IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI CERTIFICATE OF INTERESTED PERSONS

Transcription

1 IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI JAMES DA YID BRYANT, JR. V. PAMELA RENA SMITH BRYANT -e: APPELLANT CAUSE NO CA 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 disqualifications or recusal: 1. JAMES DAVID BRYANT, JR.; AppellantlDefendant 2. PAMELA RENA SMITH BRYANT; AppelleelPlaintiff; and BILL SMITH AND PAM SMITH, Monticello, Mississippi; Parents of AppelleelPlaintiff 3. MATTHEW P. KIDDER, ESQ. (MS Bar No ) and JOE R. NORTON, IV, ESQ. (MS Bar No ); Kidder and Norton, PLLC, 121 South Railroad Ave., Suite 203, Brookhaven, MS 39601; Attorneys for Appellant 4. WILLIAM D. BOERNER, ESQ. (MS Bar No. 3610) and BRADLEY RUSSELL BOERNER, ESQ. (MS Bar No ); Boerner Law Firm, P.C., P. O. Box 205, Brookhaven, MS 39602; Attorneys for Appellee ~~ WILLIAM D. BOERNER

2 TABLE OF CONTENTS CERTIFICATE OF INTERESTED PERSON... i TABLE OF CONTENTS... ii TABLE OF CASES, STATUTES AND AUTHORITIES CITED... iii STATEMENT OF ISSUE... I STATEMENT OF THE CASE... 2 I. Nature of the Case, Course of the Proceedings and Disposition in the Court Below... 2 II. Statement of Facts SUMMARY OF THE ARGUMENT... 7 ARGUMENT... 8 I. This Appeal should be Dismissed for Lack of Subject Matter Jurisdiction II. III. The August 9, 2011 Decision ofthe Lower Court Renders Moot the Previous Decision of April 14, The Lower Court's April 14, 2011 Decision to Place Temporary Custody of the Children with David was Correct II CONCLUSION CERTIFICATE OF SERVICE

3 TABLE OF CASES, STATUTES AND AUTHORITIES CITIED Cases: Bradley v. Holmes, 242 Miss. 247,134 So. 2d 494 (1961)... 1 Rosson v. McFarland, 2004-CA SCT P N w: F. v. D. D. F., 2003-CT SCT... 8 Quadrini v. Quadrini, 2006-CA COA Statutes and Rules: Miss. R. Civ. P Miss. R. App. P III

4 STATEMENT OF ISSUES Appellee, Pamela Rena Smith Bryant "Rena", contends that this Court lacks subject matter jurisdiction of this appeal inasmuch as the Order of the trial Court appealed herein (Order filed June 30, 2011, from April 14,2011 hearing, Appellee's R. E. 5) was interlocutory and not final and, therefore, not appealable M.C.A. (1972); Bradley v. Holmes, 242 Miss. 247, 134 So.2d 494 (1961). The custody challenge put forth by James David Bryant, Jr. "David" in his Petition for Modification of Child Custody filed herein (Appellee's R. E. 3) was rendered moot by the lower Court's decision August 9, 2011, placing predominant custody of the minor children back with Rena and subject to the visitation rights originally agreed upon by and between the parties (Appellee's R. E. 2 and 10); thus confirming the interlocutory nature of the earlier Order from which David appeals. Notwithstanding the fact that this Court lacks jurisdiction of the subject matter of this appeal; and that David's attempt to modify custody has been rendered moot by this Court's bench opinion of August 9, 2011, the Chancellor correctly found (on April 14,2011) there to be insufficient evidence to support a substantial material change in circumstances and then correctly placed the children with David, on a temporary basis, until Rena could be released from rehab after which the whole matter would be revisited. This appeal should be dismissed. 1

5 STATEMENT OF THE CASE I. NATURE OF THE CASE, COURSE OF THE PROCEEDINGS AND DISPOSITION IN THE COURT BELOW This is a custody modification dispute emanating from the Chancery Court of Lawrence County, Mississippi. Appellee, Pamela Rena Smith Bryant "Rena", the original Plaintiff in this action, and Appellant, James David Bryant, Jr. "David", the original Defendant in this action were divorced from one another by Judgment of Divorce entered by the lower Court January 12, 2009 upon the ground of irreconcilable differences; the two (2) minor children, namely: Conner David Bryant, born December 30, 1998 and Spencer Edgar Bryant, born July 14,2003, were placed (by agreement) in the joint legal and physical custody of the parties, with actual physical custody to rotate between the parties week to week; David to pay Rena $ per month in child support; David to pay Rena $5, for equitable distribution of marital assets (Appellee's R. E. I). The parties then agreed upon and presented to the lower Court an Agreed Order (entered July 8, 2009) wherein the joint physical care, custody and control of the minor children was changed wherein the parties agreed for the children to "reside predominately" with Rena and with David to have actual custody on alternating weekends from 5:00 p.m. on Friday until 5:00 p.m. on Sunday; holiday visitation to be split evenly between the parties as they shall agree; and setting forth provisions for specific holiday visitation in the event the parties should not agree; and provide for David to pay unto Rena $ per month in child support beginning February 1, 2009 and setting the matter for review before the Court regarding custody and visitation upon motion of either party or within six (6) months whichever shall first occur (Appellee's R. E. 2). David filed his Petition for Modification of Child Custody (Temporary Relief Requested) January 18, Earlier that same month, David's former girlfriend, Wendy Scruggs, had 2

6 made multiple attempts to get Rena to share drugs with Wendy even though Rena was on probation and subject to unannounced drug testing. Rena stupidly agreed to share some cocaine with Wendy on January 12, 2011 (Appellee's R. E. 6, pg. 34 and 35). By either some rare coincidence or actual knowledge, David called Rena's probation officer on January 12, 20 II and Rena's probation officer called Rena in for a drug test on January 13, 2011; at which time Rena tested positive for the first time since 2006 (Appellee's R. E. 6, pg. 34). Thereafter, Rena voluntarily entered rehabilitation at the New Life for Women, Inc. in Jackson, Mississippi and the children moved in with Rena's parents, Bill and Pam Smith, who reside in Monticello, Mississippi (Appellee's R. E. 6, pg. 48). The Chancery Court of Lawrence County, Mississippi (Hon. Joe Dale Walker presiding) heard David's Petition for Modification on April 14, At the close of David's case, Rena's counsel made a motion to dismiss and the Court rendered a decision from the bench placing temporary custody of the children with David until such time as Rena could be released from rehabilitation from New Life for Women, Inc. in Jackson, Mississippi. The Chancellor specifically stated (Appellee's R. E. 6, pg. 112, beginning at line 25): "The Court is going to at this point temporarily modify the agreement to allow the children to come home from school at the home of their grandparents, Bill and Pam Smith, and that Mr. Bryant is to pickup the children when he gets off work. The children are to reside with Mr. Bryant in his house"... "The Court is going to order that on weekends that Ms. Bryant is home from New Life that the children are to reside with her in the home of her parents." Then on page 114: "I'm going to suspend the payment of child support beginning now, pending the release of Ms. Bryant from New Life. At that time the Court will revisit this matter because we do not know when she is going to get out." 3

7 Then upon being asked as to the nature of the Order the lower Court stated on page 116: "Certainly it's a temporary order. Just like I started off temporarily. Simply because of this, right now they have joint physical custody. The primary situation is spelled out in there. But under the terms of joint legal and physical custody, they both have joint custody of the child, of the children here. I'm not modifying it or changing it at this point. The only thing I'm doing is saying that while she's in New Life, the right and proper thing to do is for the father to have the child. It would be the same situation if it was reversed." And the Court continued on page 122: "But I'm not finding there's a material change in circumstances in the matter. Just like I said earlier. But I am temporarily modifying it as to where the children are going to stay." (emphasis added) Upon being questioned about summer visitation between the parties if Rena were released from rehab the Court stated on page 128: "If she's out, I would assume that" (that the week on and week off visitation through the summer would take effect between the parties). "And I would assume that we would be back in here looking at the whole issue." David's counsel was then instructed to prepare an Order after which the parties, through counsel, were unable to agree upon the wording of that Order until the entry of the Court's Order June 30, 2011 which simply attached the transcript of the Court's ruling from April 14,2011 as summarized above. It is from this Order that David seeks his appeal (Appellee's R. E. 5 and 7). Significantly, Rena filed her Motion before the lower Court (June 9, 2011) wherein Rena gives notice of her release from New Life for Women on May 13, 2011, her having resumed residence with her uncle in Monticello, Mississippi, as well as her contention that she was ready, willing, able and fit to maintain custody of the minor children; alleging that David was withholding week to week custody from Rena during the summer; and that she was seeking reinstatement of predominant physical custody of her two (2) boys (Appellee's R. E. 8). On June 20, 2011 the Circuit Court of Lincoln County, Mississippi entered its Order Discharging 4

8 Supervision and Dismissal of Charges pertaining to Rena, a copy of this Order having been filed in the Chancery cause June 27, Rena had pled guilty to uttering forgery in Lincoln Circuit Court in October (Appellee's R. E. 9). Rena's June 2011 Motion was heard August 9, 2011, after which the lower Court ruled that predominant physical custody of the children should be returned to Rena subject to the same visitation originally agreed upon by and between the parties in the Agreed Order dated July 8, 2009 (Appellee's R. E. 2) and imposing conditions upon the parties with regard to the children being exposed to drinking and/or dangerous four-wheeler activities (see the transcript of the Court ruling, Appellee's R. E. 10). The lower Court's Order on the August 9, 2011 hearing was entered March 26, 2012 (Appellee's R. E. II). II. STATEMENT OF FACTS Rena disputes David's rendition and summary ofthe facts in this case, especially the onesided attempt to summarize irrelevant matters between the parties prior to the entry of this Court's Agreed Order entered July 8, 2009 wherein both parties agreed to predominant physical custody of Conner (then age 10) and Spencer (then age 6) with Rena subject to weekend and holiday visitations to be enjoyed by David; increased his child support from $ per month to $ per month and provided for payment of money by David to Rena to complete the equitable distribution (Appellee's R. E. 2). Thereafter, the minor children resided with their mother at her uncle's residence (Wayne Smith, in Monticello, Mississippi) with David providing child support and having visitation rights until April 14,2011. Up until January 12,2011 there was no proof with regard to any semblance of a substantial material change of circumstances. Rena did admit that she had spent the night with her boyfriend, post divorce, while having her children in the same house (Appellee's R. E. 6, pg ). Rena further stated that she had not 5

9 used illegal drugs/abused drugs since 2006 up until the incident in January 2011 (Appellee's R. E. 6, pg. 34). David's summary of facts implies that Rena left her children alone on occasion at night, which is patently untrue. Rena and the boys resided in the home of Rena's uncle, Wayne Smith, who was present on the few occasions that Rena would leave after the children were put to sleep. On January 12,2011, as Rena has candidly admitted, she stupidly gave in to the offer of Wendy Scruggs (David's girlfriend post divorce) and agreed to use cocaine with her. That same day David called Rena's probation officer and Rena's probation officer called her in for a test the following day, and Rena failed the test. On February 7, 2011, Rena voluntarily admitted herself into treatment at New Life for Women, Inc. in Jackson, Mississippi from which treatment she was released May 13,2011 (Appellee's R. E. 8). She was thereafter discharged from probation and her uttering forgery charge dismissed and non-adjudicated. (Appellee's R. E. 9). David's Petition for Modification of Custody was heard by the lower Court April 14, 2011 at which time the Chancellor placed the children, temporarily, with David until Rena's release from rehab, at which time the Court would revisit the matter. After her release from rehab on May 13, 2011, Rena filed her Motion (June 9, 2011) which was heard by the Chancellor August 9, 2011, resulting in the lower Court reinstating Rena's predominant physical custody of Conner and Spencer subject to admonishments to Rena and David regarding drinking and four-wheeler use by the children (Appellee's R. E. 10 and 11). 6

10 SUMMARY OF THE ARGUMENT Appellee, Pamela Rena Smith Bryant, "Rena" contends that: 1. This appeal should be dismissed as it lacks subject matter jurisdiction due to David having taken this appeal from a Temporary Order. 2. That the lower Court rendered moot the affect of its decision made April 14, 20 II (being the Order appealed from) by re-establishing predominant physical custody of the minor children with Rena in the lower Court's decision rendered August 9, 2011; and 3. The lower Court made the right decision (April 14, 2011) by placing temporary custody of the minor children with David while Rena was in rehab, the Court recognizing that the matter should be revisited upon Rena's release from rehab. 7

11 ARGUMENT 1. THIS APPEAL SHOULD BE DISMISSED FOR LACK OF SUBJECT MATTER JURISDICTION. The lower Court Order David appeals from was interlocutory and not final M. C. A. (1972 as amended) states: "An appeal may be taken to the Supreme Court from any Final Judgment of the Circuit and Chancery Court in a civil case not being a judgment by default, by any of the parties or legal representatives of such parties; and in no case shall such appeal be held to vacate the judgment or decree." (emphasis added) The Mississippi Supreme Court stated in Rosson v. McFarland, 2004-CA SCT P6: "This Court's jurisdiction is expressly set forth in (Miss. Code Ann.) as proper only from a final judgment. As noted in Bradley v. Holmes, 242 Miss. 247,134 So. 2d 494 (1961), an appeal is not a matter of right but is subject to the statutory provisions, and the basic requirement is that appeals are proper only if from a final Judgment. See also Perkins v. Thompson, 127 Miss So. 2d 710 (1922) and Banks v. City Finance Company, 825 So. 2d 642, (Miss. 2002)." Further, the Supreme Court in N W. F. v. D. D. F., 2003-CT SCT addressed the situation wherein a Chancellor is presented with multiple claims such as custody, child support and others and where an Order addresses only one, but not all of said claims; and is not certified as provided in Miss. R. Civ. P. 54, then the Order is interlocutory Miss. R. Civ. P. 54(b) states: "b. Judgment upon multiple claims or involving multiple parties. Where more than one claim for relief is presented in an action, whether it is a claim, counter-claim, cross-claim or third-party claim, or when multiple parties are involved, the Court may direct the entry of its Final Judgment as to one or more but fewer than all of the claims or parties only upon an expressed determination that there is no just reason for delay and upon an express direction for the entry of the judgment in the absence of such determination in the action, any order or 8

12 other form of decision, however designated which adjudicates fewer than all of the claims or the rights and liabilities of fewer than all of the parties shall not terminate the action as to any of the claims or parties and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties." The N. W. F. v. D. D. F. Court stated: "Absent a certification under Rule 54(b), any Order in a multiple party or multiple claim action, even if it appears to adjudicate a separable portion of the controversy, is interlocutory." For such an Order to be appealable the lower Court must "make an express determination that there is no just reason for delay and must make an express direction for the entry of judgment." Miss. R. Civ. P. 54(b) cmt. Without such a Rule 54(b) Certification, a trial Court Order which disposes of less than all of the claims against all of the parties in a multiple party or multiple claim action is interlocutory. Ibid P.4. In the instant case, David's Petition sought a change of custody, both temporary and permanent; sought child support from Rena, and restrictions imposed upon Rena's visitation rights. David's specific request for temporary relief is contained in paragraph 11 of this Petition wherein he seeks "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" (Appellee's R. E. 3). The Chancellor's decision granting temporary custody of the children to David until Rena is released from rehab and then to revisit the matter, clearly grants David's request for temporary relief. David made no attempt to seek a certification from the lower Court consistent with Miss. 9

13 R. Civ. P. 54(b), nor did he seek permission to file an interlocutory appeal; but proceeded with the instant appeal which assumes the lower Court's Order to have been final, which it was not. Further, David failed to follow Miss. R. App. P. 5 pertaining to interlocutory appeals. This appeal should be dismissed due to lack of subject matter jurisdiction. II. THE AUGUST 9, 2011 DECISION OF THE LOWER COURT RENDERS MOOT THE PREVIOUS DECISION OF APRIL 14,2011. The lower Court (on April 14,2011) granted David's request for temporary custody, the lower Court having in that ruling uttered the word "temporary or temporarily" several times. Upon considering Rena's Motion (filed after her release from rehab) the lower Court, on August 9, 2011, ordered that the children be returned to the predominant physical custody of Rena and subject to the same visitation arrangements that the parties had previously agreed upon in the July 8, 2009 order (Appellee's R. E. 2, 10 and 11). Nothing new was offered at the later hearing regarding any substantial material change in circumstance, much less adverse affect upon the minor children. David simply revisited the incident that took place on January 12,2011 when Rena had previously agreed to use cocaine with Wendy Scruggs. David has now had two (2) opportunities to present evidence of substantial material change of circumstances and adverse effect and has obviously failed to do so. Further, although David did request on the record for findings of fact and conclusions of law; that request was not renewed at the close of evidence, nor at any time during the arguments made upon Rena's Motion to Dismiss and, was, therefore, waived. Finally, the lower Court was not obligated to make findings of fact and conclusions of law regarding a temporary Order. 10

14 III. THE LOWER COURT'S APRIL 14, 2011 DECISION TO PLACE TEMPORARY CUSTODY OF THE CHILDREN WITH DA YID WAS CORRECT. Given the temporary nature of Rena's rehab at New Life for Women which began February 7, 2011 and ended May 13, 2011, the lower Court was justified in addressing temporary custody only on April 14, 20 II and choosing to revisit the situation after Rena's completion of that rehabilitation. Our Court of Appeals in Quadrini v. Quadrini, 2006-CA COA P. 2, addressed a similar situation where an Order from the lower Court was found to be temporary in nature as evident by a Chancellor's statement "the Court finds the parties lives to be in significant transition and adjustment, so much so that awarding permanent custody to either of the parties would be premature... ", and the lower Court in that case retained jurisdiction to modify the custody agreement at a later date. 11

15 CONCLUSION Rena respectfully requests that this appeal be dismissed for lack of subject matter jurisdiction; or, in the alternative, that same be dismissed due to the matter having been rendered moot by the lower Court's final decision announced August 9, William D. Boerner, Esq., MSB No." Boerner Law Firm, P.C. Attorneys at Law P. O. Box 205 Brookhaven,MS Tel: (601) Fax: (601) Respectfully submitted, PAMELA RENA SMITH BRYANT, Appellee BY:a~ Her Attorney 12

16 CERTIFICATE OF SERVICE I, William D. Boerner, Esq., of Boerner Law Firm, P.C., attorney for Pamela Rena Smith Bryant, Appellee, do hereby certify that I have this date mailed, via United States mail, postage prepaid, a true and correct copy of the foregoing Brief of Appellee to: Hon. Joe Dale Walker Chancellor of the 13 th Chancery Court District P. O. Box 909 Monticello, MS Joe R. Norton, IV, Esq. Matthew P. Kidder, Esq. Kidder & Norton 121 S. Railroad Ave., Suite 203 Brookhaven,MS This the C~day of A~,2012. /J;;:-i!P~ WILLIAM D. BOERNER, ESQ. Boerner Law Firm, P.C. Attorneys at Law P. O. Box 205 Brookhaven,MS Tel: (601) Fax: (601)