Hill v. Mitchell

818 So. 2d 1221, 2002 WL 1056988
CourtCourt of Appeals of Mississippi
DecidedMay 28, 2002
Docket2001-CA-00682-COA
StatusPublished
Cited by12 cases

This text of 818 So. 2d 1221 (Hill v. Mitchell) 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
Hill v. Mitchell, 818 So. 2d 1221, 2002 WL 1056988 (Mich. Ct. App. 2002).

Opinion

818 So.2d 1221 (2002)

Retisha Jozette HILL, Appellant,
v.
Paul Steven MITCHELL, Omri Mitchell and Margaret Mitchell, Appellees.

No. 2001-CA-00682-COA.

Court of Appeals of Mississippi.

May 28, 2002.

*1222 Rex F. Sanderson, Houston, attorney for appellant.

Tommy Dexter Cadle, Booneville, attorney for appellees.

Before SOUTHWICK, P.J., THOMAS, and IRVING, JJ.

SOUTHWICK, P.J., for the court.

¶ 1. In 1988, the paternal grandparents of an infant were granted temporary custody by chancery court decree. Though a few pleadings were then filed, no other relief was pursued until eleven years later when the child's mother sought to regain custody. Custody was denied, but the mother was granted regular visitation. The mother appeals, arguing that she was entitled to custody as against the grandparents. We find no error and affirm.

FACTS

¶ 2. Paul Steven Mitchell and Retisha Jozette Hill were married in 1986. The couple's only child, Khristal, was born in February 1987. The parents were divorced that December. They agreed to share legal and physical custody. The divorce decree did not contain any provision for visitation or for either parent to provide child support to the other.

¶ 3. In August 1988, Paul and his parents, Omri and Margaret Mitchell, filed a motion for a temporary emergency order. The motion alleged that since the final decree of divorce Khristal had resided with these paternal grandparents. The Mitchells alleged that the child's mother had taken the girl from their home while under the influence of alcohol and perhaps an illegal substance. The Mitchells also alleged that Hill "threatened to run with the minor child," and that she was unstable and unable to care for Khristal.

¶ 4. That same day, a chancellor entered an emergency order finding the child to be in immediate danger. The Mitchells were granted temporary physical custody pending a final hearing. The mother was given visitation rights but was ordered not to remove the girl from the Mitchells' home.

¶ 5. In September 1988, the Mitchells filed a complaint seeking permanent legal and physical custody of their granddaughter and a restriction on Hill's rights to visitation only. Attached to the complaint was an affidavit from the child's father that he joined in his parents' complaint. Paul Mitchell's affidavit stated that in his "opinion that it is for the best interest of my child ... that she be placed under the exclusive care, custody, and control" of his parents. Hill answered and filed a cross-complaint seeking sole physical custody of Khristal. The Mitchells answered the cross-complaint and began discovery. What if anything then occurred in unknown. Three deposition notices were filed, the last one being filed in January 1989. Whether any depositions were taken cannot be determined.

¶ 6. There were no further proceedings until the child's mother filed a complaint for modification in December 1999. Hill alleged that for the past eleven years that her daughter "has not had adequate [or] reasonable contact" with her and that it *1223 would be in Khristal's best interest to reside with her. She requested sole physical custody or "specified and normal regular visitation with her daughter." In February 2000, an agreed order was entered granting Hill temporary visitation during these proceedings. In April, another agreed order was entered continuing the temporary visitation arrangement. The order also allowed Khristal to be evaluated by a mental health professional for the purpose of providing guidance to the girl's mother and to the Mitchells as to how they were to interact with one another and Khristal. There is considerable evidence of tension and ill will between the child's mother and paternal grandparents.

¶ 7. A hearing was held over three days in July and September 2000; the chancellor rendered a decision on March 26, 2001. The Mitchells were found to be providing Khristal with a "stable" and "proper environment." Hill's home "would not have been a proper home for raising a minor child ..." as Hill "admitted to a lifestyle that did not correspond with her testimony of [her] efforts to be a mother" to Khristal. Significantly, the chancellor found that Hill had "constructively abandoned" Khristal and had "delegated parenting to the Mitchells."

¶ 8. The chancellor found that Hill failed to demonstrate a material change in circumstances and also failed to demonstrate that it would be in Khristal's best interest to be removed from the Mitchells. The chancellor granted Hill regular visitation and access to Khristal's school records.

¶ 9. Hill's appeal was deflected here. Miss.Code Ann. § 9-4-3 (Supp.2001).

DISCUSSION

1. Legal standard for custody modification

¶ 10. Hill argues that she should not have been required to demonstrate a material change in circumstances since the entry of the temporary custody order. As the child's parent, Hill alleges that she is entitled to the presumption that Khristal's best interest would be served by placement in her custody over any third party. Sellers v. Sellers, 638 So.2d 481, 484 (Miss. 1994). Hill argues that burden was on the Mitchells to overcome this presumption by proving abandonment, or that her conduct was so immoral as to be detrimental to the child, or that she was otherwise unfit to have custody. Sellers, 638 So.2d at 484.

¶ 11. The findings of the chancellor were that Hill had "constructively abandoned" the child, that giving her custody would not be in the daughter's best interest, and that there was no material change of circumstances since the 1988 custody decree.

¶ 12. In an older but quite similar case, custody had for a dozen years been almost exclusively with the mother's sister. The child's mother then sought to gain custody from her sister. Governale v. Haley, 228 Miss. 271, 275-77, 87 So.2d 686, 687-88 (1956). Shortly after the child had been born in December 1943, she and her mother moved in with the mother's sister and her husband. The sister cared for the child. Governale, 228 Miss. at 275, 87 So.2d at 687. The child lived at the sister's home from the age of one until the age of twelve with the exception of a one-year period from July 1953 until July 1954 when the girl lived with her mother. Id. at 275-77, at 687-88.

¶ 13. In 1951, the mother filed a petition to obtain custody, but no hearing was ever held. Id. at 276, at 688. There was, however, an order entered stating the mother and sister agreed that the child would remain with the sister but the mother would retain the right of visitation. Id. At one point, the mother allowed two years to pass without seeing her child. The mother also contributed little financially *1224 towards the care of the child. The child testified at trial that she did not consider the place where her natural mother lived to be her "home." Id. at 277, 87 So.2d at 688. The parents were divorced in 1945, and there is no mention of the father being involved in the custody dispute.

¶ 14. The Governale chancellor denied the mother's custody petition, which was then affirmed on appeal. The "natural right of the parents to custody will prevail" over the rights of those having had custody of a child for an extended period of time, assuming the parents are fit and have not abandoned the child. Governale, 228 Miss. at 278-79, 87 So.2d at 689.

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Cite This Page — Counsel Stack

Bluebook (online)
818 So. 2d 1221, 2002 WL 1056988, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hill-v-mitchell-missctapp-2002.