent behavior, began having night terrors, and suffered from depression. After Aaron’s behavioral problems continued in preschool and kindergarten, Givens decided to move the family to Mumford, Tennessee where Aaron completed first grade. In the middle of his second year in Mumford, Aaron began to have serious behavioral problems in school and his grades fell dramatically. By the end of Aaron’s third grade year, Givens decided to move to Vicksburg. Givens married again and the blended family of Givens and her two children, her new husband, and his son did, in fact, move to Vicksburg. After only nine months in Vicksburg, the family moved to New Albany. In a period of three years, Aaron lived in four different cities.

¶ 6. In the fall of 2001, while in fifth grade at New Albany Middle School, Aaron drew a picture of his classmate with an arrow through his head that said, “you are dead.” After this incident Aaron was admitted to Parkwood Hospital in the pre-adolescent psychiatric unit, and remained there about two weeks. During his stay at Parkwood, Aaron was diagnosed as having bipolar disorder, with symptoms of attention deficit disorder with hyperactivity.

¶ 7. Because Aaron had extreme difficulty getting along with other children, upon his discharge from the hospital, his doctors advised Givens that she should home school Aaron. The doctors felt that if Aaron, who is dyslexic, could learn to read at his age level it would help curb his frustration and lower his anxiety. In addition to being home schooled, Aaron saw a reading tutor three times a week.

[1075]*1075¶ 8. Nicholson moved to Connecticut before the divorce was finalized and has since remained there. Nicholson has also remarried but has no other children. He is a senior customer service agent with Federal Express and has been employed there for twelve years. Since the divorce, Nicholson has maintained regular contact with Aaron, calling him on Sunday nights. However, he has only seen Aaron an average of three times per year since the divorce. Nicholson received about three weeks of vacation per year and spent the majority of that time in Memphis visiting with his parents, where he would also see Aaron on the weekends.

¶ 9. Prior to September 11, 2001, as an employee of Federal Express, Nicholson was able to “jump seat” from Connecticut, to Memphis, Tennessee free of charge. After September 11, the Federal Aviation Agency ended all jump seating.

¶ 10. On October 12, 2001, Nicholson filed a petition in the Chancery Court of Union County seeking permanent custody of Aaron and the discontinuation of child support paid to Givens. Givens answered the petition and filed for modification of Nicholson’s summer visitation and for an increase in child support paid by Nicholson. Following a hearing on February 14, 2002, the chancellor ordered that Aaron reside with his father in the State of Connecticut during the summer months of 2002, and held all other matters in abeyance. Nicholson’s parents were not a party to the litigation.

¶ 11. On August 1, 2002, a second hearing was conducted in the matter. The chancellor’s opinion and judgment entered on August 19, 2002, denied Nicholson’s request to modify custody and Givens’ request for an increase in child support. However, the chancellor modified visitation. Included in this order was the following excerpt regarding a monthly visit with Nicholson’s parents.

This Court further finds that the prior Orders of this Court are hereby modified in that the Mother shall deliver the minor child to the home of the paternal grandparents at 7:00 p.m. on the second (2nd) Friday of each month and the child shall be returned to the home of the Mother at 6:00 p.m. on the following Sunday in order to give the Father a definite monthly visitation period to see the child if he is able to travel to Memphis and to allow the child the opportunity to maintain ties with his extended family when the Father is unable to travel to Memphis.

ISSUES AND ANALYSIS

I. DID THE CHANCELLOR CONFER VISITATION TO THE GRANDPARENTS?

¶ 12. The first issue to be determined is whether the chancellor effectively granted the grandparents visitation with the child. This Court agrees with Givens that the chancellor granted the grandparents visitation. The effect of the chancellor’s ruling is that on the second Friday of each month, Givens must transport her son to the paternal grandparents’ house in Memphis. The last clause of the paragraph indicates that the purpose of this monthly trip to Memphis is to grant to the child an opportunity to interact with his extended family “when the Father is unable to travel to Memphis.” The inclusion of this clause leads this Court to the understanding that the monthly Memphis visits will occur by order of the court regardless of Nicholson’s ability to join his family in Memphis.

¶ 13. Visitation rights afford the noncustodial parent the opportunity to maintain a healthy relationship with his or her child. Porter v. Porter, 766 So.2d 55, 58

[1076]*1076(¶ 13) (Miss.Ct.App.2000). Visitation allows interaction between the child and the non-custodial parent, and allows the noncustodial parent to exercise his rights as a parent. In Cox v. Moulds, 490 So.2d 866 (Miss.1986), the supreme court discussed the inherent authority a non-custodial parent possesses when exercising visitation.

We are afraid that by labeling the rights of the non-custodial parent “visitation” we imply an inordinate subordination of those rights in quality.

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Bluebook (online)
878 So. 2d 1073, 2004 Miss. App. LEXIS 703, 2004 WL 1615296, Counsel Stack Legal Research, https://law.counselstack.com/opinion/givens-v-nicholson-missctapp-2004.