Gilliland v. Gilliland
| Docket Number: | 2005-CA-01568-COA Linked Case(s): 2005-CA-01568-COA ; 2005-CT-01568-SCT |
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| Court of Appeals: |
Opinion Link Opinion Date: 04-03-2007 Opinion Author: CHANDLER, J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Divorce: Irreconcilable differences - Guardian ad litem’s report - Child custody - Albright factors - Visitation Judge(s) Concurring: King, C.J., Lee and Myers, P.JJ., Irving, Griffis, Barnes, Ishee, Roberts and Carlton, JJ. Procedural History: Bench Trial Nature of the Case: CIVIL - CUSTODY |
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| Trial Court: |
Date of Trial Judgment: 07-21-2005 Appealed from: OKTIBBEHA COUNTY CHANCERY COURT Judge: Kenneth M. Burns Disposition: GRANTED CUSTODY OF CHILDREN TO FATHER. Case Number: 2002-0014-B |
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| Party Name: | Attorney Name: | |||
| Appellant: | KIM LASHAN GILLILAND |
WILLIAM MATTHEW THOMPSON,
LEE ANN SELF TURNER,
MARK A. CHINN |
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| Appellee: | ROGER NEAL GILLILAND | RICHARD C. ROBERTS, DAVID BRIDGES |
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Synopsis provided by:  If you are interested in subscribing to the weekly synopses of all Mississippi Supreme Court and Court of Appeals hand downs please contact Tammy Upton in the MLI Press office. |
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| Topic: | Divorce: Irreconcilable differences - Guardian ad litem’s report - Child custody - Albright factors - Visitation |
| Summary of the Facts: | Kim Gilliland and Roger Gilliland were granted an irreconcilable differences divorce. The chancellor granted primary custody of the parties' two children to Roger. Kim appeals. |
| Summary of Opinion Analysis: | Issue 1: Guardian ad litem’s report Kim argues that she lacked an opportunity to challenge the GAL report, that she was deprived of an opportunity to confront all of the witnesses against her, and that the GAL was biased and incompetent. The GAL filed her report on January 25, 2005. The divorce hearing continued on July 20, 2005, after which the court entered a final judgment. The court expressly permitted the parties to submit briefs in response to the GAL report before July 20, 2005, and also permitted the parties to call witnesses at the July 20, 2005 hearing. Kim could have challenged the GAL report at the July 20, 2005 hearing and, therefore, she was not deprived of an opportunity to challenge the GAL report. Kim argues that, because the chancellor stated in his opinion that he had determined custody prior to her conviction, she was effectively deprived of an opportunity to introduce additional evidence pertinent to custody on July 20, 2005. Pursuant to M.R.C.P. 54(b), an order or other form of decision is subject to revision at any time before entry of a final judgment. At the July 20, 2005 hearing, the chancellor told both parties that time was not a factor and to call any desired witnesses on the issue of custody. Thus, the chancellor was ready to consider additional evidence and Kim was not deprived of an opportunity to challenge the GAL report. The GAL stated in her report that, among other named witnesses, she had spoken with neighbors of the Gillilands. Kim argues that the information provided by these unidentified neighbors was prejudicial to her and that the GAL's reliance on their information deprived her of her right to confront the witnesses against her. Kim never objected to the unidentified witnesses in the GAL report and, therefore, this issue was not preserved for appeal. Kim’s argument that the GAL was biased in favor of Roger and incompetent were not preserved for appellate review, since Kim's response to the report was not filed until after entry of final judgment. Issue 2: Albright factors Kim argues that the chancellor's application of the Albright factors demonstrates an abuse of discretion when compared with the evidence in the case. The chancellor made findings on all the factors and stated that Kim's mental health was the overriding consideration for the court's decision to award primary custody of both children to Roger. There was substantial evidence supporting the chancellor's decision. Issue 3: Visitation The chancellor granted Kim visitation approximately consisting of four weeks in the summer, two weekends per month, two Wednesday evenings per month, and alternating holidays. Kim argues that, because the chancellor expressed that the question of custody was close, the chancellor should have awarded a more liberal visitation schedule consisting of at least five weeks' summer visitation. The chancellor is charged with fashioning a visitation schedule that is in the best interests of the children. The chancellor is vested with the discretion to determine whether the best interests of the children mandate liberal visitation or instead a more limited visitation provision. The chancellor's opinion makes clear that he harbored serious concerns about Kim's treatment of the children when in her custody. Thus, the chancellor acted within his discretion in finding that a more limited visitation schedule suited the best interests of the children. |
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