Holmes v. Holmes
| Docket Number: | 2005-CA-01711-COA | |
| Court of Appeals: |
Opinion Link Opinion Date: 06-26-2007 Opinion Author: CHANDLER, J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Modification of custody - Preference of child - Section 93-11-65 - Separation of children 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 - DOMESTIC RELATIONS |
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| Trial Court: |
Date of Trial Judgment: 07-29-2005 Appealed from: PIKE COUNTY CHANCERY COURT Judge: John P. Price Disposition: MODIFIED PHYSICAL CUSTODY OF MINOR SON FROM MOTHER TO FATHER Case Number: 2003-307 |
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| Party Name: | Attorney Name: | |||
| Appellant: | NANCY JILL HOLMES |
RENEE M. PORTER |
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| Appellee: | MIKE MANNING HOLMES | JOSE BENJAMIN SIMO |
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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 - Preference of child - Section 93-11-65 - Separation of children |
| Summary of the Facts: | Mike Holmes filed for divorce from Nancy Holmes, alleging grounds of habitual cruel and inhuman treatment or, in the alternative, irreconcilable differences. The chancery court entered a judgment of divorce for Mike on the grounds of habitual cruel and inhuman treatment and stated that both parents would share legal custody of the minor children, with Jill having primary physical custody. After the divorce, Mike and Jill continued to have a relationship, including a sexual relationship. Two years later, Jill filed a complaint for modification of judgment seeking to have Mike’s visitation terminated or, in the alternative, asking the court to award limited supervised visitation. Mike filed an answer and asserted a counter-claim. The court changed physical custody of the couple’s son from Jill to Mike. The minor daughter remained in the primary physical custody of Jill. A new visitation schedule was also arranged, ensuring that the children would be together on the weekends and alternate between parents. Jill appeals. |
| Summary of Opinion Analysis: | Jill argues that the court erred by modifying the existing child custody order without making a specific finding of a material change in circumstances that adversely affected the couple’s son and that the change would be in his best interest. She argues that the court made its finding based solely on her son’s election to live with Mike. Section 93-11-65 permits a child who has reached the age of twelve years to express a preference as to which parent the child desires to live with when custody disputes are presented to the chancery courts. This election of preference is not outcome determinative of the issue. Rather, the chancellor must consider the child’s preference when assessing what is in the best interest of the child. In this case, while the court did cite the election as a factor in its determination of the modification, the court also considered the GAL report and various testimony from both parties. The trial court specifically referenced Jill’s mental health assessment by a licensed psychiatrist and the report from the GAL as heavily influencing his decision. Jill also claims that the lower court did not address the separation of the children or provide a justification for such a separation. However, in its order, the lower court noted that it considered any detrimental effect the division would have had on the two siblings. As substantial evidence supported the chancellor's decision, the court’s decision to modify the custody decree is affirmed. |
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