Schmidt v. Bermudez
| Docket Number: | 2006-CA-00765-COA Linked Case(s): 2006-CA-00765-SCT ; 2006-CA-00765-COA ; 2006-CT-00765-SCT ; 2006-CT-00765-SCT ; 2006-CT-00765-SCT |
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| Court of Appeals: |
Opinion Link Opinion Date: 01-15-2008 Opinion Author: IRVING, J. Holding: AFFIRMED IN PART, REVERSED AND RENDERED IN PART, AND REMANDED |
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| Additional Case Information: |
Topic: Modification of custody - Judge’s bias - M.R.C.P. 61 - Expert witness - Court-appointed expert - M.R.E. 706 - Guardian ad litem - Contempt - Visitation - Material change in circumstances Judge(s) Concurring: KING, C.J., LEE AND MYERS, P.JJ., GRIFFIS, BARNES, ISHEE, ROBERTS AND CARLTON, JJ. Concurs in Result Only: CHANDLER, J. Procedural History: Bench Trial Nature of the Case: CIVIL - CUSTODY |
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| Trial Court: |
Date of Trial Judgment: 03-31-2006 Appealed from: MARSHALL COUNTY CHANCERY COURT Judge: Glenn Alderson Disposition: MATERIAL CHANGE IN CIRCUMSTANCES FOUND AND CUSTODY AWARDED TO FATHER Case Number: 03-303(A) |
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| Note: | Miss SCT reversed and remanded the COA judgment. See SCT opinion at: http://www.mssc.state.ms.us/Images/Opinions/CO53703.pdf | |
| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | AMANDA J. (GRASSELL) BERMUDEZ SCHMIDT |
JOE MORGAN WILSON |
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| Appellee: | BRIAN S. BERMUDEZ | SARAH JEAN LIDDY, JUSTIN STRAUSS CLUCK |
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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 - Judge’s bias - M.R.C.P. 61 - Expert witness - Court-appointed expert - M.R.E. 706 - Guardian ad litem - Contempt - Visitation - Material change in circumstances |
| Summary of the Facts: | Amanda Schmidt and Brian Bermudez are the parents of a minor. Upon a petition by Bermudez, the chancery court found that a material change in circumstances necessitated that the primary physical custody of the child be changed from Schmidt to Bermudez. Schmidt appeals. |
| Summary of Opinion Analysis: | Issue 1: Bias Schmidt argues that the chancellor’s improper remarks to her and her witnesses demonstrate that the chancellor was unquestionably biased against her. From the beginning of the trial, the chancellor indicated that he believed that Schmidt and her husband had lied during prior proceedings. The chancellor continued to refer negatively to Schmidt’s alleged perjury, repeatedly telling her that she had already lied to the court before. The chancellor’s statements to Schmidt were highly inappropriate. Even after Schmidt indicated that she understood the court, the chancellor continued to belittle and threaten her. Unfortunately, the chancellor’s misconduct was not limited to repeatedly questioning Schmidt’s honesty. The chancellor also continually questioned Schmidt regarding what proof she had to show. When Schmidt told him that she had a psychologist who was going to testify, the chancellor essentially told her that he considered the testimony highly suspect – even though he had not yet heard it. This course of conduct is neither courteous to the witness nor in the best interest of judicial economy. There is no excuse for the chancellor’s behavior in this case. Repeatedly insulting a witness and the professionals that she has consulted degrades the integrity of the court itself. Although the chancellor’s remarks were clearly inappropriate, the error arising therefrom was harmless, as the record reveals ample evidence that supports the chancellor’s findings on every issue except that of visitation. Pursuant to M.R.C.P. 61, the chancellor’s improper conduct did not affect a substantial right of the parties. Issue 2: Expert witness Schmidt argues that the court erred in refusing to designate her proffered expert witness as an expert witness. While the chancellor should have designated the witness as an expert witness, any error in failing to do so was completely harmless because the witness testified exactly the same as she would have had she been admitted as an expert witness. Issue 3: Court-appointed expert Schmidt argues that the court-appointed expert was improperly appointed because there is nothing in the record to indicate that he was informed of his duties in writing or at a conference that was participated in by all the parties, as is required under M.R.E. 706. Schmidt neither objected to the expert being allowed to testify, nor did she demand that his duties be specified in writing or outlined during a conference. Therefore, no discussion concerning the procedural technicalities surrounding the appointment is necessary. Issue 4: Guardian ad litem Schmidt argues that the guardian ad litem did not fully investigate the case because he never spoke with her husband. There is no merit to this contention. The guardian’s findings were extensive and well thought out. Issue 5: Contempt Schmidt argues that the court was in error for finding her in contempt in its final judgment when it had not held a contempt hearing or ever found Schmidt in contempt of court. Schmidt admitted that she had denied Bermudez visitation on several occasions. Given her admission, it is unclear what Schmidt thinks would have occurred differently had the court held a separate hearing and thus, this contention of error is without merit. Issue 6: Visitation Schmidt argues that the chancellor erred in declining to grant her any visitation rights until she petitioned the court with a third party joined in the petition, for such rights. There must be evidence presented that a particular restriction on visitation is necessary to avoid harm to the child before a chancellor may properly impose the restriction. Otherwise, the chancellor’s imposition is manifest error and an abuse of discretion. Here, the chancellor erred by declining to grant Schmidt any visitation. The court should not have required a third party to join in Schmidt’s petition for visitation. Merely ordering supervised visitation would be sufficient to address the court’s concern. In addition, the court’s decision to grant no regular visitation is not in the child’s best interest. The child loves his mother and has lived with her most of his life. On remand, the court must consider what is in the child’s best interest. Issue 7: Modification of custody Schmidt argues that the court erred in finding that a material change in circumstances exists. Modification of child custody is considered only when there has been a material change in circumstances which adversely affects the welfare of the child. Although the court did not specifically state what it found to be a material change in circumstances, the child’s psychiatric problems while in the care of his mother represent a material change in circumstances sufficient for the court to look at the Albright factors. The court clearly was concerned about the child’s behavior and the amount of medication that he was on while with his mother, which together form a material change in circumstances adverse to the child’s wellbeing. Because the court’s findings as to the Albright factors were not clearly erroneous, the court did not err in transferring custody of the child to Bermudez. |
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