Witters v. Witters
| Docket Number: | 2002-CA-00681-COA | |
| Court of Appeals: |
Opinion Link Opinion Date: 01-27-2004 Opinion Author: Irving, J. Holding: REVERSED AND RENDERED IN PART; AFFIRMED IN PART |
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| Additional Case Information: |
Topic: Contempt - Modification of vistation - Attorney's fees Judge(s) Concurring: McMillin, C.J., Southwick, P.J., Bridges, Thomas, Lee, Myers, Chandler and Griffis, JJ. Concurs in Result Only: King, P.J. Procedural History: Bench Trial Nature of the Case: CIVIL - DOMESTIC RELATIONS |
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| Trial Court: |
Date of Trial Judgment: 03-11-2002 Appealed from: Warren County Chancery Court Judge: Vicki Barnes Disposition: DEFENDANT IS PROHIBITED FROM TRANSPORTING MINOR CHILD BETWEEN MISSISSIPPI AND MICHIGAN ALONE BY CAR, IS REQUIRED TO NOTIFY LENDER OF HIS SOLE RESPONSIBILITY FOR MORTGAGE PAYMENTS AND PROVIDE PLAINTIFF WITH EVIDENCE OF SAME IS ADJUDGED IN CONTEMPT OF COURT FOR FAILURE TO TIMELY MAKE MORTGAGE AND CHILD SUPPORT PAYMENTS, AND IS REQUIRED TO PAY PLAINTIFF $500 IN ATTORNEY FEES, PLUS COURT COSTS. PLAINTIFF'S REQUEST FOR ATTORNEY'S FEES FOR THE MODIFICATION ACTION DENIED. Case Number: 00-425 GN |
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| Party Name: | Attorney Name: | |||
| Appellant: | Philip Edward Witters |
TRAVIS T. VANCE |
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| Appellee: | Tara L. Witters | WILLIAM R. WRIGHT W. BENTON GREGG |
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| Topic: | Contempt - Modification of vistation - Attorney's fees |
| Summary of the Facts: | After Phillip Witters and Tara Witters were divorced, 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. The chancellor found that the visitation schedule should be modified, 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, and that Phillip was in contempt for failure to timely pay his child support and mortgage payments and awarded Tara $500 in attorney fees plus court costs. Phillip appeals. |
| Summary of Opinion Analysis: | Issue 1: Visitation Phillip argues that the court erred in placing restrictions on his visitation without a finding that these restrictions were necessary to avoid harm to the child and in finding that the method of transportation of the child was not working. Unless compelling reasons are shown, the non-custodial parent during permitted visits with the child should have essentially unfettered discretion regarding the place and manner of the visit. Tara seeks to prevent Phillip from driving back and forth from Michigan to Mississippi with the child although she stated that she did not have any proof that the traveling was hurting the child. Because there is nothing in the record suggesting that the visitation schedule was not working, no compelling reasons exist that would warrant placing restrictions on Phillip’s visitations with his child. Issue 2: Contempt Phillip argues that the court erred in finding him in contempt because although he had been late in making some of his child support and mortgage payments, this was due to a financial burden placed on him in defending his right to exercise his visitation with his child. However, the record shows that there was ample testimony and evidence to support the chancellor’s finding that Phillip was in contempt for failure to timely pay his child support and mortgage payments. Issue 3: Attorney's fees Phillip argues that the court erred in awarding attorney fees and court costs to Tara. Since Tara was successful on her motion for contempt, she is eligible for an award of attorney fees. |
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