Gilliland v. Gilliland


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Docket Number: 2006-CA-02110-COA
Court of Appeals: Opinion Link
Opinion Date: 06-10-2008
Opinion Author: ROBERTS, J.
Holding: affirmed on direct and cross-appeal and remanded for proceedings consistent with this opinion.
Additional Case Information: Topic: Modification of custody - Directed verdict - M.R.C.P. 41(b) - M.R.C.P. 50(a) - Contempt - Visitation
Judge(s) Concurring: KING, C.J., LEE AND MYERS, P.JJ., IRVING, GRIFFIS, BARNES, ISHEE AND CARLTON, JJ.
Judge(s) Concurring Separately: Chandler, J., concurs with separate written opinion.
Procedural History: Bench Trial
Nature of the Case: CIVIL - CUSTODY
Trial Court: Date of Trial Judgment: 07-26-2006
Appealed from: OKTIBBEHA COUNTY CHANCERY COURT
Judge: Kenneth M. Burns
Disposition: DENIED PLAINTIFF’S COMPLAINT TO MODIFY CUSTODY
Case Number: 02-0014-B
  Party Name: Attorney Name:   Brief(s) Available:
Appellant: KIM LASHAN GILLILAND




 JANA L. DAWSON, J. MARK SHELTON



  
  • Appellant #1 Brief
    		•
    Appellee: ROGER NEAL GILLILAND RICHARD C. ROBERTS, DAVID BRIDGES  
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    Topic: Modification of custody - Directed verdict - M.R.C.P. 41(b) - M.R.C.P. 50(a) - Contempt - Visitation
    Summary of the Facts: Kim and Roger Gilliland were granted a divorce, and Roger was awarded primary custody of their two sons. Kim later filed a complaint for modification of custody and also complained that Roger was in contempt due to his interference with her relationship with the children. The chancellor declined to modify custody and to find Roger in contempt. Kim appeals, and Roger cross-appeals.
    Summary of Opinion Analysis: Issue 1: Directed verdict Kim argues that the chancellor erred when he granted Roger’s motion for a directed verdict. As the chancellor sat without a jury, the proper procedural mechanism for Roger’s request was a motion to dismiss pursuant to M.R.C.P. 41(b), rather than a motion for a directed verdict pursuant to M.R.C.P. 50(a). The chancellor sat without a jury. Under the circumstances, the chancellor was not required to consider the evidence in the light most favorable to Kim or to give Kim the benefit of all reasonable inferences from the evidence. In order to succeed in an attempt to modify custody, the noncustodial parent must show a material change in circumstances has occurred since the issuance of the judgment or decree sought to be modified, the change adversely affects the welfare of the child, and the proposed change in custody would be in the best interest of the child. Kim’s arguments in this regard are primarily centered on the prospect that Roger engaged in a pattern of parental alienation and that the ongoing conflict between Kim and Roger is detrimental to the best interests of the children. There can be no doubt that it is in the best interests of the children for their parents to maintain a peaceful and harmonious relationship, but the chancellor did not find that the adverse effect was due to a material change in circumstances that occurred in Roger’s home. Even if there had been a change in circumstances, there was no evidence that the children suffered an adverse effect. Issue 2: Contempt Kim argues the chancellor erred when he did not find Roger in contempt. Whether a party is in contempt is a question of fact to be decided on a case-by-case basis. Fines for civil contempt are payable to the party injured by noncompliance with the court’s order and are related to, and ordinarily should not exceed, the injured party’s proved losses and litigation expenses, including counsel fees. Kim’s contempt allegations were centered on Roger’s interference with her telephone visitation and Roger’s inability to set aside the volatile relationship that he and Kim shared. However, Kim did not prove that Roger caused her to experience any monetary losses. Issue 3: Visitation The chancellor amended the visitation schedule and added a provision that while school is in session, Kim may exercise her visitation by taking custody of the children at school at the conclusion of the school day and returning the children to the school on the day next succeeding the termination of her visitation. Roger argues the chancellor erred in amending the visitation schedule. A chancellor may modify visitation provisions if there is a showing that the prior decree for reasonable visitation is not working. Roger argues that the new visitation provision is ambiguous and it creates conflict, because Kim will interpret it to mean that she can have the children on holidays that weren’t given to her in the original order. Considering the likelihood of additional litigation between Roger and Kim, it is necessary to remand this question to the chancellor for resolution.


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