Hls v. Rsr

949 So. 2d 794, 2006 Miss. App. LEXIS 763, 2006 WL 2947731
CourtCourt of Appeals of Mississippi
DecidedOctober 17, 2006
Docket2005-CA-01144-COA
StatusPublished

This text of 949 So. 2d 794 (Hls v. Rsr) 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
Hls v. Rsr, 949 So. 2d 794, 2006 Miss. App. LEXIS 763, 2006 WL 2947731 (Mich. Ct. App. 2006).

Opinion

949 So.2d 794 (2006)

H.L.S., Appellant,
v.
R.S.R., Appellee.

No. 2005-CA-01144-COA.

Court of Appeals of Mississippi.

October 17, 2006.

*796 Gerald W. Chatham, Sr., Hernando, attorney for appellant.

Steven Glen Roberts, attorneys for appellee.

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

ISHEE, J., for the Court.

¶ 1. On February 8, 2005, the Chancery Court of Tate County entered an order denying H.L.S.'s,[1] petition for modification and temporary restraining order. The court denied R.S.R.'s cross-petition for modification of custody, but granted her request for modification of visitation and her request for modification of the divorce decree. The court also cited H.L.S. with contempt for willful denial of R.S.R.'s visitation rights with the parties' minor child, S.N.S. Aggrieved by the judgment, H.L.S. appeals. Finding reversible error in part, we affirm in part and reverse and remand in part.

FACTS

¶ 2. H.L.S., the father, and R.S.R., the mother, were married on June 4, 1993. During the course of their marriage, the parties had one child, a daughter named S.N.S., who was born on June 28, 1997. The parties were originally divorced in Tate County, Mississippi on November 20, 2001. Due to a technical error, however, the original judgment of divorce was set aside on December 20, 2002. On March 21, 2003, the Chancery Court of Tate County entered a second judgment of divorce awarding full care, custody, and control of the minor child to H.L.S.R.S.R. was awarded reasonable visitation every first and third weekend from Friday at 6 p.m. to Sunday at 6 p.m., as well as Mother's Day and six weeks during the summer. The court awarded H.L.S. with visitation every Father's Day. Regarding each parties' birthday, and the birthday of their child, the court dictated that "[e]ach parent shall have custody of [S.N.S.] for at least three (3) hours on each of their respective birthdays, regardless of the weekend visitations set out above." The court further granted the parties alternating holidays from 7 a.m. to 7 p.m., including New Year's Day, Easter, Memorial Day, July 4th, Labor Day, and Thanksgiving. The parties were also awarded alternating Christmas visitations, however the exact timing was different. On the odd year, H.L.S. was to have S.N.S. from 1 p.m. on December 24 until 3 p.m. on December 25, and then again on December 28 at 1 p.m. until 1 p.m. on January 1. On the even year, H.L.S. was to have S.N.S. at 3 p.m. on December 25 until 3 p.m. on December 30.

¶ 3. On June 29, 2004, H.L.S. filed a petition for modification and for a temporary restraining order alleging that a material change in circumstances affecting the best interest of the child had occurred since the entry of the divorce. Specifically, *797 H.L.S. alleged that R.S.R. was unfit to have reasonable visitation with S.N.S. because R.S.R.'s "abnormal behavior" caused S.N.S. to suffer from "an adjustment disorder." Citing concern for S.N.S.'s safety and welfare, H.L.S. urged the court to grant a temporary restraining order and to suspend further non-supervised visitation.[2]

¶ 4. On July 8, 2004, R.S.R. filed her answer to H.L.S's petition for modification and temporary restraining order. She admitted that a material change in circumstances adverse to the best interest of the child had occurred, yet she asserted that H.L.S. was the cause of the material adverse change, as he denied R.S.R. summer visitation with S.N.S. Thus, R.S.R.'s answer also included a cross-petition for contempt and modification of the former decree of divorce. In her cross-petition, R.S.R. requested that the court cite H.L.S. with contempt for his failure to comply with the visitation schedule and order him to pay her attorney's fees. R.S.R. further requested the court either to grant her full custody of S.N.S. or to modify the visitation schedule, and to order H.L.S. to maintain medical insurance for S.N.S.

¶ 5. On August 17, 2004, the Chancery Court of Tate County entered an order enjoining H.L.S. from denying R.S.R. summer visitation. The court further ordered that the child shall be with R.S.R. or have adult supervision during the visitation. The court also found that R.S.R. would not be restricted to H.L.S.'s choice of daycare providers, but that she should be allowed to use her judgment as to appropriate adult supervision of the child during visitation.

¶ 6. On February 8, 2005, after a hearing, the court entered an order denying H.L.S.'s petition for modification and temporary restraining order. The court determined that the "alleged kissing incident," as well as other evidence put on by H.L.S., did "not rise to the level required to supervise or restrict visitation." Regarding R.S.R.'s request for modification of custody, the court determined that H.L.S.'s interference with visitation did not adversely affect the welfare of S.N.S. Nonetheless, the court modified the visitation schedule by awarding R.S.R. alternating spring breaks and Halloweens, as well as every Christmas Day at noon until New Year's Eve at 7 p.m. The court also found a material change in circumstances and granted R.S.R.'s request for modification of the divorce decree. The court ordered H.L.S. to maintain medical insurance for S.N.S. and both parties to split equally all expenses not covered by the medical insurance. The court also ordered the parties to alternate the dependency tax exemption. Regarding H.L.S.'s interference with visitation, the court determined that, although some of H.L.S.'s denials of visitation were for the child's protection, some of the denials were willful. Consequently, the court cited H.L.S. with contempt and ordered him to pay R.S.R.'s attorney's fees in the amount of $1,000.

¶ 7. Aggrieved by the judgment, H.L.S. appeals. He presents the following issues for this Court's review:

I. Whether the court erred in modifying visitation.
II. Whether the court erred in modifying the dependency exemption.
III. Whether the court should have ordered R.S.R. to reimburse H.L.S. for the $1,200 spent for *798 psychological examination by Dr. Nichols.
IV. Whether the court erred in not restricting R.S.R.'s visitation.
V. Whether the court erred in citing H.L.S. with contempt and ordering him to pay $1,000 in attorney's fees.
VI. Whether the court erred in requiring H.L.S. to provide health insurance.
VII. Whether R.S.R. is credible.

STANDARD OF REVIEW

¶ 8. Our review of domestic relations matters is limited. Carrow v. Carrow, 741 So.2d 200, 202(¶ 9) (Miss.1999). The chancellor's findings of fact will not be disturbed on appeal if they are supported by substantial credible evidence. Pacheco v. Pacheco, 770 So.2d 1007, 1009(¶ 8) (Miss. Ct.App.2000) (citing Dunaway v. Busbin, 498 So.2d 1218, 1221 (Miss.1986)). We will not reverse the decision of a chancery court unless the chancellor abused his or her discretion, was manifestly in error, or applied an erroneous legal standard. Carrow, 741 So.2d at 202(¶ 9) (citing Turpin v. Turpin, 699 So.2d 560, 564 (¶ 15) (Miss. 1997)).

ISSUES AND ANALYSIS

I. Whether the court erred in modifying visitation.

¶ 9. When modification of visitation is at issue, the material change in circumstances test is not applicable because the court is not being asked to modify the permanent custody of the child. Haddon v. Haddon, 806 So.2d 1017, 1019(¶ 12) (Miss.2000) (citing Cox v. Moulds,

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Bluebook (online)
949 So. 2d 794, 2006 Miss. App. LEXIS 763, 2006 WL 2947731, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hls-v-rsr-missctapp-2006.