Giannaris v. Giannaris


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Docket Number: 2005-CT-00498-SCT
Linked Case(s): 2005-CA-00498-COA ; 2005-CT-00498-SCT ; 2005-CA-00498-COA

Supreme Court: Opinion Link
Opinion Date: 07-19-2007
Opinion Author: Randolph, J.
Holding: Reversed and Rendered in Part; Reversed and Remanded in Part

Additional Case Information: Topic: Modification of custody - Expert testimony - M.R.E. 702
Judge(s) Concurring: Smith, C.J., Waller, P.J., Easley, Carlson, Dickinson and Lamar, JJ.
Concurs in Result Only: Diaz, P.J., and Graves, J.
Procedural History: Bench Trial
Nature of the Case: CIVIL - CUSTODY
Writ of Certiorari: Yes
Appealed from Court of Appeals

Trial Court: Date of Trial Judgment: 08-17-2004
Appealed from: Harrison County Chancery Court
Judge: Carter Bise
Disposition: On July 30, 2002, a Final Judgment of Divorce between Stephen and Elizabeth was filed in the Chancery Court of Harrison County. Incorporated into the final judgment was the Child Custody, Support, and Visitation Settlement Agreement executed by Stephen and Elizabeth. The agreement provided Elizabeth with paramount physical control and custody of S.G. while granting Stephen liberal visitation. The following year, Stephen filed a Complaint for Contempt, Modification and Other Relief seeking primary physical custody of S.G. Following a hearing, the Chancery Court of Harrison County modified custody and granted Stephen primary physical custody. Specifically, the chancellor determined that the substantial visitation provided by the agreement, combined with the fact that Stephen, a weather forecaster for the United States Navy, had been transferred to San Diego, California, constituted a substantial change in circumstances. Moreover, the chancellor found that Elizabeth’s refusal to communicate and cooperate with Stephen and her attitude toward Stephen’s present wife constitutes an adverse circumstance. The chancellor then conducted an Albright analysis and found that the factors favored Stephen.
Case Number: C2402-02-423

Note: This opinion reverses and renders the chancellor decision which conflated isolated events which resulted in the application of an erroneous legal standard, and abused his discretion in admitting the testimony of Gunkel. This opinion remands the case for a determination of support and visitation.

  Party Name: Attorney Name:  
Appellant: ELIZABETH JOY (SELBY) GIANNARIS




WENDY C. HOLLINGSWORTH DUSTIN NORMAN THOMAS



 

Appellee: STEPHEN ANDREW GIANNARIS WILLIAM E. TISDALE  

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Topic: Modification of custody - Expert testimony - M.R.E. 702

Summary of the Facts: Stephen and Elizabeth Giannaris were granted a divorce in the Harrison County Chancery Court. Incorporated into the final judgment was a “Child Custody, Support, and Visitation Settlement Agreement.” The agreement provided Elizabeth with paramount physical control and custody of the couple’s child, while granting Stephen liberal visitation. The following year, Stephen filed a complaint for contempt, modification and other relief seeking primary physical custody of the child. The court modified custody and granted Stephen primary physical custody. Elizabeth appealed, and the Court of Appeals affirmed. The Supreme Court granted certiorari.

Summary of Opinion Analysis: Issue 1: Modification of custody Elizabeth argues that the chancellor erred in modifying custody and granting Stephen primary physical custody of the couple’s child. The test for a modification of child custody is whether there has been a material change in circumstances which adversely affects the welfare of the child and whether the best interest of the child requires a change of custody. A non-custodial parent must first sufficiently prove a material change in circumstances which has an adverse effect on the child that clearly posits or causes danger to the mental or emotional well-being of a child, as a condition precedent to re-weighing the Albright factors. The mere moving of the custodial parent does not constitute a material change in circumstances for child custody modification purposes. Logic dictates that if the move of the custodial parent is not considered a material change in circumstances, then the move of the non-custodial parent is likewise not a material change in circumstances. In this case, the chancellor erred in finding material changes in circumstances and then disuniting isolated incidents to find an adverse affect on the couple’s child. The material change in circumstances relied upon by the chancellor was the move of the non-custodial parent. Stephen’s employment with the United States Navy comes with the eminently foreseeable certainty of transfers throughout his career. Issue 2: Expert testimony Stephen tendered a clinical social worker as an expert witness. She was the child’s therapist while employed at the Navy Family Service Center. Under M.R.E. 702, the court must determine that the expert testimony is relevant, i.e., the requirement that the testimony must assist the trier of fact means the evidence must be relevant, and must determine whether the proffered testimony is reliable. In this case, there is no evidence that the expert’s opinion was either based upon sufficient facts or data or the product of reliable principles and methods. To the contrary, her testimony was that her opinions were derived from unrecorded sessions with the couple’s child without independent verification of the truthfulness vel non of the allegations, and based upon her five-week training and instincts. The trial court erred in granting any weight to the expert’s testimony, as it lacked sufficient reliability under M.R.E. 702.


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