McDonald v. McDonald
| Docket Number: | 2007-CA-00886-SCT Linked Case(s): 2007-CA-00886-SCT |
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| Supreme Court: | Opinion Link Opinion Date: 06-17-2010 Opinion Author: Randolph, J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Contempt - Modification of custody - Material change in circumstances - Albright factors - Guardian ad litem - Jurisdiction - Section 43-21-151 Judge(s) Concurring: Carlson, P.J., Dickinson, Lamar, Kitchens and Chandler, JJ. Judge(s) Concurring Separately: Dickinson, J., Specially Concurs with Separate Written Opinion Joined by Carlson, P.J., Randolph, Lamar and Chandler, JJ. Concur in Part, Concur in Result 1: Pierce, J., Concurs in Part and in Result With Separate Written Opinion Concur in Part, Concur in Result Joined By 1: Waller, C.J., and Graves, P.J., Joins in Part. Procedural History: Bench Trial Nature of the Case: CIVIL - DOMESTIC RELATIONS |
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| Trial Court: |
Date of Trial Judgment: 05-15-2007 Appealed from: RANKIN COUNTY CHANCERY COURT Judge: Dan Fairly Disposition: For 2007-CA-00886-SCT-- The chancellor granted Steve’s motion for immediate transfer of custody. In 2008-CA-00240-SCT, the chancellor approved the GAL's motion for modification and to terminate the mother's overnight visitation. In 2008-CA-01484-SCT, the Rankin County Chancery Court asserted its jurisdiction over the Madison County Youth Court and dismissed Jennifer's allegation of child abuse. Case Number: 53,464 |
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| Consolidated: Consolidated with 2008-CA-00240-SCT Jennifer McDonald v. Michael Steven McDonald; Rankin Chancery Court; LC Case #: 53,464; Ruling Date: 01/22/2008; Ruling Judge: Dan Fairly; Consolidated with 2008-CA-01484-SCT Jennifer McDonald v. Michael Steven McDonald; Rankin Chancery Court; LC Case #: 53,464; Ruling Date: 08/20/2008; Ruling Judge: Dan Fairly; Consolidated with 2008-CA-01484-SCT Jennifer McDonald v. Michael Steven McDonald; Rankin Chancery Court; LC Case #: 53,464; Ruling Date: 08/20/2008; Ruling Judge: Dan Fairly. | ||
| Party Name: | Attorney Name: | |||
| Appellant: | Jennifer McDonald |
JAMES W. CRAIG, DALE DANKS, JR., KIMBERLY PINE TURNER |
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| Appellee: | Michael Steven McDonald | MARTY CRAIG ROBERTSON |
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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: | Contempt - Modification of custody - Material change in circumstances - Albright factors - Guardian ad litem - Jurisdiction - Section 43-21-151 |
| Summary of the Facts: | Two sons were born of the marriage of Michael Steven McDonald and Jennifer Lee Mallory McDonald. In 2002, Steve was convicted of possession of cocaine with intent to sell for a crime committed in 1998. He was sentenced to thirty years, all suspended; five years’ probation; and a fine of $3,000. The couple separated in May 2003. An irreconcilable-differences divorce was granted in October 2003. An agreed settlement gave Jennifer custody of the boys, and Steve’s visitation also was agreed upon. Child support was set at $520 monthly, plus one-half of the boys’ health insurance; out-of-pocket medical expenses; and day-care costs. Also, Steve agreed to pay marital debt for four specified accounts. In the first year after the divorce, Steve did not pay the full amount of child support consistently, and did not comply fully with other requirements of the agreement. Jennifer filed contempt proceedings against Steve. Subsequently, Steve moved to reduce the child-support amount and, on the advice of his then-attorney, began paying $300 per month. He paid that amount consistently for a year. In October 2005, he began paying $520 per month. From that date forward, with the exception of two months (which was made up in subsequent payments), Steve timely paid the $520 per month. However, he did not pay arrearage, which Jennifer claimed exceeded $5,000 in child support and $10,000 overall. While these matters were pending, Jennifer moved to modify visitation, alleging physical and sexual abuse by Steve. Jennifer’s modification motion was granted, and Steve’s visitation was restricted. Later, supervised visitation was allowed, and by October 2006, full visitation had been restored. In August 2006, Steve moved to modify custody, alleging that a material change of circumstances had occurred that was detrimental to the boys, and that he should be awarded custody. Jennifer renewed her contempt motion. The chancellor found Steve in contempt and ordered Steve to pay the judgment within forty-five days of the order. The chancellor then declared that the judgment had cleansed the contempt, and proceeded with the modification motions. At the hearing, it was established that the boys had been dismissed from three separate day-care centers. The behavioral problems exhibited at school and/or day care included: biting, kicking, choking, and hitting other children and each other. The boys were described as being generally out of control when they were with Jennifer. The chancellor granted Steve’s motion for modification, finding that there had been a material change of circumstances since the last custody decree, that the change had adversely affected the welfare of the boys, and that a modification of custody was in both boys’ best interests. The chancellor awarded physical custody of the boys to Steve. The chancellor granted liberal visitation to Jennifer, including overnight visits on Wednesdays during the school year. Prior to the planned date of custody transfer, Steve, citing newly discovered evidence, filed an emergency motion requesting that the boys be transferred immediately to his custody. The chancellor granted Steve’s motion for immediate transfer of custody. Jennifer appeals. In October 2007, Steve filed a complaint for modification to terminate Jennifer’s Wednesday overnight visitation. He alleged that the visits had caused behavioral and emotional problems at school on Thursdays. The chancellor ordered that Jennifer’s Wednesday overnight visitations be halted temporarily. An agreed order of modification, as to content and form, was executed by the parties and ratified by the court. In April 2008, after Steve, his wife, and the boys had moved to Madison County, Jennifer filed a motion for contempt, and Steve counterclaimed for contempt. Madison County DHS requested and received from the Madison County Youth Court Judge an oral order transferring custody of the boys to Madison County DHS, which then transferred them to Jennifer’s custody. Steve challenged the jurisdiction of the Madison County Youth Court. Steve filed an emergency motion in Rankin County Chancery Court, requesting that court to assert jurisdiction over the abuse allegation. After no action was taken in Madison County, Steve filed another motion in Rankin County Chancery Court asking it to assert jurisdiction. The chancellor issued his order asserting jurisdiction over the child-abuse allegation. After hearing the matter, the chancellor dismissed it. Jennifer appeals. |
| Summary of Opinion Analysis: | Issue 1: Modification motion Jennifer argues that the chancellor committed legal by acting upon Steve’s modification petition after holding him in contempt. A contemnor’s hands are cleansed by the entry of the final judgment and that from and after the date of the final decree, the matter of modification of the previous divorce decree may be revived. Thus, a prior modification petition need not be dismissed and resubmitted, but may be ruled upon immediately after a cleansing judgment. Issue 2: Material change in circumstances Jennifer argues that the chancellor overemphasized the boys’ problems that occurred shortly after the divorce; and the chancellor’s own views, as well as those of the court-appointed experts, of the relative parenting skills of the parties. She argues also that the chancellor failed to make specific findings applicable to each boy individually, such that it was error to find that the best-interests standard had been applied for both boys. The non-custodial party must prove that a substantial change in circumstances has transpired since issuance of the custody decree; that this change adversely affects the child's welfare; and that the child's best interests mandate a change of custody. Parental behavior that poses a clear danger to a child's mental or emotional health can justify a custody change. The chancellor considered the totality of circumstances affecting the boys over the entire period since the divorce. He referred specifically to the three expulsions from day care, the kindergarten failures, and the behavior problems continuing up until the time of the hearing. He found that Jennifer was “overwhelmed” and “in denial.” He heard Jennifer deny seven instances of misbehavior that were documented in the boys’ school records from 2006-07. The chancellor clearly considered specific facts and conduct peculiar to each child, and applied the proper legal analysis for each to determine each boy’s best interest. Issue 3: Albright factors The chancellor made on-the-record findings of the Albright factors, as well as other factors relevant to the case, in determining that the best interest of the children – the polestar factor – favored transfer of custody of the boys to Steve. Jennifer argues that the chancellor improperly weighed four of the factors: health of the children; home, school, and community record of the children; moral fitness of the parents; and parenting skills. Jennifer argues that the chancellor repeated the same error as in the material-change-of-circumstances analysis, that is, that the chancellor failed to consider evidence of recent improvements. The record reveals that the chancellor did consider the reports of improvement, but was convinced by evidence to the contrary. Thus, the chancellor did not ignore this evidence, but rather weighed it differently than Jennifer would like, which is within his prerogative. Regarding the moral fitness of the parents, Jennifer argues that the factor favors her more than just slightly, as Steve is a convicted felon. However, the chancellor took note of the fact that Steve’s offense had occurred before he married and that nine years had passed during which he had not continued into any further involvement in the drug world. Regarding parenting skills, the chancellor was persuaded by the GAL’s report on her visits to both homes, but that was not the extent of the evidence. The chancellor also heard testimony from and received a written report from Dr. Wheat, who had counseled Steve and Jennifer on parenting skills. Issue 4: Guardian ad litem Jennifer argues that the GAL exceeded the proper role of a GAL by offering hearsay testimony, as well as taking “on a role as a litigant/expert” by providing a written report to the court, making recommendations, discussing the views of the court-appointed counselor, filing a motion, testifying, examining witnesses, and meeting ex-parte with the chancellor. Other than offering hearsay testimony, the GAL was simply following the provisions of the GAL statute and caselaw. The GAL would have been derelict in her duty to zealously represent the boys’ best interests if she had failed to interview the boys, consider the opinions of experts, marshal evidence, make an independent recommendation, question witnesses, submit reports, and make herself available for cross-examination. The chancellor heard all witnesses, read all the reports, and made his own decision based upon independent findings of fact. While it was error for the chancellor to find that the rules of evidence did not apply in this adversarial proceeding, Jennifer agreed to entry of the modification order, thus mooting an appeal of that issue. During the GAL’s oral report, which included hearsay, Jennifer did not object to those portions of the testimony that might have been subject to hearsay rulings. A trial court will not be put in error on appeal for a matter not presented to it for decision. Issue 5: Jurisdiction Jennifer argues that the chancellor erred by asserting jurisdiction, because the statutory exception found in section 43-21-151(1) is inapplicable, as no custody action was pending in chancery court at the time of the abuse allegation. However, contempt matters are ancillary to the original action, giving the original court continuing jurisdiction over the subject matter. Section 93-5-23 allows the chancery court to investigate, hear and make a determination in a custody action when a charge of abuse arises in the course of a custody action as provided in section 43-21-151. It was immaterial to the chancery court’s continuing jurisdiction that Steve and the boys had moved to Madison County. There was no error by the chancellor in determining that the chancery court could assert original jurisdiction over the abuse allegation, as the chancery court had continuing jurisdiction; for the jurisdictional statute grants jurisdiction to a youth court in allegations of child abuse, but excepts that a chancery court “may proceed” if a custody action is pending. Additionally, the Madison County Youth Court failed to comply with the statutory process. |
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