IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO. 2015-CA-01479-COA IN THE MATTER OF THE GUARDIANSHIP OF FRANCES ANNE MCPHAIL: JUSTIN W. MCPHAIL AND ANTHONY PAGE PORTERA APPELLANTS

v. PAMELA MCPHAIL APPELLEE DATE OF JUDGMENT: 08/18/2015 TRIAL JUDGE: HON. ROBERT Q. W H ITW ELL COURT FROM W HICH APPEALED: CALHOUN COUNTY CHANCERY COURT ATTORNEYS FOR APPELLANTS: T. SW AYZE ALFORD KAYLA FOW LER W ARE ATTORNEY FOR APPELLEE: HAVEN CLANTON NATURE OF THE CASE: CIVIL - DOMESTIC RELATIONS TRIAL COURT DISPOSITION: AW ARDED GUARDIANSHIP TO APPELLEE; AW ARDED LIBERAL VISITATION W ITH FAMILY MEMBERS, W I TH NO OVERNIGHT VISITS; AND LIMITED FAMILY TO TAKING W A RD OUT OF NURSING HOME ONE NIGHT PER W E EK FOR FINITE PERIOD OF TIME DISPOSITION: AFFIRMED - 02/28/2017 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE GRIFFIS, P.J., BARNES AND CARLTON, JJ. BARNES, J., FOR THE COURT: ¶1. On April 29, 2015, Justin McPhail and Anthony P age Portera (Page) f iled a petition with the Calhoun County Chancery

Court, requesting t o be appointed as guardians of their grandm other, Frances M c Phail. At the initiation of the p roceedings, Frances was eighty -six
y e a r s o l d a n d a patient a t a n u rsing hom e in C a lhoun City , M ississippi. She h ad recentlybeen d iagnosed a s suf f ering f rom dem entia. 1 The petition claim e d that F rances had executed

a durable power of attorney o n J anuary 2 9, 2015, appointing Justin and/or Page and/or Patricia (Patty ) Hibbard, Frances’s daughter a nd Page’s m other, as her attorney -in-f act. The
p e tition also argued that it would be in Frances’s best interest to reside with h e r granddaughter, Enga W ooten, in Long Beach, Mississippi. 2 ¶2. Bef

ore going i nto t he nursing hom e, Frances had lived in her h ouse with h e r other daug h t e r , P am ela McPhail (Pam ), f or approxim ately twenty y ears. 3 P am answered the petition f or guardianship, raising several af f irm ative def

enses and claim ing that Justin and Page (collectively ref

erred to as Appellants) were unf it to serve as F rances’s guardians. She
f u r t her argued Frances was not capable of m anaging her own a f f airs when she signe d t h e durable power of a ttorney on January 29, 2015, and noted that a prior power of attorney dated January 2, 2007, appointing Pam a nd/or W ay ne M cPhail, Frances’s son, a s a ttorney -in-f act,

was i n f ull f o rce and ef

f ect. P am a lso objected to the appointm ent of a guardian, contending tha t b e c a u s e s h e w as the “duly appointed attorney of her m other[ , s he] ha[ d] been able to

1 F ran ces w as l ater m o v ed to G o ld en L i v in g N u rsin g H o m e in E u p o ra, M ississip p i.

2 Ju stin resid es in G r e n a d a, M ississip p i. H is f ath er, Way

n e M cP h a il, i s F ran ces’s o n ly so n . P ag e an d P atty , h is m o th er, liv e in L o n g B each . Ju stin later ack n o w led g ed th at af ter so m e co n ten t io u s in teractio n s w ith o th er f am i ly m em

b e rs, E n g a h ad ch an g ed h er m i n d an d d id n o t w ish f

o r F ran c es to resid e w ith h er.

3 P am m o v ed b ack h o m e w ith h e r m o th er i n 1 9 9 6 t o h elp care f o r P am ’ s f

ath er, w h o h ad can cer. A f

ter h is d eath , sh e co n tin u ed to l iv e w i th F r an ces; s h e is em p lo y ed as a sch o o l teach e r i n C alh o u n C ity

. I n 2 0 0 3 , F ran ces t ran sf erred th e w arran ty d eed f o r th e real estate to P am , b u t in 2 0 0 6 , P am co n v ey ed a lif

e estate f o r th e p ro p erty

to F ran ces. 2c o mpletely care f or her m other’s health needs and her business af f airs b y utilizing t h e authority granted unto her[ .] ” A l t e r n atively , s he argued that, if the chancery court determ ined a guardian was needed, she was the “proper person f o r the appointm ent.” ¶3. O n M a y 2 0 , 2015, the parties entered into an “Agreed Order of Continu a n c e a n d Resetting,” which included tem porary visitation rights f

o r f am ily m em

bers to take Frances
f r o m t h e p r e m ises of the nursing hom e f or short periods o f tim e, w ith Pam to receive f our hours’ notice bef

o re t he v isit when possible. The order also allowed f am ily to take Frances

a n d l e a v e the nursing hom e f or up to f orty -eight hours, two tim es a m onth. Pam was t o receive f orty -eight hours’ notice bef ore any o vernight visits. ¶4. Pam f

iled a m o tion f

or contem p t and f or a t em porary restraining order (TRO) on July 10, 2015, alleging Justin h ad willf ully f ailed to com

ply with t he May 21, 2015 orde r . The

m otion claim ed that Justin had picked up Frances f rom t he nursing hom e o n J u ly 2, 2015, and
f ailed to r eturn h er that evening. Although he inf o rm ed nursing-hom e s taf

f the next day that he would r eturn Frances by noon, he appeared later t hat af ternoon w ithout Frances and told the staf f that he was keeping her a ll weekend. Pam r eceived n o notice of this v isit. On July 6, Justin told the nursing-hom e supervisor he would not bring Frances back u ntil the court hearing scheduled f

or A ugust 18, 2015, and he d id not reveal her whereabouts. 4 It was later discovered t h a t J u s t in took F rances to the M ississippi Gulf Coast and lef t her with f

am ily

.

4 P a m a d m itted at th e m o tio n h earin g th a t sh e saw Ju stin a n d F ran ces in G ren ad a at so m e p o in t th at w eek , b u t sh e w as relu ctan t to co n f ro n t h im d i rectly , testif

y i n g t h at Ju stin “h as an u n co n tro l lab le tem p er.” 3T h e mo t i on contended that Justin’s conduct was “contrary t o [ Frances’s] b est m ental a n d

p h y s i c a l n eeds

. . . and could jeopardize Medicaid r eim bursem ents f

or nursing hom e charges.” ¶5. Pam obtained the TRO on July 21, 2015, and was granted legal and phy sical custody of Frances in order to retrieve her and bring her back to the nursing h om e . P am a n d W ay ne drove to Enga’s hom e in Long Beach and retrieved F rances. On A u gust 7, 2015, the chancery court entered an order, dissolving the TRO, f inding Justin in contem

pt, and holding that the May 21, 2015 order should rem ain in f ull f orce and e f

f e ct. The court im

posed no sanctions on Justin, a s long he com plied with the court’s prior order, and it placed no additional restrictions on visitation with Frances at the nursing hom e. ¶6. A hearing on the petition f or guardianship was held on August 18, 2015. In a bench opinion, the chancellor denied the Appellants’ petition f or guardianship, noting that Justin had t wo o u tstanding debts ($43,000 to the Internal Revenue Service and approxim ately $78,000 to First S ecurity Bank), neither of which had any pay m ent plan o r s c hedule. He also observed that Justin had custody of his son every other w eek and a busy work schedule. The chancellor se t a s ide the January 2 9, 2015 power of attorney , as there was no evidence that the prior January 2, 2007 power of attorney , which was executed when Frances “was lucid, in good shape and health[ ,]” had been r evoked. Finding t hat Frances had dim inished m ental capacity , the chancellor a ppointed Pam as h er g uardian and r equired Pam to subm it annual accountings; he also orde r e d P a m to rem ove h er nam e a s co-owner of a joint checking

4account with Frances. The chancellor “reserve[ d] t he right to am end [ his] ruling should [ he]

m ake som e error in law or f act that is called to [ his] attention at a later tim e.” ¶7. On August 2 9, 2015, the chancery court entered its f inal order. The court authorized liberal visitation rights with Frances f or f am ily m em

bers, subject to the nursing hom e’s rules and regulations, and that visitation “shall be on site at t he nursing hom e and shall n ot extend bey ond 10: 3 0 p.m . of a ny day , except family m embers m ay t ake Ms. McPhail out of the nursing home for [ one ] night during a week for d inner o r ice cream, e tc

. ” ( Em phasis added). This i talicized language was a h andwritten addition subsequently added by t he chancellor af ter counsel m et with t he court to discuss t h e o rder’s language concerning visitation. However, no provision was m ade f or any overnight visits. ¶8. T h e A p p e l l a nts argue on appeal that the c hancellor e rred in m o dif y i ng h i s b e n c h opinion and in prohibiting overnight visitation in the f inal judgm ent. They f

urther contend the c ourt abused its discretion in c hoosing Pam as Frances’s guardian. Finding no error, we af f irm

. STANDARD OF REVIEW ¶9. Our appellate courts “em ploy [ ] a lim i ted standard of review on appeals f rom chancery
court.” Tenn. Props. Inc. v. Gillentine , 66 So. 3d 695, 697 (¶9) (Miss. C t. App. 2011) (citing Corp. Mgmt. v. Greene Cty., 2 3 So. 3d 4 54, 4 59 (¶11) (Miss. 2009)). “As such, we will not disturb the f

actual f indings of a chancellor when supported by substantial e vidence unless the c hancellor abused his discretion, was m anif e stly wrong, clearly erroneous, or applied an

5erroneous legal s tandard.” Id. Questions of law, however, a re reviewed de novo. I d

. (citing Fletcher v. Lyles, 999 So. 2d 1271, 1276 (¶20) (Miss. 2009)).
DISCUSSION
I. Whether t he chancery court’s order failed to incorporate its bench ruling. ¶10. The Appellants argue that the chancery court’s f inal order is p rejudicial, as it f ailed

to ref lect the court’s bench ruling, and should be reversed. At the conclusion of the hearing, the chance l l o r a p p o i n ted Pam a s guardian of the person a nd estate of Frances. The chancellor authorized visitation w ith f am ily m em

b ers, as long as the visits com plied with the rules and regulations o f the nursing hom e where Frances resided. W hen discussing overnight visits, Justin claim ed that Frances could be o ut o f the nursing hom e f or up to f ourteen day s
at a tim e . T he chancellor m erely held that it would b e whatever the nursing h o me and Medicaid would allow, but he lef t it open f o r m odif i cation, stating:
We l l , I tell y ou what let’s do. Y[ ou] investigate that a n d what the n u r s i n g hom e w ill allow. And if sh e ’ s a b l e a n d we c an do it, y ou know, I might consider a petition to m odif y that som e. But at this tim e, I think we need to go wi th what I’ve ruled. A nd I think any m ore than whatever a day o r so, whatever they a llow, I think, is based on her condition in m y view of the witnesses and so f

orth. I think that’s where we need to be. (Em phasis added). However, when the o rder was prepared by counsel, it f

ailed to address the issue of overnight v isits. Although the c h ancellor entered t he su b s e q u e n t handwritten

am endm ent that allowed f ami l y me mb e rs to t ake F rances out f or “dinner or ice cream ,” nothing in the order indicated that she would be allowed to leave f or overnight visits.

6¶11. “The Mississippi Suprem e Court has held that ‘a c hancellor’s bench ruling is not f ina l, but subject to m odif

i cation by that sam e c hancellor.’” Hinson v
. Hinson , 877 So. 2 d 547, 548 (¶5) (Miss. Ct. App. 2004) ( quoting Grey v. Grey, 638 S o . 2 d 4 8 8 , 492 (Miss. 1994)). As
Pam notes, the chancellor’s b ench opinion “was pref aced with the [ c]hancellor[ ’s] reserving the right to am end should he m ake som e error in law o r f act that is called to h is attention at

a later t i me.” Furtherm ore, t he c hancellor never explicitly held in his bench opinion that overnight visits would be allowed. Theref ore, we f ind no m erit to this argum e nt.
II. Whether the chancery court erred in lim iting visitation. ¶12. A l t ernatively , the Appellants argue that t he chancery court abused its di s c r e t i o n i n lim iting their visitation with Frances and prohibiting overnight visitation. Pam claim s that overnight visitation “disrupts Frances’[ s] routi n e . . . and if executed, w ould require a readjustm ent by

her to the nursing hom e routine upon each return.” ¶13. W e f

ind no a buse of discret i o n i n t he chancery court’s ruling. 5 The court allowed “liberal” visitation with Frances, as long as the visits com ply w ith the rules and regulations of the nursing hom e. T h e prohibition o f overnight visitation is f or F rances’s well-being, which was the cha n c e r y court’s prim ary concern. A s Frances’s phy sician, Dr. Charles Ozborn, testif

i ed in h is deposition, “it’s a big job” to ta k e c a r e o f s o m e one i n Frances’s

5 A lth o u g h it relates to ch ild cu sto d y , th is C o u rt h as recen tly h e l d : “U n less w e f i n d th at a ch an cery co u rt’s d eterm in atio n reg ard in g v isitatio n an d its restrictio n s is m an if estly w r o n g o r co n s titu tes an ab u se o f d iscretio n , w e are b o u n d to accep t its f in d in g s.” B o liva r v. Wa ltm a n , 1 9 4 S o . 3 d 8 8 9 , 8 9 3 (¶6 ) (M iss. C t. A p p . 2 0 1 6 ) ( c i t i n g L o fto n v. L o fto n , 1 7 6 S o . 3 d 1 1 8 4 , 1 1 8 6 (¶5 ) (M iss. C t. A p p . 2 0 1 5 ) ). 7condition, and she requires twenty -f our-hour care. F rances is o n several ty pes of m edication and, with h er dem e ntia, benefi t s fr o m a s t r u c t u r e d environm ent. W hen asked whether Frances would “f are b etter” i f her schedule w ere not disrupted, Dr. Ozborn r eplied, “[ T]hat’s an obvious y e s. . . . [ O]ne of the things that’s really

im portant is having a schedule.”
III. Whether the c hancery court erred in appointing Pam ela as guardian. ¶14. The Appellants argue the c hancellor erred i n a ppointing Pam a s Frances’s guardian, contending there was “undisputed evidence at trial t hat Pam breached her f iduciary duties to Frances over and over again,” and they request appointm ent of

Justin as guardian. ¶15. “ [ T ] h e p u r p o s e o f guardianships and conservatorships is t o provide an am ount of protection to an individual who is, f or a variety of reasons, unable f u lly to protect him self

.”
In re Guardianship of Estate of L e w i s , 4 5 S o . 3d 313, 318 (¶15) (Miss. Ct. App. 2010). Theref ore, “chancery courts generally are given wide discretion to ‘take all necessary steps
to conserve and protect the best interest of these w a r d s o f the court’ in determ ining the appropriate person t o be appointed as a conservator.” Ravenstein v. Ravenstein , 167 So. 3d 210, 220 (¶21) (Miss. 2014) (quoting Union Chevrolet Co. v. Arrington , 1 62 Miss. 816, 826, 132 So. 593, 595 (1932)). ¶16. W e f

ind no a buse of discretion i n deny ing the A ppellants’ petition f or guardianship. Justin agreed that Frances n eeded const a n t c a r e b ut presented no specif ics a s t o how he would care f

or Frances on a twenty -f

our-hour basis. H e a l so adm itted he h ad signif icant debt; so t he chancellor was concerned about h o w h e c o uld support Frances’s c are. Justin
8testif

i ed t hat he had custody of his son every other week, and his m other a cknowledged that she helped him with the child’s care when he v i s i t ed. It was also n oted that Enga was no longer agreeable to taking care of Frances, d ue to the f am ily disagreem ent with W ay ne and
Pam

. Page f

urther testi f

i ed that he and his m other, P atty , had recently o pened a f am ily

owned restaurant, open Monday through Saturday , and that he usually did not get hom e until af ter 10 p.m

. ¶17. W e also f

ind there was substantial evidence to support the chancellor’s appointm ent of Pam as guardian. In 2006, Frances executed a Last W ill an d Testam e nt, Power of Attorney , and Medical Power of Attorney , a n d nom inated Pam as h er guardian, should one need to be appointed. Frances was deter mi n ed at that t im e t o be of s ound and disposing

m ind. There was evidence t hat Pam and France s h a d f u l l a c cess to each other’s bank accounts, and Pam adm itted that she treated the bank accounts a s joint accounts, not “y ours and m ine.” But Pam denie s t h a t s he took advantage of her m other. W hile t he chancellor acknowledged that he “was not happy with the w ay [ Pam ] handled the m oney ,” he reasoned that Pam had been Frances’s “f ull-tim e caregiver f

or over [ twenty ] y ears.” The two wom en had a com m on social lif

e, traveling and shopping together. O ne o f Frances’s n eighbors, Irm a Boland, testif

ied on Pam ’s behalf

: Q. And who was taking care of Ms. Frances in these two-and-a-half y ears when y ou noticed her health going down.
A. Pam

. Q. Did y o u

see any body else in the f

am ily ?
9A. No.

. . . . Q. W hen y ou were visiting in Ms. Fra n c e s house, how did Pam treat her m o ther?
A. She was very

good to her.

. . . . Q. Did it appear that Pam was dedicated to the care of her m o ther?
A. Yes.
W h en asked whether he thought Pam was “supportive” of

Frances, Dr. Ozborn testif ied: She seem s to be. She seem s to be very interactive with her. I never saw any dissension between them

. But, there again, I’ve only – her daughter has only been in the r oom when I’ve seen her two or three tim es. Twice, I think over the f ew m o nths that she’s been here, she’s been in the room with her w h en I cam e around. Moreover, the chancellor p ut p rotections in p lace to ensure Pam appropriately m anages her

m other’s f

unds, such as taking Pam ’s nam e o f f the checking account and requiring her to pay her own utilities on the hom e. He also required Pam to subm it an annual accounting. ¶18. Accordingly , we f ind no error in the chancery court’s d e c i s i o n t o a p p o i n t Pam as guardian. ¶19. THE JUDGMENT O F THE CHANCERY COURT OF C ALHOUN COUNTY IS AFFIRMED. ALL COSTS OF THIS A P P E A L A RE ASSESSED TO THE APPELLANTS. LEE, C .J., IRVING AND GRIFFIS, P.JJ . , I S H E E , C A R L T O N, FAIR, W ILSON AND WESTBROOKS, JJ., CONCUR. GREENLEE, J., NOT PARTICIPATING.

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