H.L.S. v. R.S.R.


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Docket Number: 2005-CA-01144-COA

Court of Appeals: Opinion Link
Opinion Date: 10-17-2006
Opinion Author: Ishee, J.
Holding: AFFIRMED IN PART; REVERSED AND REMANDED IN PART

Additional Case Information: Topic: Contempt - Modification of visitation - Dependency exemption - Psychological examination - Attorney’s fees - Health insurance
Judge(s) Concurring: Lee and Myers, P.JJ., Chandler, Griffis, Barnes and Roberts, JJ.
Non Participating Judge(s): King, C.J. and Irving, J.
Concurs in Result Only: Southwick, J.
Procedural History: Bench Trial
Nature of the Case: CIVIL - DOMESTIC RELATIONS

Trial Court: Date of Trial Judgment: 03-11-2005
Appealed from: Tate County Chancery Court
Judge: Mitchell M. Lundy, Jr.
Disposition: THE TRIAL COURT DENIED H.L.S.’S MOTION FOR SUPERVISED VISITATION, DENIED R.S.R.’S MOTION FOR CHANGE OF CUSTODY, AND GRANTED R.S.R.’S PETITION TO MODIFY VISITATION, INSURANCE, AND TAX DEDUCTION.
Case Number: 02-12-476(ML)

  Party Name: Attorney Name:  
Appellant: H.L.S.




GERALD W. CHATHAM, SR.



 

Appellee: R.S.R. STEVEN GLEN ROBERTS  

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Topic: Contempt - Modification of visitation - Dependency exemption - Psychological examination - Attorney’s fees - Health insurance

Summary of the Facts: H.L.S., the father, and R.S.R., the mother, had one child during their marriage, a daughter named S.N.S. The parties were originally divorced in Tate County 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. In 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. H.L.S. urged the court to grant a temporary restraining order and to suspend further non-supervised visitation. R.S.R. filed a cross-petition for contempt and modification of the former decree of divorce. The court denied H.L.S.’s petition for modification and temporary restraining order. The court modified the visitation schedule and 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 cited H.L.S. with contempt and ordered him to pay R.S.R.’s attorney’s fees in the amount of $1,000. H.L.S. appeals.

Summary of Opinion Analysis: Issue 1: Visitation H.L.S. argues that the chancellor provided for reasonable visitation in the original divorce decree and that there is nothing in the record to suggest that the original visitation schedule was not working. To modify a visitation order, it must be shown that the prior decree for reasonable visitation is not working and that a modification is in the best interest of the child. In H.L.S.’s testimony alone, there is substantial evidence that the visitation provision was not working. During cross-examination, H.L.S. admitted that he prevented R.S.R. from exercising her six-week summer visitation with S.N.S. during the summers of 2003 and 2004. He also admitted that he denied R.S.R. visitation during May of 2003 because S.N.S. didn’t want to go. Thus, the chancellor did not err in modifying the original visitation schedule. H.L.S. also argues that the court erred in not restricting R.S.R.’s visitation or at least ordering some form of supervised visitation. In order for a chancellor to properly impose restrictions on visitation, evidence must be presented that a particular restriction is necessary to avoid harm to the child. In support of his argument, H.L.S. primarily points to his testimony, and the testimony of his doctor, that R.S.R.’s teenage son stuck his tongue into S.N.S.’s mouth while babysitting. The doctor testified that he found S.N.S.’s claim that R.S.R.’s son kissed her to be very believable. He further testified that it was his recommendation that S.N.S. has no unsupervised contact with the boy. Thus, taking the best interest of the child into consideration, more weight should have been given to the opinion of the child’s physician. This issue is reversed and remanded. Issue 2: Dependency exemption H.L.S. argues that the record does not show a change in circumstances to warrant a change in the dependency exemption. Factors that have been considered in determining which party should be awarded the dependency tax exemption include the value of the exemption at the marginal tax rate of each parent, the income of each parent, the age of the child and how long the exemption will be available, the percentage of the cost of supporting the child borne by each parent, and the financial burden assumed by each parent under the property settlement in the case. According to H.L.S.’s financial statement, his net monthly pay was $3,096.44 as of March 3, 2003. According to R.S.R.’s financial statement, her net monthly pay was $1,867.22 as of March 5, 2003. Although the chancellor did not address each of the above factors in his opinion, such an analysis is not mandatory. Consequently, the chancellor did not abuse his discretion in awarding R.S.R. use of the dependency exemption in alternating years. Issue 3: Psychological examination H.L.S. argues that the chancellor erred in failing to order R.S.R. to reimburse H.L.S. for the $1,200 spent for psychological examination by a psychologist. H.L.S. argues that although the parties agreed to have a psychologist perform a custody evaluation, R.S.R.’s husband effectively prevented the psychologist from testifying by refusing to be examined. Although H.L.S. maintains that the psychologist would not give his report without examining R.S.R.’s husband, according to R.S.R.’s testimony, the psychologist stated that he would give his report if the parties would agree to exclude the stepparents. Thus, substantial credible evidence supports the chancellor’s decision not to order R.S.R. to reimburse H.L.S. for the $1,200 spent for the psychological examination. Issue 4: Contempt H.L.S. argues that he was justified in denying R.S.R. visitation because he was trying to protect the best interest of his child. However, the chancellor did not cite H.L.S. with contempt for the occasions when he prevented visitation out of concern for S.N.S’s best interest. By his own admission, H.L.S. prevented R.S.R. from exercising visitation in May of 2003 because S.N.S. did not want to go, and again on Memorial Day in 2003 because he overslept. Consequently, the chancellor did not err in citing H.L.S. with contempt. In contempt actions, a chancellor has the authority to make the prevailing party whole by awarding attorney’s fees. Therefore, the chancellor did not err in awarding attorney’s fees. Issue 5: Health insurance H.L.S. argues that R.S.R. showed no change in circumstances warranting a modification of the divorce decree ordering R.S.R. to maintain health insurance for S.N.S. R.S.R.’s decrease in pay and her inability to secure health insurance from her employer are a material change in circumstances, sufficient to warrant a modification of the divorce decree.


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