Floyd v. Floyd
| Docket Number: | 2005-CA-02270-SCT | |
| Supreme Court: | Opinion Link Opinion Date: 02-15-2007 Opinion Author: Smith, C.J. Holding: Reversed and Remanded |
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| Additional Case Information: |
Topic: Modification of custody - Guardian ad litem’s recommendations - On-the-record findings Judge(s) Concurring: Waller, P.J., Diaz, Easley, Carlson, Graves, Dickinson and Randolph, JJ. Non Participating Judge(s): Cobb, P.J. Nature of the Case: CIVIL - CUSTODY |
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| Trial Court: |
Date of Trial Judgment: 11-23-2005 Appealed from: Simpson Chancery Court Judge: J. Larry Buffington Disposition: Chancery Court of Simpson County denied Appellant's motion for modification of the custody of their minor child. Case Number: 2001-0173 |
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| Party Name: | Attorney Name: | |||
| Appellant: | Sandra Faye Floyd |
SHERRI MURIEL FLOWERS |
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| Appellee: | Nickie Floyd | PRO SE |
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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: | Modification of custody - Guardian ad litem’s recommendations - On-the-record findings |
| Summary of the Facts: | Sandra and Nickie Floyd were divorced. The decree included a Separation and Property Settlement Agreement, which awarded the parties joint custody of their ten-year old child and gave physical custody to Nickie during the week and to Sandra on the weekends and during the summer. Nickie filed an Amended Motion for Modification requesting that the chancery court restrict Sandra’s visitation with their child. The court denied the request for modification but reduced Sandra’s visitation to every other weekend and granted Nickie at least one week of visitation during the summer. Nickie filed a petition to hold Sandra in contempt and a Motion for Emergency and Other Relief, which was based on Sandra’s alleged refusal to return their child at the end of the summer and her enrollment of him in another school district. Sandra subsequently filed a Counter Claim for Contempt and For Modification. The chancery court granted Nickie’s Motion for Emergency Relief and ordered Sandra to immediately return the child to his father’s custody. The chancery court eventually denied Sandra’s Motion for Modification, and Sandra appeals. |
| Summary of Opinion Analysis: | Sandra argues that the chancellor committed reversible error by failing to address the guardian ad litem’s recommendations. The guardian ad litem appointed by the court concluded that the child was mature and capable of electing his custodial arrangement and that he desired to live with his mother. While the chancellor properly appointed a guardian to investigate the allegations of abuse that were made by the child, he failed to address or include a summary of the guardian’s qualifications or recommendations when he rendered the decision to deny modification. While a chancellor is in no way bound by a guardian’s recommendations, a summary of these recommendations in addition to his reasons for not adopting the recommendations is required in the chancellor’s findings of fact and conclusions of law. As the chancellor’s opinion lacked both of these elements, the issue is reversed and remanded for specific findings with regard to the guardian’s report. Sandra also argues that the chancellor abused his discretion in failing to make on-the-record findings of the Albright factors when he awarded custody to Nickie. Although the chancery court properly appointed a guardian to investigate the allegations of abuse, the chancellor did not address whether there had been a material change in circumstances or analyze the evidence under the Albright factors in denying Sandra’s motion for modification of custody. Because both of these elements are required when considering a request for modification, this issue is also remanded. While the chancellor is not bound by the election of a minor child, when declining to follow a child’s election, the chancellor is required to make specific findings explaining the reasons for the refusal. |
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