Witters v. Witters

864 So. 2d 999, 2004 WL 117953
CourtCourt of Appeals of Mississippi
DecidedJanuary 27, 2004
Docket2002-CA-00681-COA
StatusPublished
Cited by15 cases

This text of 864 So. 2d 999 (Witters v. Witters) 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
Witters v. Witters, 864 So. 2d 999, 2004 WL 117953 (Mich. Ct. App. 2004).

Opinion

864 So.2d 999 (2004)

Philip Edward WITTERS, Appellant,
v.
Tara L. WITTERS, Appellee.

No. 2002-CA-00681-COA.

Court of Appeals of Mississippi.

January 27, 2004.

*1000 Travis T. Vance, Vicksburg, attorney for appellant.

William R. Wright, Jackson, W. Benton Gregg, attorneys for appellee.

EN BANC.

IRVING, J., for the Court.

¶ 1. Phillip Edward Witters and Tara L. Witters were divorced in August 2001. Thereafter, Tara filed a petition to modify the visitation schedule and a petition for citation of contempt against Phillip alleging failure to pay child support and mortgage payments. A final judgment on all outstanding motions was entered in March 2002. Aggrieved by the chancellor's decision, Phillip has appealed, asserting that the court erred: (1) in placing restrictions on his visitation with his child in the absence of a finding that these restrictions were necessary to avoid harm to the child, (2) in finding that the method of transportation of the minor child for the visitation schedule was not working, (3) in finding him in contempt of court, and (4) in ordering him to pay Tara $500 in attorney fees plus court costs in the contempt action.

¶ 2. We find merit in issues one and two; therefore, we reverse and render in part and affirm in part.

FACTS

¶ 3. Phillip Edward Witters and Tara L. Witters were divorced on the ground of irreconcilable differences in August 2001. Phillip was ordered to pay child support in the amount of $566 per month and mortgage payments on the marital home in the amount of $1039 per month. The chancellor granted Phillip and Tara joint legal custody of the couple's two-year-old child Juliana, with Tara having physical custody and Phillip having reasonable visitation. Since Tara and the child had moved to Michigan prior to the divorce, and Phillip continued to live in Mississippi, the parties agreed to a seven-day period of monthly visitation that would remain in effect until Juliana entered kindergarten, at which time the visitation would then become alternate weekends. The relevant visitation provision provided that Phillip would have visitation with the child beginning at 9:00 a.m. on the first Saturday of each month and continuing until 9:00 a.m. on the following Saturday. Phillip agreed to give Tara at least seven days' written notice when he intended not to exercise his visitation. He also agreed to remain with Juliana during all visitation periods. Both parents agreed to notify each other if the child was taken out of state during periods of custody and visitation.

*1001 ¶ 4. Tara and Juliana moved to Michigan in November of 2000. Phillip started receiving weekend visitation in March 2001 pursuant to a temporary court order and traveled to Michigan every other weekend to visit with the child from 9:00 a.m. Saturday morning to 4:00 p.m. Sunday afternoon. Phillip testified that he never missed a scheduled visitation. After the judgment of divorce was entered, Phillip began exercising his seven-day monthly visitation which had been awarded to him in the judgment of divorce. During Phillip's September 2001 visit, he picked up Juliana and informed Tara that he planned to take the child to Mississippi instead of remaining in Michigan as he had done on prior occasions. Phillip testified that since he did not know that he would be driving back to Mississippi with the child to spend his visitation week, he only gave Tara fifteen minutes' notice. Phillip stated that he and the child drove instead of flying since airline flights were cancelled throughout the United States due to the terrorist attacks of September 11. In October, Phillip again drove to Michigan to pick up his daughter and then drove back to Mississippi where he exercised his one week visitation with the child. On both occasions, he returned the child to her mother by airplane. In November, Phillip exercised his visitation by remaining in Michigan with the child at his sister's home. However, in December and the following January, Phillip again exercised his seven-day monthly visitation by driving to Michigan to pick up Juliana and returning the child by car at the end of the visitation period.

¶ 5. In response, Tara filed a motion for injunctive relief seeking to temporarily stop Phillip from driving back and forth from Michigan to Mississippi with the child. She then filed a petition for modification requesting that the court modify the visitation provision in the judgment of divorce. Tara alleged that Phillip's actions were in willful disregard for Juliana's safety and welfare and that he had created a material change in circumstances that was not in the child's best interest. The court began hearing testimony on the two motions on October 19, but the hearing was continued until a later date.[1] Although resolution of the motions for injunctive relief and modification were still pending in Mississippi, Tara filed an emergency motion with the court in Michigan on November 1, alleging child abuse and neglect of Juliana during Phillip's visitation with the child. The Michigan court refused to exercise jurisdiction over the matter. The hearing in Mississippi on the motion for injunctive relief[2] was resumed on November 7.

¶ 6. On November 26, Tara filed a petition for citation of contempt, alleging that Phillip had failed to pay court-ordered child support and mortgage payments. Phillip answered and asserted that since the entering of the judgment of divorce, he had been required to spend large sums of money as a result of appearing in court on numerous occasions to defend his exercise of visitation. He consequently asked the court to consider this financial burden placed on him. On December 19, the court *1002 again resumed hearing testimony on Tara's motions for modification and contempt. After yet another continuance, the trial was finally concluded on January 31, 2002.

¶ 7. At the conclusion of the evidence, the chancellor found that the visitation schedule should be modified since the current method of transportation was not working. The chancellor further found that it was not in the child's best interest to be transported by automobile by one adult from Michigan to Mississippi on a monthly basis and ordered that more than one adult be in the automobile when traveling with the child between the two states. The chancellor also found Phillip in contempt for failure to timely pay his child support and mortgage payments. Tara was awarded $500 in attorney fees plus court costs because the court found that she did not have the financial ability to pay her attorney.

¶ 8. Additional facts will be related during our discussion of the issues.

ANALYSIS AND DISCUSSION OF THE ISSUES

Standard of Review

¶ 9. This Court's scope of review in domestic relation cases is strictly limited. Brawdy v. Howell, 841 So.2d 1175, 1178(¶ 8) (Miss.Ct.App.2003). We will not disturb the findings of a chancellor unless we find an abuse of discretion, an erroneous application of law, or a manifest error. Id. Thus, if we find substantial evidence in the record to support the chancellor's findings, we will not reverse. Id.

(1) Restriction of Visitation

¶ 10. Phillip first argues that the court erred in placing restrictions on his visitation with Juliana without a finding that these restrictions were necessary to avoid harm to the child. He maintains that the court erred further in finding that the method of transportation of the child was not working. For the sake of clarity, issues one and two will be treated as a single issue.

¶ 11.

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Cite This Page — Counsel Stack

Bluebook (online)
864 So. 2d 999, 2004 WL 117953, Counsel Stack Legal Research, https://law.counselstack.com/opinion/witters-v-witters-missctapp-2004.