V. CASE NO CA-00669

Transcription

1 IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI JAMES DAVID BRYANT, JR. APPELLANT V. CASE NO CA PAMELA RENE SMITH BRYANT APPELLEE ON APPEAL FROM THE CHANCERY COURT OF LAWRENCE COUNTY, MISSISSIPPI REPLY OF APPELLANT ORAL ARGUMENT NOT REQUESTED Matthew P. Kidder (MS B~ Joe R. Norton, IV (MS Bar~ KIDDER AND NORTON. PLLC 121 South Railroad Ave. Suite 203 Brookhaven, MS Telephone: (601) Telephone: (601)

2 IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI JAMES DAVID BRYANT, JR. APPELLANT V. CASE NO CA PAMELA RENE SMITH BRYANT APPELLEE CERTIFICATE OF INTERESTED PERSONS The undersigned counsel of record certifies that the following listed persons have an interest in the outcome of this case. These representations are made in order that the Justices of the Supreme Court and/or the Judges of the Court of Appeals may evaluate possible disqualification or recusal: 1. JAMES DAVID BRYANT, JR.; AppellantlDefendant 2. PAMELA RENE SMITH BRYANT; AppelleelPlaintiff 3. MATTHEW P. KIDDER (MS Bar #101822) and JOE R. NORTON, IV (MS Bar #103309); KIDDER AND NORTON, PLLC, 121 South Railroad Ave., Suite 203, Brookhaven, MS 39601; Attorneys for Appellant 4. WILLIAM D. BOERNER (MS Bar #3610); BOERNER LAw FIRM, P.C., P.O. Box 205, Brookhaven, MS 39602; Attorney for Appellee ~~~/Y~ MA HEVV'P. KIDDER 1

3 TABLE OF CONTENTS CERTIFICATE OF INTERESTED PERSONS... i TABLE OF CONTENTS... ii TABLE OF CASES, STATUTES AND AUTHORITIES CITED...iii SUMMARY OF THE ARGUMENT...1 ARGUMENT... 2 I. The order from the April 14, 2011 trial (entered on June 29, 2011) was a final, appealable order which addressed all matters pertaining to the parties, and should not be dismissed....2 II. In the alternative, should this Court find that the April 14, 2011 decision did not dispose of all claims of all the parties, the express language used by the lower court satisfies Miss. R. Civ. P. 54(b)... 5 III. Without waiving Appellant's Motion to Strike Appellee's argument of matters outside of the record, the August 9, 2011 was not a continuation of the April14, 2011 trial, and did not render it moot... 6 CONCLUSION... 7 CERTIFICATE OF SERVICE... 9 ii

4 TABLE OF CASES. STATUTES. AND AUTHORITIES CITED Cases: W M.F. v. D. D. F., 926 So. 2d 897 (Miss. 2006)... 6 McMurry v. Sadler, 846 SO.2d 240 (Miss.Ct.App. 2002)... 7 Statutes and Rules: Miss. R. Civ. P. 54(b) iii

5 SUMMARY OF THE ARGUMENT I. The April 14, 2011 was a final, appealable order, and David's appeal should not be dismissed. II. In the alternative, should this court find that the April 14, 2011 decision did not dispose of all claims of all the parties, the express language used by the lower court satisfies Miss. R. Civ. P. 54(b). III. Without waiving Appellant's Motion to Strike Rena's argument of matters outside of the record, the August 9, 2011 was not a continuation of the April 14, 2011 trial, and did not render it moot. I

6 ARGUMENT I. THE ORDER FROM THE APRIL 14,2011 TRIAL (ENTERED ON JUNE 29,2011) WAS A FINAL, APPEALABLE ORDER WHICH ADDRESSED ALL MATTERS PERTAINING TO THE PARTIES, AND SHOULD NOT BE DISMISSED. In David's Petition for Modification of Child Custody, filed on January 18,2011, he did request temporary relief: 11. Due to dire and necessitous circumstances, James David Bryant, Jr., Petitioner herein, requests an immediate temporary hearing to ensure the safety of the children and to temporarily grant him physical and legal custody of said minor children until this matter can be finally heard on the merits as Pamela Rena Smith Bryant is expected to remain incarcerated or otherwise unavailable due to long term drug and alcohol treatment, either through Mississippi Department of Corrections or at a private facility. R. vol. 2, ; Appellant's R. E. 4 (emphasis added). The "immediate temporary hearing to ensure the safety of the children" was set for hearing on January 26, The temporary hearing was not held. The parties made an agreement on where the children would live while Rena was living at New Life Rehabilitation Center. This agreement was referenced at the April 14, 2011 trial: The Court: Was there some agreement reached on where the children would live while Ms. Bryant went to New Life? Mr. Boerner: According to Mr. Kidder, yes. The Court: Who reached that agreement? Mr. Kidder: Your Honor, it's my understanding that my client was not a party to it. Mr. Bryant: May I speak, your Honor? I asked to take care of them while she was there. I was told no, that I could get them on my weekends. She made the arrangements for them to stay with her parents. I offered again to help out, you know, as much as I could. So far we've stuck to the normal, every other weekend. And she stayed with them. That was not- I wanted to take care of them while she was gone, until she got back. 2

7 R. vol. 3, This agreement satisfied and made null paragraph 11 in David's Petition for Modification of Child Custody. The issue of "temporary custody" was resolved and no longer pending, as the issue of the safety of the children was resolved. A trial on the merits of the Petition for Modification of Custody was set for February 16, R. vol. 2, 230. On February 16, 2011 Rena's attorney, William Boerner, made his appearance in court, and petitioned the lower court for a continuance of the trial. Judge Walker granted his petition and entered and Order Continuing Case and Resetting for Trial, setting a new date for trial on April14, R. vol. 2, 248. The April 14, 2011 trial was divided into a bifurcated hearing to determine whether there was a substantial material change in circumstances adverse to the children's interests, and if such a change existed, the court was to hear evidence regarding the best interests of the children. R. vol. 3,17; Appellant's R. E. 6. At the conclusion of the fust phase of trial, Rena presented her motion to dismiss to the court. R. vol. 3, ; Appellant's R. E. 6. Granting her motion, Judge Walker determined that there was no a material change adverse to the children to warrant a change in custody from the July 2, 2009 custody decree, and that the July 2, 2009 custody decree was still in effect. R. vol. 3, ; Appellant's R. E. 6. David argues that the lower court disposed of all of the claims in his Petition for Modification of Child Custody, and that the April 14, 2011 decision was a final, appealable order. R. vol ; Appellant's R. E. 4. Judge Walker found: The Court, at this point, is not convinced there's been a material change in circumstances adverse to the health and well-being of the minor children in the home of the custodial parent, such that a change in custody is necessary. R. vol. 3, Ill; Appellant's R. E. 6. Under the terms of joint legal and physical custody, they both have joint custody ofthe child, of the children here. I'm not modifying it or changing it at this point. 3

8 R. vol. 3, 116; Appellant's R. E. 6. The parties have agreed for them to have joint physical custody and I haven't seen anything that would change, as far as material change in circumstances, that would change that at this point. R. vol. 3,118; Appellant's R. E. 6. But I'm not fmding there's a material change in circumstances in the matter. Just like I said earlier. R. vol. 3, 122; Appellant's R. E. 6. Judge Walker granted Rena's Motion to Dismiss, thereby ending the April 14, 2011 trial on David's Petition for Modification of Custody. After the lower court dismissed David's Petition for Modification of Child Custody, Judge Walker ruled that because of the impossibility of enforcing the July 2nd, 2009 custody decree (that the children reside predominately with Rena), the children would reside predominately with David until Rena completed her drug rehabilitation treatment. R. vol. 3, ; Appellant's R. E. 6. Judge Walker recognized that because of Rena was currently living in a drug rehabilitation facility, it was impossible for the children to reside with her, stating: At this point, it does not appear that the children can reside with the plaintiff because she is not living in a place that will provide for the children to live there... It's an impossibility at this point [for the children] to live with mom. An impossibility. R. vol. 3, 112, 118; Appellant's R. E. 6. Judge Walker also had lengthy legal argument with Rena's counsel addressing the temporary nature of the modification put in place. R. vol. 3, ; Appellant's R. E. 6. Despite Rena's argument against allowing the children to reside with David while she was in rehab, the Chancellor again reiterated the impossibility of enforcing the July 2, 2009 decree as written: But it's impossible right now to do that order like that. Is it not? Now, how in the world could I leave that order in place like that with her at New Life [rehabilitation facility]? Where would the children stay?.. And that's what I'm 4

9 doing now. I'm enforcing the order in that I'm letting the children- they still have joint physical custody of the children. But while she's in rehab the children are going to reside with Mr. Bryant. R. vo!' 3, ; Appellant's R. E. 6. final order: Rena's counsel attempted to persuade Judge Walker that his decision was not a Mr. Boerner: Judge, all I would ask is that whatever order we draft, would specifically recognize that the Court maintains jurisdiction of all of this and that it's not a final permanent order. The Court: Let me tell you something. I'm going to tell you at this point, it is a fmal order which either one of you can appeal, as far as that goes. R. vo!' 3, 120. Appellant's R. E. 6. Rena continued her argument that this was not a final order, and Judge Walker again stated "the order is final enough that if you want to appeal it, you are welcome to appeal this order that I'm entering now." R. vo!' 3, ; Appellant's R. E. 6. The court then directed David's counsel to enter the order stating: The Court: Mr. Norton, if you will prepare the order and send it to Mr. Boerner for his signature one way or the other. Mr. Norton: Your Honor, I will be glad to prepare it. The Court: Then he doesn't have to agree to it, but as to form and content. R. vo!' 3, 129. The April 14, 2011 was a fmal, appealable order, which disposed of all ofthe claims of the parties, and David's appeal should not be dismissed. II. IN THE ALTERNATIVE, SHOULD THIS COURT FIND THAT THE APRIL 14,2011 DECISION DID NOT DISPOSE OF ALL CLAIMS OF ALL THE PARTIES, THE EXPRESS LANGUAGE USED BY THE LOWER COURT SATISFIES MISS. R. CIV. P. 54(B). In the alternative, David argues that pursuant to Miss. R. Civ. P. 54(b) the court made an express determination that there is no just reason for delay and an express decision for the entry of judgment. The comment to Miss. R. Civ. P 54(b) states: 5

10 If the court decides that an order that does not dispose of all the claims of all the parties and that is not appealable under any other statute or rule should be given the status of a [mal judgment, Rule 54(b) requires it to take two separate steps before an appeal can be perfected. The court must make 'an express determination that there is no just reason for delay' and it must make 'an express decision for the entry of judgment.' Miss. R. Civ. P. 54(b) cmt. As discussed supra, Judge Walker stated: Let me tell you something. I'm going to tell you at this point, it is a [mal order which either one of you can appeal, as far as that goes... the order is [mal enough that if you want to appeal it, you are welcome to appeal this order that I'm entering now... Mr. Norton, if you will prepare the order and send it to Mr. Boemer for his signature one way or the other... Then he doesn't have to agree to it, but as to form and content. R. vol. 3, ; 129; Appellant's R. E. 6. The Supreme Court, in M W F. v. D. D. F., held that the chancellor's temporary order did "not use the specific and express language required by Miss. R Civ. P. 54(b)... in a definite unmistakable manner." 926 So. 2d 897, 900 (Miss. 2006). However, in this case, Judge Walker's language is specific, express, and unmistakable. Therefore, the requirements of Miss. R. Civ. P. 54(b) are satisfied. III. WITHOUT WAIVING APPELLANT'S MOTION TO STRIKE RENA'S ARGUMENT OF MATTERS OUTSIDE OF THE RECORD, THE AUGUST 9, 2011 WAS NOT A CONTINUATION OF THE APRIL 14,2011 TRIAL, AND DID NOT RENDER IT MOOT Appellant has a pending Motion to Strike Appellee Pamela Rena Smith Bryant's references to matters outside the scope of the record in this appeal before this Court, and without waiving his argument or any rights, will address Rena's assertion that the August 9, 2011 hearing renders moot the lower court's April 14,2011 decision. The lower court granted Rena's motion to dismiss David's Petition for Modification of Child Custody on April 14,2011. David had no other motion, petition, or any other document pending in the lower court. Rena filed a Motion, notifying the Court that Rena had completed drug-rehabilitation care at New Life and that Rena 6

11 is able and fit to maintain custody (paragraph 3) pursuant to the July 2, 2009 custody decree (in paragraph beginning with "WHEREFORE..."). Appellee's R. E. 8. Rena now argues that this hearing was a continuance of the April, 14, 2011 hearing. However, at the April 14, 2011 hearing, the lower court granted her motion to dismiss David's Petition for Modification of Child Custody. Therefore, David could not argue for a modification of child custody, nor could he put on evidence of a material change of circumstances or adverse effect, because he had no pending motion before the court. Furthermore, Rena's Motion did not properly plead the three-part test for modification of custody as required by Mississippi law. The Mississippi Court of Appeals properly dismissed a mother's petition for failure to state a claim because she did not properly plead the three-part test. McMurry v. Sadler, 846 So.2d 240, 244 (Miss.Ct.App. 2002). Finally, while Rena did attach a transcript of the lower court's ruling, she did not submit to this Court a transcript of the whole hearing. If she would have, this Court would have been able to read Judge Walker's statements concerning why the parties were in court on that day. To the best of Appellant's counsel's recollection, Rena's counsel argued to the court that the parties were there to proceed on an Albright analysis. To the best of Appellant's counsel's recollection, Judge Walker corrected Rena's counsel on record, stating that the parties were there to determine whether or not Rena was able to resume custody pursuant to the july 2, 2009 custody decree, and not for a modification of custody. For the foregoing reasons, Rena's arguments concerning the August 9, 2011 hearing hold no weight, and have no bearing on David's appeal. CONCLUSION The lower court's April 14, 2011 ruling was a final, appealable order, which David properly appealed from. The August 9, 2011 hearing and documentation relating to it is a matter 7

12 outside ofthe record, and is addressed in David's Motion to Strike. Without waiving any rights pertaining to the Motion to Strike, David argues that the August 9, 2011 has no bearing on his appeal. He respectfully prays for this Court to rule accordingly, and for any other relief this Court deems proper. This the I a t4 day of April, Respectfully submitted, JAMES DAVID BRYANT, JR. By: ryl~f. '~ Matthew P. Kidder (MS B Joe R. Norton, IV (MS Bar KIDDER AND NORTON. t'lll 121 South Railroad Ave. Suite 203 Brookhaven, MS Telephone: (601) Telephone: (601)

13 CERTIFICATE OF SERVICE I, Matthew P. Kidder, do hereby certify that I have this date caused to be served via first class mail, electronic mail, and/or by hand delivery, a true and correct copy of the above and foregoing pleading to: William D. Boerner, Esq. Boerner Law Firm, P.C. P.O. Box 205 Brookhaven, MS Attorney for Appellee Hon. Joe Dale Walker Lawrence County Chancery Judge P.O. Box 909 Monticello, MS And all other known counsel of record. This the lel'6ay of April, ~tild-/?t~ MATTHEW P. KIDDER 9