281 So.3d 1002
Miss. Ct. App.2019Background
- Jeremy and Shanna Hayes divorced in December 2015; they share one minor child, K.H.
- After divorce, repeated disputes arose: allegations of abuse, multiple DHS reports, and frequent denials of Jeremy’s court-ordered visitation by Shanna.
- A guardian ad litem (GAL) investigated, reported that Shanna made unsubstantiated abuse reports, took inappropriate photos of K.H., and alienated the child from Jeremy; GAL recommended custody to Jeremy and joint legal custody.
- The chancery court found a material change in circumstances adversely affecting K.H., modified primary physical custody to Jeremy, and awarded standard visitation to Shanna.
- The court found Shanna in civil contempt and constructive criminal contempt for willfully denying visitation on ten occasions, ordered fines and jail terms (suspended), and required Shanna to reimburse attorney and GAL fees; execution was suspended so long as she complied.
- Shanna moved to amend the findings; the court denied relief. She appealed, raising due-process, unclean-hands, and sufficiency-of-evidence challenges.
Issues
| Issue | Plaintiff's Argument (Shanna) | Defendant's Argument (Jeremy) | Held |
|---|---|---|---|
| Whether trial court erred in finding constructive criminal contempt | Shanna: lacked notice/specification; due-process violated; entitled to jury given aggregate penalties | Jeremy: contempt citations were litigated; Shanna failed to object at trial and waived procedural defects | Court: affirmed criminal contempt; Shanna waived recusal/notice objections by not timely objecting; evidence supported willful denial of visitation |
| Whether doctrine of unclean hands bars Jeremy from attorney’s-fee award | Shanna: Jeremy had "unclean hands" (portrayal in hearings/failed payments) so cannot recover fees | Jeremy: Shanna’s misconduct forced him to incur attorney and GAL fees; fees are to make him whole | Court: rejected unclean-hands defense; awarded fees to make Jeremy whole given Shanna’s conduct |
| Whether material change in circumstances justified custody modification | Shanna: denial of visitation alone insufficient; modification contrary to evidence | Jeremy: repeated visitation denials, false abuse allegations, and GAL findings harmed the child’s welfare | Court: affirmed custody change to Jeremy; found clear-and-convincing evidence of material adverse change and best interest of child |
Key Cases Cited
- Edwards v. Zyla, 207 So. 3d 1232 (Miss. 2016) (standard of review for chancery factual findings)
- Dennis v. Dennis, 824 So. 2d 604 (Miss. 2002) (distinguishing civil and criminal contempt; procedural protections for constructive criminal contempt)
- Graves v. State, 66 So. 3d 148 (Miss. 2011) (criminal-contempt protections and right to jury when penalties exceed thresholds)
- Ash v. Ash, 622 So. 2d 1264 (Miss. 1993) (refusal of visitation and material-change analysis; totality of circumstances)
- McDonald v. McDonald, 39 So. 3d 868 (Miss. 2010) (parental behavior affecting child’s mental/emotional health can justify custody change)
- Latham v. Latham, 261 So. 3d 1110 (Miss. 2019) (failure to timely seek recusal is waiver/implied consent)
- In re McDonald, 98 So. 3d 1040 (Miss. 2012) (procedural safeguards for contempt review)
- Bounds v. Bounds, 935 So. 2d 407 (Miss. Ct. App. 2006) (attorney’s fees in contempt actions awarded to make prevailing party whole)
- Mabus v. Mabus, 910 So. 2d 486 (Miss. 2005) (intentional misconduct causing unnecessary expense justifies fee awards)