Ellis v. Ellis
| Docket Number: | 2001-CA-00713-COA Linked Case(s): 2001-CA-00713-COA |
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| Court of Appeals: |
Opinion Link Opinion Date: 03-18-2003 Opinion Author: Chandler, J. Holding: Affirmed in Part and Reversed and Remanded in Part |
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| Additional Case Information: |
Topic: Child custody - Contempt - Visitation Judge(s) Concurring: King and Southwick, P.JJ., Thomas and Irving, JJ. Non Participating Judge(s): McMillin, C.J. Dissenting Author : Myers, J. Dissent Joined By : Lee and Griffis, JJ. Concur in Part, Dissent in Part 1: Bridges, J. Concur in Part, Dissent in Part Joined By 1: Lee and Myers, JJ. Procedural History: Bench Trial Nature of the Case: CIVIL - DOMESTIC RELATIONS |
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| Trial Court: |
Date of Trial Judgment: 04-12-2001 Appealed from: Union County Chancery Court Judge: John C. Ross, Jr. Disposition: CHILD CUSTODY MODIFICATION DENIED. CHILD VISITATION MODIFIED. APPELLANT FOUND TO BE IN CONTEMPT. ATTORNEY'S FEES AWARDED. Case Number: 2000-76 |
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| Consolidated: Consolidated with 2005-CA-01741-COA Nancy Ellis v. John Ellis; Union Chancery Court; LC Case #: 2000-076-73L; Ruling Date: 07/27/2005; Ruling Judge: Talmadge Littlejohn | ||
| Party Name: | Attorney Name: | |||
| Appellant: | Nancy Ellis |
T. SWAYZE ALFORD |
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| Appellee: | John Ellis | WILL R. FORD |
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Synopsis provided by:  If you are interested in subscribing to the weekly synopses of all Mississippi Supreme Court and Court of Appeals hand downs please contact Tammy Upton in the MLI Press office. |
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| Topic: | Child custody - Contempt - Visitation |
| Summary of the Facts: | When Nancy and John Ellis were divorced, the court granted physical custody of their one child to Nancy with shared legal custody and established a visitation schedule. A year later, both parties petitioned for contempt and for modification of custody. The court found Nancy in contempt and ordered her to pay attorney's fees and to comply with the revised visitation schedule. She appeals. |
| Summary of Opinion Analysis: | Issue 1: Contempt Nancy argues that she was justified in interfering with the court ordered visitation because she was only following the advice given to her by the child's psychologist. A finding of contempt is proper if the contemnor has willfully and deliberately ignored the court’s order. The only defenses to a contempt violation include an inability to comply with the court order or that the court order was unclear. There is no defense for a contempt citation that the contemnor does not agree with the previous order and considers it to be wrong. Although Nancy argues that she was following the advice of the psychologist, she still willfully and intentionally disobeyed the court's visitation order. Nancy also argues that the court erred in awarding John attorney's fees. Because the court has authority in contempt proceedings to make the prevailing party whole by awarding attorney's fees, the court properly awarded attorneys’ fees. Issue 2: Visitation Nancy argues that the court erred by ordering no restrictions or supervision relative to John's visitations, because the psychologist advised that the visitations are harmful to the child, the child reported mistreatment while on visitation, and John refused to allow their daughter to participate in many of her activities while in his care. Nancy also argues that the court erred in ordering her to stop making contact with the child during John's visitation period and to stop scheduling events for their daughter during the time she is to be with John. The paramount concern in ordering visitation is the best interest of the child while recognizing the need to maintain a healthy, loving relationship between the non-custodial parent and his child. A visitation schedule that adversely affects a child's emotional stability is one that is not working. Here, there was expert testimony from both sides which created a question of fact as to what was in the best interest of the child. The trier of fact is the final arbiter as between experts whose opinions may differ as to precise causes. In addition, the non-custodial parent has broad authority with respect to the place and manner of the exercise of visitation subject only to the time constrictions found reasonable and placed in the decree. Nancy also argues that there is conflicting language regarding summer visitation between the chancellor's earlier provision that John would receive five weeks of visitation each year during the summer and its order giving him five extra days of visitation during the summer months in even years. To be enforceable a final decree should be sufficiently definite. Because the chancellor's determination is unclear as to summer visitation, this matter is remanded for clarification. |
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