Jones v. Jones
| Docket Number: | 2008-CA-00675-COA Linked Case(s): 2008-CA-00675-COA ; 2008-CT-00675-SCT |
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| Court of Appeals: |
Opinion Link Opinion Date: 12-15-2009 Opinion Author: Carlton, J. Holding: Affirmed in part, reversed and remanded in part. |
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| Additional Case Information: |
Topic: Divorce: Habitual cruel and inhuman treatment - Child custody - Attorney's fees - COPAC records - M.R.E. 901(b)(1) - M.R.E. 803(6) - Expert testimony Judge(s) Concurring: KING, C.J., MYERS, P.J., IRVING AND ISHEE, JJ.; ROBERTS, J. (CONCURS IN PART WITHOUT SEPARATE WRITTEN OPINION). Non Participating Judge(s): LEE, P.J. Dissenting Author : GRIFFIS, J., with separate written opinion. Concur in Part, Concur in Result 1: BARNES AND MAXWELL, JJ. without separate written opinion. AND MAXWELL, JJ. Procedural History: Bench Trial Nature of the Case: CIVIL - CUSTODY |
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| Trial Court: |
Date of Trial Judgment: 12-07-2007 Appealed from: MADISON COUNTY CHANCERY COURT Judge: Cynthia Brewer Disposition: FINAL JUDGMENT OF DIVORCE ENTERED Case Number: 2007-0022 |
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| Party Name: | Attorney Name: | |||
| Appellant: | STEVEN JONES |
WILLIAM CHARLES BELL |
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| Appellee: | RACHEL JONES | CHARLES ERIC MALOUF |
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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: | Divorce: Habitual cruel and inhuman treatment - Child custody - Attorney's fees - COPAC records - M.R.E. 901(b)(1) - M.R.E. 803(6) - Expert testimony |
| Summary of the Facts: | Rachel Jones was granted a divorce from Steve Jones based on the ground of habitual cruel and inhuman treatment. The chancellor gave Rachel full physical and legal custody of the couple's three children with visitation awarded to Steven, and awarded child support to Rachel in the amount of $1,100 per month. Rachel was awarded attorney’s fees, and both parties were awarded certain fees for various discovery violations. The chancellor denied Steven’s request for attorney’s fees. Steven appeals. |
| Summary of Opinion Analysis: | Issue 1: Habitual cruel and inhuman treatment Steven argues that Rachel failed to introduce sufficient evidence to prove the divorce ground of habitual cruel and inhuman treatment. Such ground for divorce is established by evidence that the conduct of the spouse either endangers life, limb, or health, or creates a reasonable apprehension of such danger, rendering the relationship unsafe for the party seeking relief or is so unnatural and infamous as to make the marriage revolting to the non-offending spouse and render it impossible for that spouse to discharge the duties of marriage, thus destroying the basis for its continuance. In support of her request for a divorce on the stated ground, Rachel presented an array of supporting evidence and abuses. More specifically, Rachel points to a diverse combination of Steven’s behaviors that she found so repugnant to warrant this ground for divorce, including humiliating sexual behavior, gambling addiction, degrading verbal putdowns, bullying, and yelling. The conduct exhibited by Steven combines to create continuing repugnant and emotionally abusive conduct toward Rachel. There is also evidence in the record which provides more than sufficient corroboration of the degrading sexual behavior Rachel found offensive. Although Rachel and Steven continued to reside together in the family home after filing for a divorce, habitual cruel and inhuman treatment is an offense of a continuing nature and is not condoned by the mere continuance of cohabitation. Steven has violated his promises of recovery and rehabilitation to Rachel; therefore, no condonation exists. Issue 2: Child custody Steven argues that the chancellor erred by not awarding joint legal custody of the children to both him and Rachel, as recommended by the guardian ad litem. The chancellor’s decision to allow Steven unsupervised visitation lacks evidentiary support. The record fails to reflect that the guardian ad litem possessed qualifications in the area of child sexual abuse or investigation thereof by training, certification, or experience to investigate child sexual abuse or to render an expert opinion in such matters. The guardian ad litem’s report indicated that she had talked to the children about a range of things, but the record lacks any inquiry of the children into whether or not sexual abuse had occurred. The record is also silent as to whether any report of the allegation had been made to DHS, as required by the Mississippi mandatory report statute, and it also fails to reflect any involvement by a social worker, child psychologist, or other expert trained in child sexual abuse. Due to the lack of assistance or investigation by a qualified professional in the area of child sexual abuse, the case is remanded so that the chancellor may obtain necessary assistance in such matters to assist the court prior to making any factual determination as to whether evidence of sexual abuse exists and any related custody matters. Issue 3: Attorney's fees Steven argues that the chancellor erred in failing to award him attorney’s fees. Since the case is being remanded, Steven’s request for attorney’s fees need not be considered at this time. Steven also argues that the chancellor erred in awarding attorney’s fees in the amount of $10,000 to Rachel. Attorney’s fees are not generally awarded unless the party requesting such fees has established the inability to pay. The record shows that Rachel is employed as a registered nurse, and her current takehome income is $2,600 a month. Steven lost a substantial amount of money by gambling. Rachel testified that she had borrowed money from her mother, and also shopped at garage sales in an attempt to alleviate the family’s financial burden. Rachel’s 8.05 financial statement, coupled with her testimony at trial concerning her income, provided sufficient evidence to support the chancellor’s award of attorney’s fees. Rachel has requested attorney's fees on appeal but has not presented evidence of the fees charged by her attorney or the amount of work involved in defending this appeal. Therefore, she is not entitled to appellate attorney’s fees. Issue 4: COPAC records Steven argues that the chancellor erred in admitting his COPAC records into evidence, arguing that the record custodian’s authentication of the records did not render the records admissible in the absence of someone who could interpret the records. One possible method of authentication under M.R.E. 901(b)(1) is to have a knowledgeable witness testify that the matter is what it is claimed to be. The director of medical records for COPAC stated that she served as the custodian of all COPAC records, and testified as to the authenticity of Steven’s COPAC records. There was no abuse of discretion in the chancellor’s admission of the records, as they fell within M.R.E. 803(6) and were properly authenticated. Issue 5: Expert testimony Steven argues that Rachel’s own treating therapist should not have been allowed to testify as an expert witness. Rachel’s counsel laid a proper evidentiary foundation and presented the witness as an expert in counseling and therapy, and Steven’s counsel conducted a voir dire of her. Based on the record before her, the chancellor then accepted the witness as an expert in counseling and therapy, and there was no abuse of discretion in the chancellor’s acceptance of the witness as an expert or in the admission of her testimony. She is a licensed professional counselor and possesses a Master’s degree in counseling. She counseled Rachel approximately twenty-five times from October 2006 through the day of trial. Thus, there is no merit to this issue. |
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