C.A.M.F. v. J.B.M.
| Docket Number: | 2005-CA-02227-COA Linked Case(s): 2005-CA-02227-COA ; 2005-CT-02227-SCT |
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| Court of Appeals: |
Opinion Link Opinion Date: 05-01-2007 Opinion Author: BARNES, J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Custody - Material change in circumstances - Relationship of siblings - Admission of testimony - M.R.E. 803(25) - M.R.E. 803(24) - Excited utterance - M.R.E. 803(2) - Character testimony - M.R.E. 404(a) - M.R.E. 405(b) Judge(s) Concurring: KING, C.J., LEE AND MYERS, P.JJ., IRVING, CHANDLER, GRIFFIS, ISHEE, ROBERTS AND CARLTON, JJ. Procedural History: Bench Trial Nature of the Case: CIVIL - DOMESTIC RELATIONS |
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| Trial Court: |
Date of Trial Judgment: 10-12-2005 Appealed from: DeSoto County Chancery Court Judge: Percy L. Lynchard, Jr. Disposition: CUSTODY CHANGED TO FATHER Case Number: 03-09-1579(PL) |
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| Party Name: | Attorney Name: | |||
| Appellant: | C.A.M.F. |
WILLIAM NEAL SMALL
RONALD LOUIS TAYLOR |
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| Appellee: | J.B.M. | STEVEN GLEN ROBERTS |
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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: | Custody - Material change in circumstances - Relationship of siblings - Admission of testimony - M.R.E. 803(25) - M.R.E. 803(24) - Excited utterance - M.R.E. 803(2) - Character testimony - M.R.E. 404(a) - M.R.E. 405(b) |
| Summary of the Facts: | J.B.M. (the Father) filed a petition in DeSoto County Chancery Court to enroll and modify the final divorce decree from Shelby County, Tennessee, which granted C.A.M.F. (the Mother) a divorce on the ground of cruel and inhuman treatment and awarded her custody of the minor child. The Father testified that he instituted the proceeding to modify custody after he found out some matters of concern about the Mother’s new husband (M.A.F.). The court ordered that physical and legal custody be changed to J.B.M. The Mother appeals. |
| Summary of Opinion Analysis: | The Mother argues that the chancellor did not find any adverse effect on the child as a result of the alleged change in circumstance, did not find either a dangerous or illegal environment in the custodial home, and proceeded to consider the factors in Albright and change custody based on speculation as to future harm. The record shows that the chancellor found that the nude photographs of the Son and other questionable conduct by M.A.F. constituted a substantial and material change in circumstances and thoroughly considered and discussed the Albright factors in finding that the best interests of the Son would be served by placing physical custody with the Father. The Mother argues that the chancellor abused his discretion and/or committed manifest error when he failed to acknowledge the legal presumption that siblings should be separated only in extraordinary circumstances and failed to acknowledge the guardian’s testimony about the close emotional relationship between the Son and his half-brother. There was no requirement that the chancellor specifically address the question of siblings and custody. This is not a separate Albright factor but a question which the chancellor may consider along with the best interest of the child. The Mother argues that the chancellor committed manifest error when he allowed testimony from her step-mother concerning photographs taken of the Son and his half brother. The Step-Grandmother testified that the Son had shown her and her husband (the maternal grandfather) the photographs and identified M.A.F. as the person who took the pictures. The chancellor erred by citing M.R.E. 803(25) as the basis for allowing the Step-Grandmother’s testimony regarding the Son’s identification of M.A.F. as the person who took the photographs, because the chancellor failed to find that the Son was unavailable pursuant to subsection (b)(2) of the rule. Although the Father argues that the testimony was admissible under M.R.E. 803(24), the applicability of this exception requires the use of discretion with respect to facts which are not apparent from the record. It is not apparent whether the Son’s statement is more probative on the point for which it was offered than any other evidence which the Father could procure through reasonable efforts nor is it apparent whether the Father gave advance notice to the Mother that he intended to introduce the Son’s statement. However, any error by the chancellor in admitting the testimony was harmless. Even without the Son’s statement identifying M.A.F. as the photographer, the photographs themselves, as well as the Step-Grandmother’s impression that the Son was upset about them, clearly support the chancellor’s conclusion that these photographs were inappropriate and indicative of conditions in the custodial home which were adverse to the Son’s best interests. The Mother also argues that the chancellor erred when he relied upon the uncorroborated testimony of her ex-mother-in-law, the Paternal Grandmother, as to statements made by the Son at least five years earlier. It appears that the Son’s statement was both spontaneous and made while he was still under the stress and excitement caused by the event. Thus, the court did not err in admitting the testimony under M.R.E. 803(2). The Mother argues that it was an abuse of discretion and/or manifest error for the chancellor to admit the testimony of M.A.F.’s ex-wife, and of his former lover and the mother of another one of his children. The testimony confirmed that during these earlier relationships M.A.F. was habitually naked in front of neighbors, friends, and babysitters even when his own female child was present. While the testimony would not have been proper under M.R.E. 404(a) for the purpose of proving that he acted in conformity therewith in a particular occasion, the testimony was admissible under M.R.E. 405(b) to show the general nature of the stepfather’s character. Because the determination of the Son’s best interests in this case necessarily required scrutiny of M.A.F.’s character, the chancellor did not err in admission of the testimony concerning his past conduct. The Mother argues that the chancellor committed manifest error in refusing to consider the circumstances of the initial custody proceeding, specifically the Father’s alleged history of physical abuse of the Mother. The Mother was free to offer her own evidence and testimony at the custody hearing concerning the Father’s character. Her failure to do so cannot give rise to an adverse inference against the Father nor form the basis of an assignment of error with respect to the chancellor’s decision. Overall, there was sufficient credible evidence to support the chancellor. |
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