Anderson v. Anderson
| Docket Number: | 2006-CA-00386-COA | |
| Oral Argument: | 04-25-2007 | |
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| Court of Appeals: |
Opinion Link Opinion Date: 06-26-2007 Opinion Author: BARNES, J. Holding: Reversed and Remanded |
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| Additional Case Information: |
Topic: Modification of custody - Involuntary dismissal - M.R.C.P. 41(b) - Testimony by children - Section 93-11-65 Judge(s) Concurring: KING, C.J., LEE AND MYERS, P.JJ., IRVING, CHANDLER, GRIFFIS, ISHEE, ROBERTS AND CARLTON, JJ. Procedural History: Dismissal Nature of the Case: CIVIL - DOMESTIC RELATIONS |
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| Trial Court: |
Date of Trial Judgment: 02-14-2006 Appealed from: MARSHALL COUNTY CHANCERY COURT Judge: Glenn Alderson Disposition: DISMISSAL WITH PREJUDICE GRANTED IN FAVOR OF FATHER IN CHILD CUSTODY MODIFICATION. Case Number: 2001-0173 |
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| Party Name: | Attorney Name: | |||
| Appellant: | CATHY JO ANDERSON |
OMAR D. CRAIG |
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| Appellee: | RONALD CURTIS ANDERSON | THAD J. MUELLER ROBERT M. CARTER |
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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: | Modification of custody - Involuntary dismissal - M.R.C.P. 41(b) - Testimony by children - Section 93-11-65 |
| Summary of the Facts: | Cathy Anderson sought modification of an order which granted Ronald Anderson physical custody of their two sons, who at the time of the modification hearing were ages fifteen and twelve. The chancellor granted a dismissal with prejudice in favor of Ronald. Cathy appeals. |
| Summary of Opinion Analysis: | Cathy argues that the court erred in rendering its decision for involuntary dismissal before hearing the testimony of the two children, who, it had been agreed upon, would testify at the end of the proceeding after both parties had presented their cases. In order to modify a previous child custody order, the party seeking the change bears the initial burden of proving there has been a material change in circumstances; the change must be adverse to the child’s welfare; and the chancellor must find a change in custody is in the best interest of the child. Section 93-11-65 provided, at the time of this hearing, that children over the age of twelve shall have the privilege of choosing the parent with whom they shall live if it is in the best interest and welfare of the child. However, the trial court is not required to follow the child’s stated preference. When a child’s choice of a custodial parent is denied, the chancellor must make an on-the-record finding as to why the best interest of the child would not be served. In failing to hear the testimony of the two sons, the trial court did not hear one of the main sources of direct evidence for the initial analysis of custodial modification as to whether there was a material change of circumstance since the original divorce decree, and if so, whether it was adverse. The court heard only indirect hearsay testimony, over the objections of Ronald’s counsel, as to the children’s custodial preference. The Anderson children’s testimony might have provided sufficient proof to thwart a dismissal. Furthermore, even if this testimony had not prevented the case’s dismissal, the chancellor, by refusing to hear the children’s testimony on these subjects, impinged upon the substantial rights of Cathy, because she was not allowed to present her entire case before the motion to dismiss was considered. M.R.C.P. 41(b) allows involuntary dismissal only after the plaintiff has completed the presentation of his evidence. This motion cannot be heard as long as the plaintiff has relevant evidence to present. Thus, the trial court abused its discretion in not hearing the direct testimony of the Anderson children before granting its dismissal. |
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