IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI CASE NO CA COA MICHAEL CHADWICK SMITH, APPELLANT KIMBERLY MARIE MULL, APPELLEE

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1 E-Filed Document Apr :56: CA COA Pages: 9 IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI CASE NO CA COA MICHAEL CHADWICK SMITH, APPELLANT v. KIMBERLY MARIE MULL, APPELLEE On Appeal from the Chancery Court of Lee County, Mississippi Cause No M Honorable Jacqueline Estes Mask, Chancellor APPELLANT S REPLY BRIEF Appellant requests oral argument. JAK M. SMITH, MBN 7529 JAK M. SMITH, P.A. 357 North Spring Street Post Office Box 7213 Tupelo, Mississippi Telephone: (662) Facsimile: (662) ATTORNEY FOR APPELLANT

2 TABLE OF CONTENTS TABLE OF CONTENTS i TABLE OF AUTHORITIES ii Statement of Relief Sought Argument CERTIFICATE OF SERVICE iii -i-

3 TABLE OF AUTHORITIES CASES: Ellis v. Ellis, 840 So.2d 806, 812 (Miss. Ct. App. 2003) Varner v. Varner, 666 So.2d 493, 497 (Miss. 1995) Westerburg v. Westerburg, 853 So.2d 826 (Miss. Ct. App. 2003) at OTHER AUTHORITIES: Merriam Webster Dictionary ii-

4 STATEMENT OF RELIEF SOUGHT ISSUE NO. I. In the original Opinion and Judgment of divorce (R ), the Chancellor ordered: The parties shall refrain from using alcohol or having unrelated overnight guests of the opposite sex in the presence of the children. Further, the parties shall not allow others, including family members, to conduct such activities in the presence of the minor children. (R.120) No one contends the Appellant (hereinafter referred to as Mike ) was drinking in the presence of the minor children. The Chancellor erred by finding Mike in contempt of court for taking his two children to a neighborhood cookout where some guests were drinking alcohol. Since Mike had no control over the people at the party at another person s house, this Court should reverse and render the Chancellor s decision. ISSUE NO. II: If Mike was not in contempt of the Court, then the Chancellor s opinion that Mike pay his former wife $ in attorney fees because she prevailed on one of the four issues she raised, should be reversed. ISSUE NO. III. Making the children travel an unnecessary 150 miles on each visitation trip is dangerous and not in the best interest of the children. This Court should remand this issue to the Chancellor to review the judgment as it relates to any visitation with the minor children when Mike is in Kentucky and is either picking up the children or taking them to his former wife, Kim Mull Smith (hereinafter Kim ). ARGUMENT ISSUE NO. 1: In the initial divorce trial, the Chancellor did not find that either of the parties had an alcohol problem. However, as a preventive measure, the Court inserted language in the original -1-

5 Opinion and Judgment of divorce (R ), presumably as a protection as it related to alcohol. The Court required two things: 1. The parties shall refrain from using alcohol or having unrelated overnight guests of the opposite sex in the presence of the children. (R.120) This language is clear and is not at issue in this appeal. At no time has anyone contended that Mike was drinking in the presence of the minor children. 2. The Court added one other provision: Further, the parties shall not allow others, including family members, to conduct such activities in the presence of the minor children. (R.120) 3. How would a reasonable person interpret... shall not allow others? In this requirement, the operative word is obviously allow. The Merriam Webster Dictionary defines allow in this connotation, as permit and gives as an example: doesn t allow people to smoke in his home. Therefore, the Chancellor s use of the verb (shall not) allow in the normal connotation of shall not permit naturally requires the person disallowing an action to have control over the persons allowed or disallowed to do or not do something in its use as a transitive verb. 4. The Chancellor found Mike to be in wilful contempt of Court for taking his children to a neighbor s party, at which some persons at the party over whom Mike had no control were drinking alcohol. It should be noted that nothing in the Chancellor s Opinion and Judgment required Mike to remove the children from being exposed to alcohol. 5. After finding Mike in contempt for taking the children to the neighbor s party, the Chancellor issued a supplemental opinion that clarified the original Opinion and Judgment. The Chancellor explained that Mike could not take the children to a private social event at which alcohol was served, but he could take the children to an event open to the public at which alcohol was served. One could argue that if this clarifying language had been in the original Judgment, that it would have given Mike some guidance as to what he could or could -2-

6 not do. To be in contempt of court, the violation must be wilful. See case of Westerburg v. Westerburg, 853 So.2d 826, 828 (Miss. Ct. App. 2003): Before a party may be held in contempt for failure to comply with a judgment, the judgment must be complete within itself... leaving open no matter or description or designation out of which contention may arise as to meaning. Davis v. Davis, 829 So.2d 712, 714, (Miss. Ct. App. 2002). (Quoting Wing v. Wing, 549 So.2d 944, 947 (Miss. 1989)). A person is entitled to be informed with a high degree of clarity as to exactly what her obligations are under a court order before she can be found in contempt for wilfully disobeying that order. Switzer v. Switzer, 460 So.2d 843, 846 (Miss. 1984). Westerburg at Appellee s Brief offers a perfect example of the confusion inherent in the use of the Chancellor s language. In her Brief, Kim set up a series of hypothetical straw men that do or do not violate the Chancellor s Opinion and Judgment: Kim said that she finds the Chancellor s order to be very clear and unambiguous. Once again, looking at these situations from the children s view, the answers are many times abundantly clear: * Are mom and dad condoning the consumption of alcohol in front of children if they take us to Outback to eat when no one is drinking at our table - no. * What if they had friends who were sitting at our table drinking alcohol - yes. * What if we went to an Ole Miss football game - no. * What if we walked through the Grove at Ole Miss - no. * What if we all sat in a tent in the Grove with people drinking in our tent - yes. * What if we ran in the Gumtree race - no. * What if we all sat down in the beer tent at the Gumtree festival - yes. [Appellee's Brief, p. 15] However, in the Chancellor s clarifying Opinion, the Chancellor said that having the children around alcohol is acceptable if it is in a place open to the public : "For the sake of clarify with regards to Michael's arguments on this issue, this ruling comprehends only the use of alcohol at the private social gatherings submitted in the proof in the underlying hearing and should not be construed by the parties to encompass events and venues open to the general public not at issue at this time." (TR 321) -3-

7 A beer tent at the Gumtree run is open to the public and acceptable to the Court, but apparently not to Kim. According to Kim's "clear" example, if someone walks into your tent at the Grove at Ole Miss on a football day, with a drink in their hand, this would make you in contempt of court. This is absurd and not what the language of the original Opinion required. We live in a society in which the use of alcohol is legally allowed in many social places. The Chancellor s language that neither party shall allow others to consume alcohol requires a clear control of those persons - such as at your home in which you can control the use of alcohol. In her Brief, Kim argues that, Michael admitted that he went over to his friend s house and allowed others to drink in the presence of his children. [Appellee s Brief, p. 16] Kim's argument that Mike allowed others to drink in the presence of the children is just not correct any more than anyone could walk into Outback Restaurant and do the opposite, i.e., tell everyone in the restaurant not to drink. The Chancellor did not state in her Opinion and Judgment that the children could not be around alcohol or that once exposed to alcohol in an area open to the public that they had to be removed, as Kim argued in her brief. This Court should reverse and render the Chancellor's Opinion. ISSUE NO. II: Attorney fees should not have been awarded since Mike was not in contempt. If this Court finds that Mike was not in contempt, then no attorney fee should be awarded. See Varner v. Varner, 666 So.2d 493, 497 (Miss. 1995). ISSUE NO. III: Requiring the children to travel an extra 150 miles on visitation periods when Mike is working or visiting his family in Kentucky cannot, under any definition of the word, be in the best interest of the children. The Court gave no reasoning in its Opinion as to why it would require Mike to travel an extra 150 miles with the children for visitation. The Chancellor properly cited the law: 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. -4-

8 Ellis v. Ellis, 840 So.2d 806, 812 (Miss. Ct. App. 2003). To make children travel an extra 150 miles for no reason is proof, in and of itself, that the visitation is not working and no one could argue that enforcing that requirement is in the best interests of the children. RESPECTFULLY SUBMITTED, this the 17th day of April, MICHAEL CHADWICK SMITH, Appellant BY: /s/jak M. Smith Jak M. Smith (MSB 07529) JAK M. SMITH, P.A. 357 North Spring Post Office Box 7213 Tupelo, Mississippi Telephone: (662) Facsimile: (662) Address: ATTORNEY FOR APPELLANT -5-

9 CERTIFICATE OF SERVICE I, Jak M. Smith, Attorney for Appellant, MICHAEL CHADWICK SMITH, certify that I have this day filed this REPLY BRIEF OF APPELLANT MICHAEL CHADWICK SMITH with the Clerk of this Court, and have served a copy of this BRIEF by United States Mail with postage prepaid on the following person(s): Honorable Jacqueline Estes Mask, Chancellor P. O. Box 7395 Tupelo, MS Honorable Jason Herring, Esq. Attorney at Law P. O. Box 842 Tupelo, MS Attorney for Appellee This the 17th day of April, /s/jak M. Smith Jak M. Smith (MSB 07529) -iii-