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Date: 04-18-2022
Case Style:
Andrew Gibson v. Ashley Gibson
Case Number: 2020-CA-01377-COA
Judge: Donna M. Barnes
Court:
IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
On appeal from The HARRISON COUNTY CHANCERY COURT
Plaintiff's Attorney: ASHLEY GIBSON (PRO SE)
Defendant's Attorney:
Description:
Jackson, MS - Divorce lawyer represented appellee with filing an answer and counterclaim seeking primary physical custody
¶1. Ashley and Andrew Gibson were married on August 28, 2011, and separated on or
about June 2, 2014. They had one minor child born of the marriage, “James,” born in 2011.1
On September 29, 2015, Ashley filed a complaint in the Harrison County Chancery Court,
seeking a divorce on the ground of habitual cruel and inhuman treatment or, in the
alternative, irreconcilable differences. She sought full legal and physical custody of the
child, as well as child support. An agreed temporary order was entered on December 8,
2015, giving Ashley temporary custody and setting forth supervised visitation between
1
A pseudonym has been used to protect the minor child’s identity.
Andrew and James. Because Andrew was seeking treatment at the Heartland Rehabilitation
Facility in LaBelle, Missouri,2
his visitation was to occur while he was home during
Christmas of 2015, and the visitation was to be supervised by his sister, Marilyn Whitehead.
The chancery court also ordered Andrew to pay $50 in weekly child support.
¶2. On December 30, 2015, Andrew filed an answer and counterclaim seeking, in part,
primary physical custody of James. In spring of 2016, Ashley, a caregiver and housekeeper,
was arrested and charged with two counts of grand larceny for allegedly stealing from her
employers. On May4, 2016, Andrew—newlyreleased fromthe rehabilitation facility—filed
a petition seeking ex parte emergency custody of James on May 4, 2016. The petition noted
Ashley’s recent arrest and also alleged that Ashley had been using drugs and “living with a
member of the opposite sex.” The petition also claimed that Ashley had threatened to
abscond with the child. By order signed on May 4, 2016, the former chancellor over the
proceedings, Judge Sandy Steckler, gave temporary custody of James to Ethel Gibson,
Andrew’s mother and James’s paternal grandmother. The court’s order denied Ashley any
visitation and contained a restraining order against her.
¶3. Ashley filed a motion to set aside the order, denying the allegations of drug use, living
with another man, and any threats to abscond with James. A hearing on the motion was held
on May 6. The court set aside its prior order, noting that it contained errors. The court also
determined there was no reason “why [Ashley] shouldn’t have unfettered visitation with the
child.”
2 Andrew had two DUIs—one in 2012 and one in 2014. For the second one, he was
incarcerated for six months and then released to the rehabilitation facility.
2
¶4. Andrew testified at the June 14, 2016 hearing that Ashley had been “addicted” to
hydrocodone during their relationship. However, he had no personal knowledge whether she
still continued to take any prescription medication; he also admitted that any threats Ashley
made about absconding with James were made more than eighteen months prior to the
current proceedings. Andrew testified that during his time at the rehabilitation facility, he
had been given updates as to the child’s doctor’s visits and school progress. Andrew said
Ashley had agreed to put the child on ADHD medication, even though he had been against
doing so.
¶5. Ashley testified that she had her own residence and, despite accusations otherwise,
did not reside with her boyfriend, Ben Bosarge. She currently worked for Ben’s mother,
taking care of her home and pets. Ashley also cared for Ben’s three children (for whom he
has physical custody) while Ben was at work. Ashley admitted that she had taken
hydrocodone and Lortab prescribed to her after an automobile accident. But she said she
went to an outpatient clinic in 2015 “to get[] rid of all that” and denied taking more than what
was prescribed. She further alleged that Andrew had taken some of her medicine without
telling her. Ashley expressed appreciation for the help that Ethel and Marilyn had given her
while Andrew was in treatment. She also agreed that James “needs his daddy” and hoped
they could work together in scheduling visits with Andrew. When asked by the chancellor
about the pending felony charges against her, Ashley said she was advised by her defense
attorney to plead the Fifth Amendment.
¶6. Roscoe Phillips, Ashley’s father, testified that he and his wife were able to help take
3
care of James. Although Andrew had claimed Roscoe had an alcohol problem, Roscoe
denied this accusation, saying that he holds a commercial driver’s license and quit drinking
years ago. Ethel, Andrew’s mother, also testified that she had no medical issues that would
prevent her from taking care of the child. She expressed concern that Ashley’s moving to
different places over the last two years did not provide a stable home for James. Marilyn,
Andrew’s sister, testified that she had kept the child for approximately ninety days during
2015 and approximately thirty days in 2016, primarily on the weekends.
¶7. On May 20, 2016, the chancery court entered another temporary order, vacating the
prior order and (again) placing James in Ethel’s custody. Ashley was awarded visitation on
alternating weekends and weekly telephonic visitation. Because Andrew resided with Ethel,
the order did not address Andrew’s visitation. On November 16, 2016, the chancery court
entered a new temporary order nunc pro tunc to May 20, 2016, awarding Ashley and Andrew
alternating weekend visitation, daily telephonic visitation, and one weekday visit. The court
also ordered them to pay Ethel child support and to select a guardian ad litem (GAL).
¶8. After issues finding an available GAL, the chancery court eventually appointed
Vonder Bruegge as the GAL on January 27, 2017. On June 15, 2017, the court entered an
agreed temporary order nunc pro tunc to May 20, 2017, awarding Ashley three weeks of
summer visitation with James and both parents access to the child’s doctor’s appointments.
¶9. On July 10, 2018, Andrew filed an amended answer and counterclaim following
Ashley’s guilty plea, sentencing, and incarceration on two felony counts of grand larceny.
Following a hearing, the chancery court entered a temporary order on October 17, 2018, nunc
4
pro tunc to March 12, 2018. Because Andrew had recently been arrested for another DUI,
the order suspended Andrew’s overnight visitation. The temporary order also assessed
Andrew $1,114 in child-support arrearage.
¶10. Ethel, Marilyn, and Marilyn’s husband, William Whitehead, (the movants) filed a
motion seeking permanent guardianship of James. Andrew responded on February 7, 2019,
opposing the motion and asserting a counterclaim of contempt for interfering with his
relationship with the child. In her February 26 response, Ashley conditionally agreed that
James should remain in the movants’ care. Following a conference between counsel and the
GAL, the court entered an order on May 14, 2019, which noted that James had been under
the Whiteheads’ care for almost three years and that Ashley was expected to remain
incarcerated until October 2019.3 The court denied Ashley’s request to name additional
guardians. Andrew was awarded unsupervised visitation on Sundays for three hours and
was encouraged to participate in the child’s therapy and to cooperate with the GAL’s
investigation.
¶11. On October 14, 2019, Andrew filed a motion for substitution of the GAL, claiming
that the GAL “had not performed a home study” for Andrew and that he had “not been able
to make contact with the [GAL].” The movants joined Andrew’s motion, noting the GAL
had “apparently closed his law practice.” The chancery court entered an order on November
20, 2019, relieving the GAL from his duties. However, the court determined that no new
GAL would be appointed. The order also modified visitation between James and his parents.
3
It is noted in the record that Ashley was incarcerated from September 2017 to
September 2019.
5
Specifically, upon her release from incarceration, Ashley would receive alternating Sunday
afternoons. Andrew was awarded alternating weekends from Saturday morning to Sunday
morning. The matter was set for trial.
¶12. On May 28, 2020, the parties consented to a divorce on the ground of irreconcilable
differences, and the court entered a final judgment approving the “written propertysettlement
agreement,” which waived any claim to alimony or support. No change was made to
guardianship or custody in the order.
¶13. A trial was held on September 10, 2020, and October 26, 2020, before a new
chancellor, Judge Margaret Alfonso. Ashley’s probation officer testified that Ashley was no
longer incarcerated and that she had “gone over and beyond to meet the requirements and
conditions of her parole” and was “an ideal probationer.” The probation officer also said
Ashley would likely complete her parole by the end of the following year.
¶14. Marilyn, Andrew’s sister, testified that the child had been living with her and her
husband since May 2016. She said James has ADHD and was “on the spectrum,” albeit
“highly functional.” James sees a psychiatrist every four to six weeks. Marilyn said that
Ashley had regularly attended the appointments with her since being released from custody;
Andrew had only gone a couple of times. James, now nine years old, attends public
elementaryschool and is in “gifted” classes. But Marilyn expressed that he needs “somebody
that can be involved in school [and] . . . that can stay on top of things[.]”
¶15. Marilyn stated that Andrew’s visitation with the child had been “sporadic,” as he had
gotten another DUI in 2017 and gone to work out of town for six to seven weeks at a time.
6
She also expressed concern about Andrew’s prior felonies from over ten years ago for
possession with intent and aggravated assault. Marilyn said Andrew had a business that sold
a drug, Kratom, which she explained “is a drug that has a lot of the same effects as
opiates[.]” Although she had not been to either parent’s home, Marilyn said that Ashley had
since married Ben Bosarge and that their family was nice. She also said Ashley had been
attending church regularly with them; Andrew attends another church. Marilyn
acknowledged that Ashley had come over “a couple of days a week” to help James with
homework when school was closed due to COVID and had been involved with James’s Boy
Scout troop. Marilyn opined that Ashley should have custody, particularly noting that the
mother “act[ed] more responsible” after serving her prison term. She did admit on crossexamination that Ashley had not paid her any child support. Marilyn also said that James
loves both parents and enjoys his visits with them.
¶16. Ashley testified that she will be on probation for the next five years. Even while
incarcerated, she kept in touch with Marilyn and made sure she “never missed a Christmas
or birthday[.]” She also would record herself reading books and send those to James. Ashley
noted that she had taken care of James until he was approximately five years old. Ashley
now works as an executive assistant and has a family member experienced in special-needs
children that can pick up James from school when she is at work. She admitted that she had
been addicted to pain pills but she went through a recovery program during her incarceration.
¶17. Ashley’s husband, Ben, testified that he and Ashley had been seeing one another
“[s]ince 2014.” He has worked for a construction company for twenty years. Ben said
7
Ashley got “along quite well” with his ex-wife, but he has never had a conversation with
Andrew. He admitted that he had DUIs approximately twenty years prior.
¶18. Andrew testified that he worked at the Kratom Shack and said that Kratom is simply
“a plant that’s akin to the coffee plant” and has “pain relieving effects.” He said that his
relationship with his sister, Marilyn, was “nonexistent,” but agreed that James should still
have a relationship with her.
¶19. The chancery court entered its final judgment of custody and support on November
24, 2020. Thoroughly analyzing the applicable Albright factors,4
the court concluded that
Ashley “should be awarded paramount physical custody of [James] subject to the visitation
rights of Andrew.” The court ordered the parties to work with the Whiteheads and James’s
therapist in helping the child transition to the new custody arrangement during the upcoming
Christmas school break. Andrew was awarded visitation on the first, third, and fifth full
weekends of the month; visitation for various holidays was also outlined.
¶20. Andrew alleges on appeal that the chancery court’s determination of custody was
erroneous on the bases of the GAL’s failure to file a report and the court’s failure to appoint
a replacement GAL. Finding no error, we affirm.
4 The Albright factors are: (1) the age, health, and sex of the child; (2) “continuity of
care”; (3) “parenting skills”; (4) the parties’ “willingness and capacity to provide primary
child care”; (5) the parties’ employment responsibilities; (6) the parties’ “physical and
mental health and age”; (7) the “emotional ties of parent and child”; (8) “moral fitness” of
the parties; (9) “the home, school and community record of the child”; (10) the child’s
preference, if the child is at least twelve years old; (11) the stability of the home environment
and employment of each party; and (12) any “other factors relevant to the parent-child
relationship” or the child’s best interest. Albright v. Albright, 437 So. 2d 1003, 1005 (Miss.
1983). Andrew makes no challenge to any specific finding in the court’s Albright analysis.
8
STANDARD OF REVIEW
¶21. A chancery court’s finding will not be disturbed on appeal “when supported by
substantial credible evidence unless the chancery court has abused its discretion, was
manifestly wrong [or] clearly erroneous,” or applied an erroneous legal standard. Hackler
v. Hackler, 296 So. 3d 773, 776 (¶12) (Miss. Ct. App. 2020) (quoting Forrest v. McCoy, 941
So. 2d 889, 890 (¶7) (Miss. Ct. App. 2006)).
DISCUSSION
¶22. Andrew’s first allegation of error concerns the GAL’s failure to submit a written
report. Ashley did not file an appellee’s brief. Generally, the “failure of an appellee to file
a brief is tantamount to confession of error and will be accepted as such unless the reviewing
court can say with confidence, after considering the record and brief of [the] appealing party,
that there was no error.” Rogillio v. Rogillio, 101 So. 3d 150, 153 (¶12) (Miss. 2012)
(quoting Dethlefs v. Beau Maison Dev. Corp., 458 So. 2d 714, 717 (Miss. 1984)). “However,
reversal is not automatic nor required.” Wade v. Wade, 967 So. 2d 682, 683 (¶4) (Miss. Ct.
App. 2007). “Where issues of child custody are involved, we are ‘compelled to review the
record,’ notwithstanding the appellee’s failure to file a brief.” Id. at 683-84 (¶4) (quoting
Mosley v. Atterberry, 819 So. 2d 1268, 1272 (¶17) (Miss. 2002)).
¶23. As noted, the chancery court appointed the GAL, Bruegge, in January 2017. The
GAL was “ordered and directed to file a written report with the [c]ourt, which may include
recommendations.” In Andrew’s February 7, 2019 response to the guardianship motion, he
specifically requested that the GAL “perform a home study of his home” and “report to this
9
[c]ourt as to why custody should not be placed with him or, in the alternative, why he cannot
have extended visitation[.]”
¶24. We note that this case does not involve allegations of abuse or neglect, which would
require appointment of a GAL under Mississippi Code Annotated section 93-5-23 (Rev.
2018). Therefore, the GAL did not have any statutory duty to file a written report. See Miss.
Code Ann. § 43-21-121 (Rev. 2015).
¶25. Although the GAL did not submit a written report or recommendation, the GAL did
testify before the chancery court at the June 29, 2017 hearing. Further, at the March 12, 2018
hearing, counsel for Andrew acknowledged that Andrew had “not been forthcoming with a
visit address for Mr. Vonder Bruegge, the GAL, to go to his home to make a home visit,” but
the address had been provided to the GAL just prior to that hearing. The GAL explained,
“And, Judge, I could have probably found his address, but mywhole thing is, he doesn’t have
the kid so why should I go hunt down where he lives. . . . So I didn’t – when he wouldn’t
cooperate, I didn’t try to track him down.” (Emphasis added). The GAL had visited both
Ethel’s and Marilyn’s homes and had met with the child. The chancellor admonished
Andrew to work with the GAL and allow the GAL to visit Andrew’s residence “to see if it’s
suitable.” Although the GAL had been relieved of his duties at the time of trial, photographs
of Andrew’s home were introduced into evidence, as well as a parenting-class certificate.
Andrew also admitted that the GAL had performed a home visit in October 2018.
¶26. The Mississippi Supreme Court has held:
In Mississippi jurisprudence, the role of a [GAL] historically has not been
limited to a particular set of responsibilities. In some cases, a [GAL] is
10
appointed as counsel for minor children or incompetents. . . . In others, a
[GAL] may serve as an arm of the court—to investigate, find facts, and make
an independent report to the court. The [GAL] may serve in a very limited
purpose if the court finds such service necessary in the interest of justice.
Furthermore, the [GAL’s] role at trial may vary depending on the needs of the
particular case. . . . In some cases, the [GAL] may be called to testify, and in
others, the role may be more limited.
S.G. v. D.C., 13 So. 3d 269, 280-81 (¶47) (Miss. 2009). In this instance, we find that the
GAL’s failure to submit a written report to the chancery court did not constitute reversible
error.
¶27. Andrew also alleges that the court’s decision not to appoint another GAL was an
abuse of discretion and constituted a failure “to fully protect the interests of the child.” We
find no merit to this claim. A court’s decision to appoint a GAL is discretionary in a custody
proceeding unless there have been charges of abuse or neglect. Kaiser v. Kaiser, 281 So. 3d
1136, 1141 (¶18) (Miss. Ct. App. 2019). As discussed, there were no such accusations
mandating the appointment of a GAL. This Court further held in Kaiser that because the
appointment of the GAL in that case was “discretionary,” the chancery court’s decision to
allow “the GAL to withdraw without submitting a final custody recommendation” did not
constitute error. Id. at 1142 (¶21).
Outcome: Accordingly, upon review of the record, we find no error and affirm the final
judgment.
Plaintiff's Experts:
Defendant's Experts:
Comments: