Gainey v. Edington
| Docket Number: | 2008-CA-00237-COA | |
| Court of Appeals: |
Opinion Link Opinion Date: 11-24-2009 Opinion Author: CARLTON, J. Holding: REVERSED AND REMANDED |
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| Additional Case Information: |
Topic: Child custody - Material change in circumstances - Exclusion of evidence - Guardian ad litem Judge(s) Concurring: KING, C.J., LEE AND MYERS, P.JJ., IRVING, GRIFFIS, BARNES, ISHEE, ROBERTS AND MAXWELL, JJ. Procedural History: Bench Trial Nature of the Case: CIVIL - CUSTODY |
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| Trial Court: |
Date of Trial Judgment: 09-05-2007 Appealed from: PONTOTOC COUNTY CHANCERY COURT Judge: Michael Malski Disposition: PETITION TO CHANGE CUSTODY DENIED Case Number: 2001-0041-58-MM |
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| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | ELIZABETH GAINEY |
BEN LOGAN |
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| Appellee: | DONNIE EDINGTON | J. MARK SHELTON | ||
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: | Child custody - Material change in circumstances - Exclusion of evidence - Guardian ad litem |
| Summary of the Facts: | When Donnie Edington and Elizabeth Gainey were divorced, Donnie received full custody of the couple’s two girls. The divorce decree did not address Elizabeth’s visitation rights. Over the next three years, while in Donnie’s custody, the girls suffered significant health problems resulting from an apparent overall continuing neglect of their health and welfare. In these three years subsequent to the divorce, Elizabeth made few visits to see her children. Elizabeth eventually filed a Petition for the Modification of Custody, Temporary Establishment of Reasonable Visitation, and in the Alternative, Permanent Establishment of Liberal Visitation. The chancellor entered a temporary agreed order. Elizabeth filed a second petition for contempt and modification. The chancery court granted Donnie’s motion to dismiss on the basis of no showing of a material change in circumstances adverse to the children’s best interests. Elizabeth appeals. |
| Summary of Opinion Analysis: | Issue 1: Material change in circumstances In order for a chancellor to modify a child custody decree, the noncustodial parent must prove that a material change of circumstances has occurred in the custodial home since the most recent custody decree, that the change adversely affects the child, and that modification is in the best interest of the child. A change in circumstances is a change in the overall living conditions in which the child is found, and the totality of the circumstances must be considered. Elizabeth produced proof reflecting that Donnie displayed continuing neglect for the welfare and health of the two girls. Elizabeth also provided evidence that she was denied any meaningful visitation. Elizabeth argues that at least one incident of “spousal swapping” occurred in Donnie’s home involving Donnie and his second wife. As further evidence of home instability, Elizabeth points to the pregnancy and birth of a child by his second wife that was not Donnie’s and the cause of the couple's subsequent separation and divorce. Elizabeth notes that Donnie married his third wife within the same year of the divorce from his second wife. Elizabeth points out the negative moral influence of the third wife’s employment as a sex toy consultant who hosts “Passion Parties” in the family home, as well as her extensive time spent on the Internet while at home and her suggestive pictures taken by Donnie that are posted on various web sites. Elizabeth points to health and educational problems of the couple's two children. Regarding Donnie’s parental judgment, Elizabeth asserts that he allowed supervision of the girls by a neighbor ultimately imprisoned for selling drugs. After considering all of the evidence presented by Elizabeth, the chancellor stated that the poor dental hygiene, staph infection, recurrent ear infections, and similar health issues of the couple's two children were not the type of substantial changes which would meet the test for modification. Regarding the allegations of Donnie’s sexual activities, the chancellor noted that it is not the function of the chancery court to police behavior conducted in the privacy of the bedroom unless that behavior can be shown to adversely impact children. However, evidence of such changes, when considered in combination with one another, shows that a pattern of overall disregard for the welfare of the children occurred. The evidence in the record reflects a continuing pattern of overall neglect for the health and welfare of the girls. The concerns, taken individually, may not be of such gravity as to warrant substantial change. However, when viewed together, the impact upon the children may indeed be of such gravity as to constitute substantial change under a totality of the circumstances. Thus, this issue is remanded. Issue 2: Exclusion of evidence Elizabeth argues that the chancellor erred by excluding the introduction of evidence of Donnie’s MySpace Internet account, which she claims was rife with sexually explicit, highly suggestive, and violent content ranging from bondage and human slavery to sadomasochism. While excluding the printout of the actual MySpace page, the chancellor allowed Elizabeth to cross-examine Donnie regarding the contents of the MySpace page. Hence, Elizabeth suffered no violation of a substantial right. Issue 3: Guardian ad litem Elizabeth argues that in basing his finding of no material change in circumstances primarily on the lack of proof of adverse impact on the children, the chancellor thereby erred in ruling that no report from the guardian ad litem was needed on these issues. Section 93-5-23 requires appointment of a guardian ad litem in custody actions where a charge of abuse or neglect arises, as in the present case. When appointed by the court to investigate, a guardian ad litem is obligated to investigate the allegations before the court, process the information found, report all material information to the court, and (if requested) make a recommendation. The guardian ad litem in the instant case failed to provide the court with an objective record of the evidence or make a recommendation as to whether or not a material change in circumstances has occurred. The proper function of the guardian ad litem is to investigate, make recommendations to a court, or enter a report. The guardian ad litem failed to comply with her statutory duties and failed to provide recommendations or a written report to the court. Hence, there were no recommendations for the chancellor to summarize, reject, or consider. |
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