Adam Heisinger v. Priscilla Riley , 243 So. 3d 248 ( 2018 )

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2016-CA-01718-COA
ADAM HEISINGER APPELLANT/
CROSS-APPELLEE
v.
PRISCILLA RILEY APPELLEE/
CROSS-APPELLANT
DATE OF JUDGMENT: 11/14/2016
TRIAL JUDGE: HON. JERRY G. MASON
COURT FROM WHICH APPEALED: LAUDERDALE COUNTY CHANCERY
COURT
ATTORNEY FOR APPELLANT: J. DOUGLAS FORD
ATTORNEYS FOR APPELLEE: LESLIE C. GATES
WILLIAM STACY KELLUM III
NATURE OF THE CASE: CIVIL - CUSTODY
DISPOSITION: ON DIRECT APPEAL: AFFIRMED IN
PART; REVERSED AND REMANDED IN
PART. ON CROSS-APPEAL: AFFIRMED IN
PART; REVERSED AND REMANDED IN
PART - 04/03/2018
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
BEFORE IRVING, P.J., CARLTON AND WILSON, JJ.
WILSON, J., FOR THE COURT:
¶1. Adam Heisinger and Priscilla Riley have a daughter, B.H., who was born in Iowa in
2012. In September 2013, the Iowa District Court for Muscatine County awarded Priscilla
and Adam joint legal custody of B.H., awarded Priscilla physical custody, granted Adam
visitation, and ordered Adam to pay child support. Priscilla later moved to Mississippi, and
in 2015 she petitioned the Lauderdale County Chancery Court to enroll the Iowa judgment,
to suspend and/or modify Adam’s visitation, and to increase Adam’s child support. Adam
answered and filed a counterclaim to enforce the Iowa judgment, to modify custody, and for
contempt. A guardian ad litem was appointed based on Priscilla’s allegations that Adam had
abused or neglected B.H. during his visitation.
¶2. After a trial, the chancellor found that Adam had proven a material change in
circumstances, but he denied Adam’s petition to modify custody because he found that
granting Adam physical custody would not be in B.H.’s best interest. The chancellor also
denied Priscilla’s petition to modify visitation and increase child support. Finally, the
chancellor found Priscilla in contempt for violating prior court orders regarding Adam’s
visitation, and he awarded Adam attorney’s fees.
¶3. On appeal, Adam argues that the chancellor erred by denying his petition to modify
custody. Adam also argues that the chancellor’s award of attorney’s fees was insufficient,
and he requests additional attorney’s fees for the appeal. On cross-appeal, Priscilla argues
that the chancellor erred by finding her in contempt, by denying her request to increase child
support, and by finding that she “did not meet her burden of proof with respect to [her
allegations of] neglect and abuse.”1
¶4. In Adam’s appeal, we affirm the chancellor’s the award of attorney’s fees, we award
additional attorney’s fees for the appeal, and we reverse and remand as to custody for further
1
Priscilla also cross-appealed the chancellor’s denial of her request to clarify
visitation. However, while this appeal was pending, the chancery court entered an agreed
order addressing several issues, including Adam’s visitation schedule. This Court directed
the parties to address whether the agreed order had rendered moot any issues in this appeal
or cross-appeal, and Priscilla responded that the visitation issue is now moot.
2
proceedings consistent with this opinion, including a new Albright2 analysis. On cross-
appeal, we affirm the chancellor’s findings that Priscilla was in contempt and that she had
not proven her allegations of neglect and abuse. However, we reverse and remand on the
issue of child support because the chancellor should have applied Mississippi law, rather than
Iowa law, to Priscilla’s petition to increase the amount of support.
FACTS AND PROCEDURAL HISTORY
¶5. Adam and Priscilla met while both were in the military and stationed in Virginia.
Adam was an Air Force flight surgeon, and Priscilla was in the Navy. In 2011, Priscilla
discovered she was pregnant and believed that Adam might be the father. Priscilla later
moved to Iowa, and B.H. was born on January 17, 2012. Adam was deployed overseas at the
time of B.H.’s birth. He returned to the United States in May 2012 and petitioned the Iowa
District Court for Muscatine County for DNA testing and a determination of paternity and
custody. Adam was deployed again after he filed the Iowa action, which resulted in some
delay in completing the DNA testing. In May 2013, DNA testing confirmed that Adam was
B.H.’s father, and he met B.H. for the first time the following month.
¶6. In September 2013, the Iowa court entered a decree establishing custody and
visitation. The court awarded Adam and Priscilla joint legal custody, awarded physical
custody to Priscilla, and awarded visitation to Adam. At the time of the decree, Adam’s
contact with B.H. had been limited, and he was still completing his medical residency in
Ohio. Therefore, the Iowa court set a visitation schedule that would slowly increase B.H.’s
2
Albright v. Albright, 437 So. 2d 1003, 1005 (Miss. 1983).
3
time with Adam and accommodate his unpredictable work schedule. The court also ordered
Adam to pay child support.
¶7. In November 2014, the Iowa court found Priscilla in contempt for denying Adam
visitation with B.H. The court sentenced Priscilla to thirty days in jail, which the court
suspended on the conditions that Priscilla pay Adam $1,000 in attorney’s fees and comply
with a new visitation schedule. Adam was granted additional visitation to make up for the
time he had lost because of Priscilla’s actions. The court also modified Adam’s visitation
schedule to afford him two weeks of visitation during each eight-week period. The court’s
order required Adam to give Priscilla notice of the two weeks during which he would
exercise visitation in advance of each eight-week period. The order provided that Priscilla
could reject Adam’s first choice for visitation dates; however, she was not permitted to reject
Adam’s second choice. The order also established a holiday visitation schedule.
¶8. In August 2015, B.H., who was then three-and-a-half years old, visited Adam at his
home in Massillon, Ohio. Adam had to work during at least part of B.H.’s visit, and he left
her in the care of a babysitter, Mandy. During B.H.’s visit, Adam noticed a small burn mark
on her finger. A few days later, he noticed another mark on her forearm, and when he asked
Mandy about the marks, she said that there was another one on B.H.’s buttock. When Adam
asked B.H. about the marks, she told him that she had been burned at Priscilla’s house on the
stove or oven when Priscilla’s husband, Shawn, was cooking. Adam decided to take B.H.
to the emergency room in order to document the burns, and the doctor who saw B.H. said that
the burns were in the later stages of healing. Hospital records reflect that B.H. also told
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hospital staff that she had been burned at Priscilla’s house.
¶9. Priscilla and Shawn came to Ohio on August 29, 2015, to pick up B.H. Shawn
retrieved B.H. from Adam while Priscilla waited in the car. Shawn testified that within
moments of picking up B.H., he discovered the burn on her finger, then the marks on her arm
and buttock. Priscilla and Shawn asked B.H. about the burns, and she told them that she had
been burned at their home in Meridian. Priscilla decided to take B.H. to the local police
department to file a report about the burns. B.H. also told the police that she had been
burned in Mississippi. Priscilla also took B.H. to the hospital for treatment, and the records
from this visit to the hospital are similar to those from her prior visit with Adam. When
Priscilla returned home to Mississippi, she reported her suspicions of neglect or abuse to the
Mississippi Department of Child Protective Services (MDCPS).
¶10. Several weeks later, Adam sent Priscilla a text message to request his next visitation
with B.H. Priscilla rejected the request, supposedly because it would have required B.H. to
travel on Halloween. Adam then re-noticed his visitation for a different date. In response,
Priscilla told Adam that she would not allow him to have any additional visitation until
MDCPS completed its investigation of her report. MDCPS, in coordination with Ohio’s
child protection agency, investigated Priscilla’s report in July 2015 and found that any
allegation of abuse was “unsubstantiated.” Nonetheless, on September 25, Priscilla filed a
petition in the Lauderdale County Chancery Court to enroll the Iowa judgment and to
suspend and/or modify Adam’s visitation with B.H. Priscilla later amended her petition to
request an increase in child support. Priscilla denied all of Adam’s subsequent requests for
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visitation with B.H.
¶11. Adam filed an answer and a counterclaim to enforce the Iowa judgment, to modify
custody, and for contempt. On June 2, 2016, because Priscilla’s petition alleged that Adam
had abused or neglected B.H., the chancellor appointed attorney Frances Stephenson to serve
as guardian ad litem (GAL). Because Adam had not seen B.H. since August 2015, the GAL
met with B.H. and Adam in her office to observe how B.H. reacted to Adam. The GAL
reported that B.H. was uncomfortable around her father, so she recommended that B.H.
receive counseling from a child psychologist. The chancellor accepted the GAL’s
recommendation and ordered B.H. to receive counseling from Dr. Jennifer Whitcomb. The
court also ordered the GAL to continue working with B.H., Priscilla, and Adam to determine
if and how Adam’s visitation with B.H. should proceed.
¶12. Dr. Whitcomb and the GAL determined that B.H. should have visitation with Adam
and planned for them to visit briefly in Meridian on Friday, August 5, 2016, followed by an
all-day visit on Saturday, August 6. If all went well, B.H. would then go with Adam for a
week-long visit in Ohio.
¶13. The visit on August 5 did not start out well. When Priscilla and Shawn brought B.H.
to the meeting place, they did not leave immediately, and B.H. became upset. However, Dr.
Whitcomb eventually calmed B.H. and persuaded her to go with Adam, and Adam returned
B.H. to Priscilla later that evening without further incident.
¶14. The following day, Dr. Whitcomb and the GAL planned to pick up B.H. and then take
her to a nail salon to meet Adam. B.H. willingly went with Dr. Whitcomb and the GAL, and
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“she was excited about . . . getting her nails done, and that she would be seeing Adam.”
However, on the way to the nail salon, Dr. Whitcomb and the GAL noticed that Priscilla and
Shawn were following their car. Shawn parked across the street from the nail salon at a gas
station, and Priscilla later admitted that she hid in a friend’s car in a nearby parking lot. The
GAL and Dr. Whitcomb left B.H. at the nail salon with Adam after they were convinced that
she was comfortable with him.
¶15. Priscilla later sent the GAL a text message accusing her of not saying “goodbye” to
B.H. and having only Adam’s interests at heart. Priscilla sent another text message to the
GAL asserting that B.H. was “bawling her eyes out” in the nail salon. The GAL realized that
Priscilla must have a “spy” inside the salon, which Priscilla later admitted. The GAL knew
the salon owner and called him to check on B.H. The owner said that B.H. cried briefly after
the GAL departed but was fine.3 The GAL then called Adam and suggested that he take B.H.
to a water park in Choctaw once she finished her manicure. He did so, and he returned B.H.
to Priscilla that evening without further incident.
¶16. B.H. agreed to travel with Adam to his home in Ohio on August 7. B.H. stayed with
Adam until August 13, when Priscilla and Shawn came to pick her up. Adam testified at trial
that they had a good visit. When Adam had to work, B.H. stayed with a babysitter who had
a daughter close to her age. No problems were reported during this visit. B.H. also stayed
with Adam for a week in September 2016, and Adam’s sister came to Ohio to visit with B.H.
and babysit while Adam worked.
3
Priscilla later called the salon owner and asked him for video of Adam’s and B.H.’s
visit to the salon, which the owner declined to provide without a subpoena.
7
¶17. Adam requested visitation with B.H. while he was in Mississippi for trial in
September 2016, but Priscilla refused. She also refused to allow any post-trial visitation.
She told Adam that she would not allow further visitation without a court order.
¶18. At trial, Priscilla testified that she did not notice any burns on B.H. before Adam’s
visitation in August 2015. She claimed that Shawn noticed the burns almost immediately
after picking up B.H. in Ohio. Priscilla acknowledged that B.H. told her and Shawn, the
police, and doctors at the hospital in Ohio that she had been burned on the oven or stove at
their home in Mississippi. However, Priscilla denied that B.H. was burned in Mississippi,
and she suggested that B.H. may have been coached. Priscilla also claimed that B.H. told her
much later that she had been burned by a cigarette or a lighter. However, no one else heard
B.H. make that claim. Priscilla testified that although she filed a police report in Ohio, she
did not intend for Adam to be named as a “suspect” or an alleged perpetrator of the abuse.
Priscilla suspected that Adam’s babysitter, Mandy, had burned B.H. Priscilla faulted Adam
for leaving B.H. with Mandy after he discovered the burns. Priscilla also claimed that she
denied Adam visitation after August 2015 in order “to protect B.H. from being harmed
further.” Priscilla thought that Adam should only be allowed supervised visitation with B.H.
in Mississippi.
¶19. Adam testified that he first noticed the burn on B.H.’s finger, but it did not concern
him initially. When he later noticed a burn on her arm and Mandy told him about the burn
on her buttock, he decided to ask B.H. about them. B.H. told him that she burned her hand
and arm on the stove at home in Mississippi, and she burned her buttock when Shawn was
8
taking something out of the oven. Adam called MDCPS in Mississippi to report what B.H.
had told him, and he took B.H. to the hospital to document the burns. Adam said that the
burns were healing, so he was not worried about treatment. He denied that B.H. had received
the burns while in his or Mandy’s care.
¶20. Adam testified that in September 2015, he flew to Mississippi, rented a car, drove to
Meridian, and waited for Priscilla to bring B.H. to him at their standard meeting place. He
told Priscilla that he was coming and that he had a plane ticket for B.H. to fly back to Ohio
with him. Priscilla sent him a text that said, “I told you not to come. I’m not giving her to
you.” Adam flew back to Ohio the next morning, without B.H. Although he was entitled to
visitation with B.H. during Christmas in 2015, Priscilla told him that she would not allow it.
Adam testified that he initially bought a plane ticket to come to Mississippi again in
December, but he ultimately decided not to make the trip. He testified that when he was
finally allowed to resume visitation with B.H. in Ohio, they bonded and had a good time
together. B.H. is now very affectionate with him and tells him that she loves him.
¶21. Adam testified that his income will fluctuate over the next few years as he continues
his training as an orthopedic surgeon. He did not think that the chancellor should increase
his child support because he had paid all court-ordered child support even while Priscilla
continued to violate the same court orders. Adam testified that his work schedule varies, but
he generally works from 6 or 7 a.m. to 3 p.m. Adam testified that he would work similar
hours until he finished his residency in July 2017. He planned to move to Virginia for a one-
year fellowship in July 2017.
9
¶22. Adam acknowledged that B.H. and Priscilla have a close relationship, but he testified
that Priscilla was not a good parent because she was trying to force him out of B.H.’s life.
Adam maintained that it would be in B.H.’s best interest for him to have physical custody.
¶23. Dr. Whitcomb testified as an expert in marriage, family, and child development. She
testified that B.H.’s initial hesitation to visit with Adam was normal for a four-year-old child
who had not seen her father for an extended period. Dr. Whitcomb testified that B.H. denied
that Adam had ever hurt her in any way. Dr. Whitcomb also testified that Priscilla had
cancelled or failed to show up for two of B.H.’s court-ordered counseling sessions. Dr.
Whitcomb opined that Priscilla’s and Shawn’s interference with Adam’s relationship with
B.H. amounted to “emotional abuse.” Dr. Whitcomb was also concerned that Priscilla had
tried to coach B.H. to accuse Adam of burning her. B.H. told Dr. Whitcomb that she enjoyed
her time with Adam in Ohio, and Dr. Whitcomb had no concerns or reservations about B.H.’s
safety with Adam in Ohio.
¶24. The GAL’s testimony about Adam’s visitation with B.H. in August 2016 was
consistent with Dr. Whitcomb’s testimony. The GAL interviewed B.H., Adam, Priscilla, and
Shawn, reviewed the police reports and hospital records, and found no evidence that Adam
had ever harmed B.H. The GAL found that Priscilla had interfered with Adam’s visitation
intentionally and repeatedly. However, the GAL did not believe that Priscilla’s actions were
so “extreme” as to warrant a change in custody, and she did not recommend a modification
of custody. The GAL recommended that Adam should continue to have regular visitation
with B.H. and that B.H.’s pre-kindergarten schedule should not take precedence over
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visitation. The GAL also recommended that the chancellor enjoin Priscilla from interfering
with Adam’s visitation in any way.
¶25. On November 14, 2016, the chancellor entered a thirty-eight page memorandum
opinion and a separate final judgment. The chancellor found that Priscilla did not prove by
a preponderance of the evidence that Adam abused or neglected B.H. Therefore, he denied
her petition to suspend visitation or to require supervised visitation. The chancellor also
denied her request to modify or clarify Adam’s visitation under the Iowa visitation schedule.
The chancellor also denied Priscilla’s petition to increase child support.
¶26. The chancellor found that Priscilla had “unreasonably, irresponsibly and willfully”
violated the Iowa decree by refusing multiple visitation requests by Adam. He also noted her
“irresponsible” behavior during the August 2016 visitation in Meridian. The chancellor
found that Adam had shown by clear and convincing evidence that Priscilla was in contempt,
and he ruled that Priscilla’s conduct warranted incarceration. However, he suspended her
incarceration on the conditions that she comply with the Iowa court’s orders, grant Adam
specified holiday visitation, pay GAL fees, pay Adam $1,950 in attorney’s fees, and continue
to take B.H. to Dr. Whitcomb for counseling.
¶27. The chancellor also found that Adam had shown by a preponderance of the evidence
that a material change in circumstances had occurred relative to B.H.’s custody—namely,
Priscilla’s persistent interference with Adam’s visitation and relationship with B.H. The
chancellor also found that this change had been adverse to B.H.’s welfare. He found that
Adam and B.H. had a good relationship until August 2015, but Priscilla’s subsequent refusal
11
to allow visitation undermined the relationship and B.H.’s affections for her father.
However, after applying the Albright factors, the chancellor found that it was in B.H.’s best
interest to remain in Priscilla’s physical custody.
¶28. On appeal, Adam argues that the chancellor erred by not modifying custody after
finding there had been a material, adverse change in circumstances. Adam also argues that
the chancellor abused his discretion in awarding only $1,950 in attorney’s fees, and he
requests additional attorney’s fees for the appeal. On cross-appeal, Priscilla argues that the
chancellor erred by finding her in contempt, by denying her petition to increase child support,
and by finding that she failed to prove her allegations of abuse and neglect. We address these
issues in turn below.
ANALYSIS
I. Custody
¶29. “To modify child custody, ‘the non-custodial party must prove: (1) that a substantial
change in circumstances has transpired since issuance of the custody decree; (2) that this
change adversely affects the child’s welfare; and (3) that the child’s best interest mandates
a change of custody.’” Strait v. Lorenz, 155 So. 3d 197, 203 (¶20) (Miss. Ct. App. 2015)
(quoting A.M.L. v. J.W.L., 98 So. 3d 1001, 1013 (¶24) (Miss. 2012)). “The chancellor must
consider the ‘totality of the circumstances.’” Id. (quoting A.M.L., 98 So. 3d at 1013 (¶24)).
“If an adverse substantial or material change is found, the chancellor must then perform an
Albright analysis to determine whether modification of custody is in the child’s best interest.”
Id.12
¶30. On appeal, a chancellor’s findings of fact will be affirmed “if they are supported by
substantial, credible evidence.” Id. at (¶19) (quoting A.M.L., 98 So.3d at 1013 (¶23)).
“Matters involving child custody are within the sound discretion of the chancellor.” Id. We
will not reverse the chancellor’s custody decision “unless the chancellor abused his
discretion, was manifestly wrong, or clearly erroneous, or applied an erroneous legal
standard.” Id.
¶31. In general, one parent’s interference with the other’s visitation is not, by itself, a
reason to modify custody. See id. at (¶21). Noncompliance with visitation orders should be
dealt with through contempt rather than a change of custody. Id. at 203-04 (¶21). However,
in “extraordinary circumstances,” severe interference with visitation may amount to a
material change in circumstances. Id. at 204 (¶21).
¶32. The chancellor found that Priscilla’s willful and extensive interference with Adam’s
visitation and relationship with B.H. was a material change in circumstance because of the
harm it had done to Adam’s relationship with B.H. The chancellor’s finding of a material
change in circumstances is supported by substantial, credible evidence. Moreover, Priscilla
does not directly challenge this finding on appeal.
¶33. Having found a material change in circumstances, the chancellor was required to
conduct an Albright analysis. See Strait, 155 So. 3d at 203 (¶20). The chancellor found that
the “best parenting skills factor favors Adam.” However, the chancellor found that the
employment and employment responsibilities factor favors Priscilla because she is a stay-at-
home mother for B.H. (and her two other children), whereas Adam is a busy orthopedic
13
surgery resident and lives alone. The chancellor also found that the continuity of care,
emotional ties, and stability of home environment factors favor Priscilla. The chancellor
found all other factors to be neutral or inapplicable. Having “considered the evidence
relevant to the Albright factors,” the chancellor found that it was “in the best interest of [B.H.
to] remain within the custody of Priscilla.”
¶34. On appeal, Adam argues, inter alia, that the chancellor erred by finding that continuity
of care and emotional ties favored Priscilla. He argues that by weighing these factors in
Priscilla’s favor, the chancellor permitted Priscilla to benefit from her own misconduct.
Adam argues that the chancellor’s decision was inconsistent with this Court’s decisions in
Strait, supra, and Story v. Allen, 7 So. 3d 295 (Miss. Ct. App. 2008).
¶35. In Story, the chancellor found that the child had “been with her mother most of her
life” and that her separation from her father was “due to [the mother’s] conduct”—i.e., she
had “repeatedly interfered” with the father’s relationship and visitation with the child. Id.
at 298 (¶21). The chancellor then found that the “continuity of care factor” favored the
mother. Id. On appeal, this Court reversed, stating:
It is neither logical nor proper to favor one of the parents, under an Albright
factor, because of that parent’s malfeasance. . . . Equity dictates that the
chancellor should have at least found this factor to be neutral. Therefore, we
find that the chancellor committed manifest error with regard to the analysis
of the continuity of care.
Id. at 298-99 (¶21) (emphasis added).
¶36. The chancellor in Story similarly found that the emotional ties factor “slightly
favor[ed]” the mother, but this was in part because the mother had undermined the child’s
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relationship with the father. This Court reversed on this issue as well, stating:
Again, we find that [it] is not logical or proper to reward [the mother’s]
interference with [the father’s] relationship with [the child]. Again, equity
dictates that the chancellor should have at least found this factor to be neutral.
Therefore, we find that the chancellor committed manifest error with regard
to the analysis of the emotional ties of the parent and child.
Id. at 299 (¶22) (emphasis added); accord Strait, 155 So. 3d at 207-08 (¶¶39-40, 44).
¶37. In the present case, when the chancellor found that the continuity of care factor
favored Priscilla, he reasoned as follows:
Priscilla has had the care of B.H. since the child was born and she has had the
primary care of B.H. since September 2013. Of course, she has had more care
for B.H. than anticipated [since] September 2013 because she has denied
Adam visitation. This Court finds that the continuity of care factor favors
Priscilla as the custodial parent.
¶38. As to the emotional ties factor, the chancellor’s reasoning was similar:
Related to the continuity of care factor is the emotional ties of the parent and
child factor. B.H. has stronger emotional ties with Priscilla than she has with
Adam. However, Priscilla interfered with Adam’s development [of] emotional
ties with B.H. when she refused and interrupted his visitation with B.H. This
Court finds that the emotional ties of the parent and child factor favor Priscilla
as the custodial parent, but Priscilla’s refusal and interruption with Adam’s
visitation diminishes the significance of this factor.
¶39. The chancellor’s analysis in this case is similar to the analysis that was the basis for
reversal in Story. Although the chancellor in this case did acknowledge that these factors
favored Priscilla because of her own misconduct, the same can be said of the chancellor in
Story. See Story, 7 So. 3d at 298-99 (¶¶21-22). In addition, the chancellor did state that
Priscilla’s misconduct “diminishes the significance” of the emotional ties factor to some
unstated extent. However, in Story, this Court held that “equity dictates that the chancellor
15
should have at least found this factor to be neutral.” Id. at 299 (¶22). As to both the
continuity of care and emotional ties factors, the chancellor’s ruling is inconsistent with this
Court’s holding in Story. These factors may not be weighed in favor of Priscilla to any
degree because “equity dictates” that she not benefit from her own misconduct.
¶40. Moreover, we cannot say that this error was harmless. The error relates to two
important Albright factors in a case in which the evidence could have supported a different
ruling and a modification of custody. Accordingly, as in Story, we find that the chancery
court manifestly erred and that the issue of custody must be reversed and remanded for
further proceedings and a new Albright analysis. See id. at 298-99 (¶¶20-23).
¶41. Adam also argues that the chancellor should have modified custody because
“Priscilla’s behavior poses a clear danger to the mental or emotional health of B.H.” Adam
argues the chancellor did not give sufficient consideration to Priscilla’s unproven allegations
of abuse or neglect. Finally, Adam argues that the chancellor erred by finding that the
stability of home environment and employment responsibilities factors favored Priscilla and
by finding the mental health factor to be neutral. He argues that for all these reasons, we
should reverse and render a decision awarding him physical custody of B.H.
¶42. We disagree with these broader arguments. Despite Priscilla’s misconduct, the
evidence does not compel a finding that she is a “clear danger” to her daughter. In addition,
while the chancellor found that Priscilla’s allegations of abuse were not proven, the evidence
as to the cause of B.H.’s burns was conflicting and indeterminate, as was the evidence of
Priscilla’s motivations and good faith, or lack thereof, in alleging that the burns occurred
16
while B.H. was in Adam’s care. Finally, we do not find any manifest error in the
chancellor’s application of the remaining Albright factors.
¶43. In a custody case, “the chancellor has the ultimate discretion to weigh the evidence
the way he sees fit.” Johnson v. Gray, 859 So. 2d 1006, 1013-14 (¶36) (Miss. 2003). We
review the chancellor’s decision for manifest error, giving deference to the weight that he
assigned each factor. Smith v. Smith, 206 So. 3d 502, 513 (¶24) (Miss. 2016). We do not
“second guess” the chancellor’s ultimate decision in the absence of some legal or manifest
error. Irle v. Foster, 176 So. 3d 25, 31 (¶26) (Miss. Ct. App. 2013), aff’d, 175 So. 3d 1232(Miss. 2015). Therefore, although we must reverse and remand the case for further
proceedings and a new Albright analysis, we will not substitute our judgment for the
chancellor’s by rendering a final custody decision.
II. Attorney’s Fees
¶44. The chancellor awarded Adam $1,950 in attorney’s fees for Priscilla’s contempt.
Adam argues that this award was insufficient because he actually incurred at least $35,000
in attorney’s fees. At trial, Adam’s attorney attempted to “call [him]self” as a witness “[t]o
testify about attorney’s fees.” Priscilla objected on the ground that Adam had not listed his
attorney as a witness in the pretrial order, and the chancellor sustained the objection. Adam
then testified about his attorney’s fees and attempted to offer his attorney’s invoices into
evidence. Priscilla objected on the ground that Adam had not listed the invoices as a trial
exhibit in the pretrial order, and the chancellor sustained the objection. Adam’s attorney then
simply asked him, “[D]o you know how much you have incurred in attorney’s fees and
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expenses?” Adam stated, “I know it’s more than $35,000.” In the final judgment, the
chancellor awarded Adam fees of $1,950, payable in monthly installments of $100.4
¶45. “The matter of awarding attorney’s fees is largely entrusted to the sound discretion
of the chancellor.” Evans v. Evans, 75 So. 3d 1083, 1089 (¶22) (Miss. Ct. App. 2011) (citing
McKee v. McKee, 418 So. 2d 764, 767 (Miss. 1982)). “When a party is held in contempt for
violating a valid judgment of the court, attorney’s fees should be awarded to the party that
has been forced to seek the court’s enforcement of its own judgment.” Gregory v. Gregory,
881 So. 2d 840, 846 (¶28) (Miss. Ct. App. 2003). “Fees awarded on this basis, though,
should not exceed the expense incurred as a result of the contemptuous conduct.” Roberts
v. Roberts, 110 So. 3d 820, 828 (¶23) (Miss. Ct. App. 2013) (quoting Evans v. Evans, 75 So.
3d 1083, 1089 n.8 (Miss. Ct. App. 2011)). That is, fees incurred litigating other
matters—such as custody modification or child support—are not recoverable based on the
contempt.
¶46. In addition, “[o]ur well-established standard for reviewing the trial court’s admission
or suppression of evidence is abuse of discretion, and the discretion possessed by a trial court
in such matters is no doubt great.” Beverly Enterprises Inc. v. Reed, 961 So. 2d 40, 44 (¶18)
(Miss. 2007). We also hold, as federal courts have held repeatedly, that a trial judge “has
broad discretion in deciding whether to admit into evidence exhibits not listed in the pre-trial
4
After the final judgment, Adam filed an amended petition for contempt, alleging that
Priscilla continued to deny him court-ordered visitation. The chancery court’s subsequent
agreed order, discussed in footnote 1, supra, provided that “Adam’s claims and allegations
of contempt against Priscilla [would be] held in abeyance indefinitely subject to being later
asserted and/or heard.” The agreed order also required Priscilla to pay Adam “the total sum
of [$3,000] to reimburse [him] for fees and expenses incurred related to this matter.”
18
order.” Gilbert v. Tulane Univ., 909 F.2d 124, 127 (5th Cir. 1990) (citing Robert v. Conti
Carriers & Terminals Inc., 692 F.2d 22, 24 (5th Cir. 1982)); see M.R.C.P. 16 (discussing
pretrial conferences and pretrial orders); Lirette v. Popich Bros. Water Transp. Inc., 660 F.2d
142, 144 (5th Cir. 1981) (holding that the trial judge has “broad discretion” to exclude
witnesses not listed on the pretrial order); U.S. v. First Nat’l Bank of Circle, 652 F.2d 882,
886 n.5 (9th Cir. 1981) (“Exclusion by the trial court of . . . evidence not listed in . . . the
pretrial order has been repeatedly upheld.” (collecting cases)).
¶47. Applying these principles, we cannot say that the chancellor committed any abuse of
discretion in connection with the issue of attorney’s fees. The chancellor could have allowed
Adam’s attorney to testify or admitted the invoices, but he was within his discretion to
sustain Priscilla’s objections to evidence not listed on the pretrial order. Therefore, the only
evidence to support Adam’s request for attorney’s fees was his own testimony that he had
incurred more than $35,000 in fees. It is unclear whether this amount includes litigation in
Iowa or is limited to fees incurred in Mississippi. More important, Adam’s testimony was
not limited to fees incurred as a result of Priscilla’s contempt. As noted above, Adam was
not entitled to recover all of his attorney’s fees. Specifically, he was not entitled to recover
any fees in excess of those that he “incurred as a result of the contemptuous conduct.”
Roberts, 110 So. 3d at 828 (¶23) (quoting Evans, 75 So. 3d at 1089 n.8). Thus, Adam was
not entitled to fees that he would have incurred anyway litigating issues of custody, which
was the primary issue in this case, or child support. With no specific evidence as to the
amount of fees that Adam incurred because of Priscilla’s contempt, the chancellor did not
19
abuse his discretion by awarding attorney’s fees of $1,950. See Miss. Code Ann. § 9-1-41(Rev. 2014) (“In any action in which a court is authorized to award reasonable attorneys’
fees, the court [may] make the award based on the information already before it and the
court’s own opinion based on experience and observation . . . .”).
¶48. In his brief on appeal, Adam also requests an “appropriate” award of appellate
attorney’s fees. Such an award is appropriate in this case because Priscilla cross-appealed
the chancellor’s finding of contempt, and for the reasons discussed below, we affirm on that
issue. See Riley v. Riley, 196 So. 3d 1159, 1164-66 (¶¶23-32) (Miss. Ct. App. 2016) (holding
that an award of appellate attorney’s fees is appropriate when the chancellor awarded fees
based on a finding of contempt and the recipient must defend the finding on appeal).
Therefore, we award appellate attorney’s fees of $975, or one half of the attorney’s fees
awarded by the trial court. See id. at 1164 (¶23) (“Generally, on appeal this Court awards
attorney’s fees of one-half of what was awarded in the trial court.”); accord Grant v. Grant,
765 So. 2d 1263, 1268 (¶19) (Miss. 2000).
III. Contempt
¶49. The chancellor found Priscilla in contempt for denying Adam visitation on multiple
occasions in 2015. The chancellor found that Priscilla’s actions intentionally violated the
Iowa court’s visitation order, which had been enrolled in the chancery court. On appeal,
Priscilla argues that the chancellor erred. However, Priscilla’s argument is based on
frivolous interpretations of the Iowa order. For example, that order required Adam to notify
Priscilla of visitation dates “two (2) weeks before the beginning of each (8) week period.”
20
Priscilla now argues that this required Adam to give notice exactly two weeks prior to the
eight-week period so that when Adam provided notice fifteen days in advance, his notice was
too early and invalid. Priscilla argues that she was free to ignore such notice because it was
premature. Priscilla never disclosed her novel interpretations of the Iowa order until her brief
on cross-appeal. She did not raise these issues when she denied Adam visitation, nor did she
offer this defense at trial. Indeed, Priscilla admitted at trial that she had violated the Iowa
order. There was ample evidence to support the chancellor’s finding that Priscilla willfully
violated the Iowa order by denying Adam visitation on multiple occasions.5
IV. Child Support
¶50. In September 2013, the Iowa court found that Adam’s “gross” “salary” was $45,000
per year and ordered him to pay child support of $596.35 per month until B.H. reaches the
age of eighteen or is emancipated. Priscilla petitioned the chancery court to increase child
support, alleging that Adam’s income and B.H.’s expenses had increased. The chancellor
denied Priscilla’s petition because he found that she failed to “develop the factors relevant
to the modification of child support under the law of the issuing Court”—i.e., under Iowa
law. We conclude that the chancellor erred because the issue should have been decided
under Mississippi law.
¶51. The chancellor’s opinion correctly quoted the relevant provisions of the Uniform
5
Priscilla makes a separate argument that the chancellor erred by “sanctioning [her]
for violating the [GAL’s] visitation orders.” However, the chancellor found her in contempt
because she violated prior court orders, not any “orders” of the GAL. Nor did the chancellor
impose “sanctions” on Priscilla for her failure to cooperate with the GAL. The chancellor
simply discussed her behavior as further evidence of her ongoing efforts to interfere with
Adam’s visitation. The chancellor did not err by doing so.
21
Interstate Family Support Act, as adopted by the Mississippi Legislature:
(b) Modification of a registered child-support order is subject to the same
requirements, procedures and defenses that apply to the modification of an
order issued by a tribunal of this state and the order may be enforced and
satisfied in the same manner.
(c) A tribunal of this state may not modify any aspect of a child-support order
that may not be modified under the law of the issuing state, including the
duration of the obligation of support. . . .
Miss. Code Ann. § 93-25-611(b)-(c) (Supp. 2017).
¶52. In Nelson v. Halley, 827 So. 2d 42 (Miss. Ct. App. 2002), we interpreted the language
that is now found in subsection (c), above. See id. at 51 (¶¶33-35).6 In Nelson, the
chancellor modified a California support order to extend the duration of the father’s duty of
support until his children reached the age twenty-one. See id. at (¶33). On appeal, this Court
held that what is now subsection (c), above, prohibited the modification because the
California order terminated the father’s support obligations when his children reached the
age of eighteen or nineteen, and that aspect of the California order was not modifiable under
California law. See id. at (¶¶33-35). Therefore, we reversed the modification. Id. at (¶35).
¶53. The issue in this case is different. Priscilla did not seek to modify any aspect of the
Iowa court’s order that was non-modifiable under Iowa law. Her request to modify the
amount of support based on alleged increases in Adam’s income and B.H.’s expenses is
governed by subsection 93-25-611(b), which provides that “[m]odification of a registered
6
When Nelson was decided, subsection (c) did not include the clause, “including the
duration of the obligation of support.” See Nelson, 827 So. 2d at 51 (¶34). That language,
which effectively codifies Nelson’s holding, was added in 2004. See 2004 Miss. Laws ch.
406, § 33.
22
child-support order is subject to the same requirements, procedures and defenses that apply
to the modification of an order issued by a tribunal of this state.” Under subsection (b), a
Mississippi chancery court should apply Mississippi law and child support guidelines to a
request to modify the amount of child support payable. Deborah H. Bell, Mississippi Family
Law § 18.08[4][b], at 573 (2d ed. 2011); see, e.g., C.K. v. J.M.S., 931 So. 2d 724, 728-31
(Ala. Ct. Civ. App. 2005) (holding that under the parallel choice-of-law provisions of
Alabama’s uniform act, the duration of the support obligation could not be modified because
it was non-modifiable under the law of the “issuing state,” Mississippi, but Alabama law and
guidelines controlled any request to modify the amount of support payable); Groseth v.
Groseth, 600 N.W.2d 159, 164-69, 171 (Neb. 1999) (reaching the same conclusions under
Nebraska law); In re Marriage of Cooney, 946 P.2d 305, 307 (Or. Ct. App. 1997) (reaching
the same conclusions under Oregon law).
¶54. The chancellor denied Priscilla’s request to modify child support because she failed
to prove that an increase in support was warranted under Iowa law. This was error, as the
issue is governed by Mississippi law. Therefore, we reverse and remand for the chancellor
to consider Priscilla’s petition to modify child support under Mississippi law.7
V. Priscilla’s Allegations of Abuse and Neglect
¶55. On cross-appeal, Priscilla also argues that the chancellor “erred in finding that [she]
did not meet her burden of proof with respect to neglect and abuse.” Her brief addresses the
issue in only two sentences and simply notes that the burns were discovered while B.H. was
7
Of course, if there is a change of custody, reconsideration of Priscilla’s petition will
be unnecessary.
23
in Ohio. The issue is waived due to Priscilla’s failure to brief it. See M.R.A.P. 28(a)(7); In
re Estate of Smith v. Boolos, 204 So. 3d 291, 313 (¶49) (Miss. 2016).
¶56. The issue is also without merit. B.H. consistently told Adam, Priscilla, Shawn, the
police, doctors, and others that she was burned in Mississippi, not in Ohio. Adam adamantly
denied that he had ever neglected or abused B.H. MDCPS found that any allegation of abuse
or neglect was “unsubstantiated.” And the GAL and Dr. Whitcomb also found no evidence
of abuse. Suffice it to say, there was substantial, credible evidence to support the
chancellor’s finding that Adam did not abuse or neglect B.H.
CONCLUSION
¶57. We affirm the chancellor’s finding of contempt, his finding that Adam did not abuse
or neglect B.H., and his award of attorney’s fees to Adam. We also order Priscilla to pay
Adam additional attorney’s fees of $975 because Adam had to defend the chancellor’s
finding of contempt on appeal.
¶58. For the reasons discussed above, we reverse and remand as to Priscilla’s petition to
modify child support for the chancellor to apply Mississippi law. The issue of child support
should be determined based on “current circumstances” on remand. Wheat v. Wheat, 37 So.
3d 632, 643 (¶42) (Miss. 2010).
¶59. We also reverse on the issue of custody and remand for further proceedings consistent
with this opinion, including a new Albright analysis. It has been more than a year and a half
since the prior hearing. Therefore, as with the issue of child support, the chancellor should
base his decision on the best interest of the child and the circumstances as they exist “at the
24
time of the remand hearing.” Vaughn v. Davis, 36 So. 3d 1261, 1267 (¶18) (Miss. 2010).
¶60. ON DIRECT APPEAL: AFFIRMED IN PART; REVERSED AND
REMANDED IN PART. ON CROSS-APPEAL: AFFIRMED IN PART; REVERSED
AND REMANDED IN PART.
LEE, C.J., IRVING AND GRIFFIS, P.JJ., CARLTON, GREENLEE,
WESTBROOKS AND TINDELL, JJ., CONCUR. BARNES AND FAIR, JJ., NOT
PARTICIPATING.
25