IN THE SUPREME COURT OF MISSISSIPPI NO. 2018-CA-00962-SCT APRIL QUEN GARNER (JAIME GARCIA) v. JUDI L. GARNER, RONALD CLYDE FOX AND DAVID SMITH DATE OF JUDGMENT: 04/16/2018 TRIAL JUDGE: HON. PERCY L. LYNCHARD, JR. COURT FROM WHICH APPEALED: DESOTO COUNTY CHANCERY COURT ATTORNEY FOR APPELLANT: JERRY WESLEY HISAW ATTORNEY FOR APPELLEES: GORDON C. SHAW, JR. NATURE OF THE CASE: CIVIL - CUSTODY DISPOSITION: AFFIRMED IN PART; REVERSED AND RENDERED IN PART; AND REVERSED AND REMANDED IN PART - 10/03/2019 MOTION FOR REHEARING FILED: MANDATE ISSUED: EN BANC. GRIFFIS, JUSTICE, FOR THE COURT: ¶1. April Garner appeals the chancellor’s custody modification awarding custody of her minor child to the child’s uncle, the award of grandparent visitation to the child’s step- grandfather, a finding of contempt, and the assessment of various fees and costs. Because the chancellor properly modified custody and found April in contempt but lacked the authority to award grandparent visitation to a step-grandparent, we affirm in part and reverse and render in part. We reverse and remand in part because the chancellor erred, in part, in the assessment of fees and costs. FACTS AND PROCEDURAL HISTORY ¶2. Andrew1 was born in August 2009 to April Garner.2 On November 8, 2010, when Andrew was fifteen months old, April voluntarily relinquished physical custody of Andrew to her brother Jason. At that time, Jason was dating and living with David Smith. Jason and David later married on September 20, 2012. ¶3. April was granted supervised visitation with Andrew, by agreement, on October 1, 2012. In January 2013, Andrew began treatment with Dr. Peter Zinkus, a clinical psychologist specializing in behavioral- and emotional-development disorders in children. Dr. Zinkus diagnosed Andrew with separation-anxiety disorder due to the “alternating visitation.” ¶4. On December 20, 2013, by agreed order, April regained legal and physical custody of Andrew. The order stated that the parties “recognize[d] that in order for [Andrew] to successfully handle his separation anxiety he must maintain a relationship with David and David must have a secure and regular place in the child’s life.” The agreed order provided David extensive visitation, which April acknowledged was “similar to what a biological parent would get.” ¶5. At some point in 2013, April began a relationship with Pablo Garcia. Their daughter Allison3 was born on November 5, 2014. ¶6. In November 2014, April withheld visitation with Andrew from David. As a result, 1 For privacy purposes, we substitute a fictitious name for the minor child. 2 Andrew’s natural father’s parental rights were terminated. 3 For privacy purposes, a fictitious name is substituted for the minor child. 2 David moved to enforce the December 20, 2013 agreed order. In March 2015, the chancellor upheld the agreed order and visitation continued between David and Andrew. ¶7. In September 2015, Jason died from complications of HIV.4 ¶8. On September 19, 2016, David filed an “amended petition for emergency custody and to cite [April] for contempt.”5 In the petition, David alleged that based on various events and admissions, April was “unfit to ...
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