Kellen J. Hills v. Abigal S. Manns (Hills)

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

NO. 2022-CA-00774-COA

KELLEN J. HILLS APPELLANT

v.

ABIGAIL S. MANNS (HILLS) APPELLEE

DATE OF JUDGMENT: 01/05/2022
TRIAL JUDGE: HON. MITCHELL M. LUNDY JR.
COURT FROM WHICH APPEALED: DESOTO COUNTY CHANCERY COURT
ATTORNEYS FOR APPELLANT: T. SWAYZE ALFORD
KAYLA FOWLER WARE
ATTORNEY FOR APPELLEE: VANESSA WINKLER PRICE
NATURE OF THE CASE: CIVIL - DOMESTIC RELATIONS
DISPOSITION: AFFIRMED - 12/12/2023
MOTION FOR REHEARING FILED:

BEFORE WILSON, P.J., GREENLEE AND McCARTY, JJ.

McCARTY, J., FOR THE COURT:

¶1. A father appeals the modification of a visitation schedule. He argues the trial court

erred by not dismissing the mother’s petition on the basis of res judicata, not awarding him

attorney’s fees, and awarding her the final decision-making authority.

¶2. We affirm the trial court’s finding that the visitation schedule was not working and

needed further specificity. We likewise affirm that res judicata did not apply, as there were

new circumstances giving rise to the mother’s claim for a change in the visitation schedule,

and the trial court did not abuse its discretion by awarding the mother authority to make final

decisions for the children. And because he did not prevail, the father was not entitled to

attorney’s fees.
BACKGROUND

¶3. Kellen and Abigail Hills had two children during the course of their marriage: a girl

in 2012 and a boy in 2014. They decided to divorce in 2018 and agreed on a “Property

Settlement Agreement.” The PSA granted both parties joint legal custody, with Abigail

having sole physical custody and Kellen having alternating weekend visitation. The PSA

further set out a visitation schedule for holidays, special days, and vacation days from school.

The trial court incorporated the PSA into a final judgment of divorce.

¶4. But the PSA did not specify what time Kellen would return the children the Monday

following his weekend. It only stated that “the Father shall have periods of visitation with

the minor children on alternating weekends of each and every month from Thursday through

Monday morning.” The PSA also did not define what days would be considered a “holiday.”

¶5. And not long after their divorce, this lack of specificity led to conflict between the

parents. There were other problems. Kellen sought to hold Abigail in contempt for making

decisions regarding the children’s school, daycare, and extracurricular activities without his

approval. Abigail filed her own motion for contempt alleging Kellen was causing problems

with the visitation schedule. The trial court denied Abigail’s request to modify the visitation

schedule and ended up finding both parents in contempt for not following the language of

the order.

¶6. Kellen filed a motion for reconsideration, which led to the trial court modifying its

original ruling. The chancellor ordered Abigail to strictly comply with the visitation

schedule, and continued to find her in contempt for violating joint custody requirements to

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keep Kellen informed of extracurricular activities and changes in the children’s education.

Kellen was awarded attorney’s fees and expenses.

¶7. Just four months later, Abigail filed a new petition for contempt and again sought

modification of visitation. She claimed that “since the entry of the last Order, there has been

a material and substantial change in circumstances adversely affecting the minor children,”

and “the parties’ current visitation schedule is no longer workable.” Kellen filed a motion

to dismiss. He argued Abigail’s claims had just been raised and denied by the trial court, so

they should be barred as res judicata.

¶8. Both parents testified at a hearing on the petition. To Abigail, the PSA’s lack of

specificity as to what days qualified as a “holiday” was causing repeated breakdowns. The

PSA stated that “a Monday holiday should be contained in a part of the weekend period of

custody. And should that period be with the Father, his weekend visitation shall end Tuesday

morning.” While Kellen testified this was clear to him, Abigail’s testimony centered on

multiple instances of friction on this point.

¶9. Another major focus of the hearing was whether the drop-off time the Monday after

Kellen’s weekend was too vague to be followed. Counsel for Abigail repeatedly questioned

Kellen about whether he agreed that the PSA was vague. While Kellen largely focused on

the plain text of the PSA in his answers, when asked if he agreed whether “the schedule is

definitely missing some time and specifics,” he conceded that “it does not include every

instance of every exchange time.”

¶10. To Abigail, since the PSA didn’t include times for a drop off, the parents repeatedly

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disagreed over when Kellen was supposed to return the kids on a Monday morning. Abigail

testified she thought Kellen used the vagueness of the PSA against her, stating, “morning can

be whatever he wants it to be.” She further explained that “the biggest thing is the agreement

is not clear on everything.”

¶11. After hearing from both parents and the arguments of their counsel, the chancellor

ultimately found the visitation schedule should be modified. The trial court found the

schedule was “no longer working, and it is not in the best interest of the minor children.”

The new order added clarification to the portions of the previous schedule Abigail claimed

were unclear. The order made clear the visitation requirements for Christmas, Easter,

Thanksgiving, and other school holidays such as Spring Break, including the specific times

the visitation would both begin and end. Last, the trial court determined that Abigail, as the

“primary physical custodial parent,” would have the “final decision making authority” in the

event of any disagreements.

¶12. In January 2022, Kellen filed a motion for reconsideration and a motion for relief that

the chancellor denied. Kellen appealed, and the case was assigned to us for review.

STANDARD OF REVIEW

¶13. Our standard of review in domestic-related cases is limited. In re C.T., 228 So. 3d

311, 315 (¶6) (Miss. Ct. App. 2017). We will not disturb a court’s findings “when supported

by substantial evidence unless the chancellor abused [his] discretion, was manifestly wrong

or clearly erroneous, or an erroneous legal standard was applied.” Id. (quoting Bowen v.

Bowen, 107 So. 3d 166, 169 (¶6) (Miss. Ct. App. 2012)). However, we review a chancellor’s

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interpretation and application of the law de novo. C.T., 228 So. 3d at 315 (¶6).

DISCUSSION

I. The chancellor did not err in finding that the visitation schedule
was no longer working and should be modified.

¶14. Kellen argues that the chancellor erred when he found the visitation schedule was no

longer working and should be modified. Kellen asserts that the previous Order followed

what the parties agreed to in the PSA, and that nothing had changed since the last order was

entered in August of 2020.

¶15. As this Court has explained, “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.” Moreland v. Spears, 187 So. 3d 661, 666 (¶17) (Miss. Ct. App. 2016)

(internal quotation marks omitted); see also Cox v. Moulds, 490 So. 2d 866, 869 (Miss. 1986)

(holding “all that need be shown is that there is a prior decree providing for reasonable

visitation rights which isn’t working” and provisions should be “made specific rather than

flexible and attendantly vague”).

¶16. We have affirmed in a similar case to this one when there was proof of a breakdown

in the visitation schedule. C.T., 228 So. 3d at 317 (¶16). On appeal the father “argue[d] that

the chancellor’s modification was an abuse of discretion because neither party requested the

modification or presented evidence that the visitation schedule was not working.” Id. But

we found “the record is replete with evidence that the visitation schedule was not working,”

the father had claimed he was being denied visitation, and the trial court “noted that there

was some confusion between the parties regarding the details of visitation under the agreed

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order.” Id. We found this was a sufficient basis to modify the visitation schedule “[g]iven

the chancellor’s broad discretion to determine the specific times for visitation[.]” Id.

(internal quotation marks omitted).

¶17. The proof in this case surpasses what we affirmed in C.T. While Kellen argues that

the visitation schedule should not be modified because nothing has changed since the PSA

was approved by both sides, the proof at trial showed otherwise. Abigail testified the lack

of specificity in the PSA was leading to breakdown after breakdown and friction between her

and Kellen. Abigail further testified that the two parties disagreed even over what “morning”

was, saying, “[M]orning can be whatever [Kellen] wants it to be.” To her, “the biggest thing

is the agreement is not clear on everything.” Indeed, even Kellen agreed on cross that the

schedule “does not include every instance of every exchange time.”

¶18. Accordingly, we find that the chancellor did not abuse his discretion in modifying the

visitation schedule. There was substantial evidence supporting the chancellor’s finding the

schedule was no longer working. And the order modifying visitation only had the effect of

further defining Christmas, Easter, Thanksgiving, and other “holiday” times, and including

more detail as to what times each parent would have the children during those time periods.

Therefore, we find the chancellor did not err in modifying the visitation schedule because

there was substantial evidence supporting that it was no longer working.

II. Res judicata did not apply.

¶19. Kellen argues Abigail’s petition for modification of visitation already had been

previously addressed twice by the trial court, so it should have been barred by res judicata.

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¶20. “The doctrine of res judicata bars parties from litigating claims within the scope of

the judgment in a prior action. This includes claims that were made or should have been

made in the prior suit.” Brown v. Brown, 329 So. 3d 544, 561 (¶49) (Miss. Ct. App. 2021)

(quoting Hill v. Carroll County, 17 So. 3d 1081, 1084 (¶8) (Miss. 2009)). We recognize “the

familiar rule that a judgment for alimony, custody, or support may be modified only upon a

showing of a post-judgment material change of circumstance,” which “is a recognition of the

force of res judicata in divorce actions.” Stewart v. Stewart, 309 So. 3d 44, 81 (¶118) (Miss.

Ct. App. 2020) (quoting Bowe v. Bowe, 557 So. 2d 793, 794 (Miss. 1990)).

¶21. While res judicata can apply to claims of this type, we have previously held that “no

decree of alimony or child support is ever truly a final judgment, but always subject to

modification based upon a material change of circumstances.” Austin v. Austin, 981 So. 2d

1000, 1005 (¶16) (Miss. Ct. App. 2007). In other words, if a party can provide evidence of

a subsequent and material change in circumstances, a prior order denying relief will not bar

a successive petition. Id. at (¶17) (finding “that the doctrine of res judicata does not act as

a bar to the April 3, 2006, modification” despite the father previously seeking modification

in two prior attempts, “[a]s this change in circumstances occurred after the February 20,

2002, decree”).

¶22. Abigail had previously petitioned the trial court for a change in the visitation schedule,

and that relief had been denied. But in the hearing for her renewed petition, she raised new

facts not previously addressed by the trial court’s prior orders, including evidence of recent

breakdowns regarding drop-off times and confusion over how to interpret “holidays” such

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as Spring Break. As in Austin, we find that res judicata did not bar her renewed claim for a

modification of the visitation schedule since it was based on a change in circumstances after

the prior order.

III. The chancellor did not err in awarding Abigail the final-decision
making authority.

¶23. Kellen argues the parties share joint legal custody and therefore share decision-making

rights, so there was no basis for the chancellor to award final decision-making authority to

Abigail.

¶24. Parents who share “joint legal custody” necessarily “share the decision-making rights,

the responsibilities, and the authority relating to the health, education and welfare of a child.”

Miss. Code Ann. § 93-5-24(5)(e) (Rev. 2021). “And unless allocated, apportioned or

decreed, the parents or parties shall confer with one another in the exercise of decision-

making rights, responsibilities and authority.” Id. (emphasis added).

¶25. “Mississippi statutory law and jurisprudence recognize that the chancellor may indeed

allocate decision-making and duties to each parent sharing joint legal custody.” C.T., 228

So. 3d at 316 (¶9) (quoting Carpenter v. Lyles, 120 So. 3d 1031, 1037 (¶22) (Miss. Ct. App.

2013)). Our caselaw favors the custodial parent having the discretion for decisions regarding

the “child’s upbringing, including his education and health and dental care.” Id. (citing

Clements v. Young, 481 So. 2d 263, 267 (Miss. 1985)).

¶26. This Court addressed a similar argument in C.T. In that case, the father argued the

chancellor erred when he found the mother, as the custodial parent, was entitled to make

decision regarding where the child would attend school even though the parties shared joint

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legal custody. Id. at 315 (¶7). This Court explained that the chancellor allocated to the

mother the “discretion to make a determination about where the child goes to school.” Id.

at 316 (¶8). “The chancellor was well within his discretion to allocate this decision making

to one parent.” Id. at (¶9). Therefore, this Court found the chancellor did not abuse his

discretion, and the issue was without merit. Id. at (¶10).

¶27. Here, the chancellor acknowledged the parties have joint legal custody and must

confer on certain issues. However, the chancellor allocated “final determining decision

making authority” to Abigail “as the primary physical custodial parent, in the event of a

disagreement.” Per precedent, the chancellor was well within his discretion to allocate final

decision-making authority to one parent.

IV. The chancellor did not err in not awarding Kellen attorney’s fees.

¶28. Kellen argues that the chancellor erred when he ruled that each party was required to

pay his or her own attorney’s fees. On appeal, he asks us to reverse this finding.

¶29. “The award of attorney’s fees and court costs is a matter within the sound discretion

of the trial court.” Weston v. Mounts, 789 So. 2d 822, 827 (¶21) (Miss. Ct. App. 2001). If

a party does not prevail on the claim, the party is “therefore not entitled to an award of

attorney’s fees.” Id. (finding that the husband was not in contempt); Miley v. Daniel, 37 So.

3d 84, 87 (¶8) (Miss. Ct. App. 2009) (explaining “we are not prepared to reverse a

chancellor’s decision to award a portion of attorney’s fees when the requesting party did not

prevail with the underlying claim”).

¶30. Because Kellen did not prevail in the court below, and we have affirmed the trial

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court’s ruling in all respects, he is not entitled to an award of attorney’s fees.

CONCLUSION

¶31. For the reasons set out above, we affirm the trial court’s order.

¶32. AFFIRMED.

BARNES, C.J., CARLTON AND WILSON, P.JJ., GREENLEE,
WESTBROOKS, McDONALD, LAWRENCE, SMITH AND EMFINGER, JJ.,
CONCUR.

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