McSwain v. McSwain
| Docket Number: | 2004-CT-00088-SCT Linked Case(s): 2004-CA-00088-COA ; 2004-CT-00088-SCT ; 2004-CA-00088-COA ; 2004-CA-00088-COA |
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| Supreme Court: | Opinion Link Opinion Date: 12-14-2006 Opinion Author: Cobb, P.J. Holding: The judgment of the trial court is reinstated and affirmed. |
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| Additional Case Information: |
Topic: Modification of custody - Material change in circumstances - Best interests of child Judge(s) Concurring: Smith, C.J., Waller, P.J., Diaz, Easley, Carlson, Dickinson and Randolph, JJ. Dissenting Author : Graves, J., Dissents Without Separate Written Opinion. Procedural History: Bench Trial Nature of the Case: CIVIL - DOMESTIC RELATIONS Writ of Certiorari: Yes Appealed from Court of Appeals |
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| Trial Court: |
Date of Trial Judgment: 09-16-2003 Appealed from: Lamar County Chancery Court Judge: James H.C. Thomas, Jr. Disposition: Transferred custody of Charles Miller McSwain from his mother to his father. Case Number: 2000-0231-Th |
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| Note: | This judgment reverses and remands a previous judgment by the Court of Appeals. See the original COA opinion at: http://www.mssc.state.ms.us/Images/OPINIONS/CO30537.PDF | |
| Party Name: | Attorney Name: | |||
| Appellant: | Ginger M. McSwain (Hartfield) |
WILLIAM E. ANDREWS, III |
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| Appellee: | Charles C. McSwain | JAMES R. HAYDEN |
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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 - Material change in circumstances - Best interests of child |
| Summary of the Facts: | Charles and Ginger McSwain were divorced in 2000. In the settlement agreement, they agreed to joint legal custody of their son with Ginger having primary physical custody. In 2002, Ginger voluntarily admitted herself into the Jolimar Wellness Institute for drug and alcohol rehabilitation. The parties agreed privately that Charles would have physical possession of the couple’s son for the duration of Ginger’s stay. Before Ginger had completed her extended care program, Charles filed a petition for modification and emergency hearing without notice, seeking permanent modification of child custody. After a trial, the court transferred physical custody of the child from Ginger to Charles, and granted every reasonable visitation to Ginger, albeit within a specific schedule. The chancellor determined that there had been a material change in circumstances which had an adverse impact on the child. Ginger appealed, and the Court of Appeals reversed and rendered with respect to the chancellor’s decision to modify custody. The Supreme Court granted certiorari. |
| Summary of Opinion Analysis: | The Court of Appeals found that the material changes in circumstances in the child’s home life that would have an adverse affect on him were not continuous and no longer existed at the time of the trial. The Court of Appeals stated that the chancellor abused his discretion because he focused on the potential for future problems rather than presently-existing circumstances and, because Ginger was drug and alcohol free at the time of the hearing, the material change in circumstances was not contemporaneous and could not mandate a change of custody. Here, the chancellor cited numerous reasons for his decision to modify custody. The factors considered included Ginger’s depression and the fact that she had suicidal thoughts. Ginger’s drug and alcohol addiction, her failure to attend aftercare, and the fact that Ginger still associates with her former drug partner also weighed heavily in the chancellor’s decision. By Ginger’s own admission on the witness stand, she will always be an addict, and, as the chancellor mentioned in his judgment, she continues to suffer from the negative feelings that accompany an addiction. Ginger’s drug addiction transpired after the custody arrangement to which she and Charles agreed was incorporated into their irreconcilable differences divorce decree. It is most certainly a material change that adversely affects the child, and because her drug addiction is something that Ginger will likely have to endure for years, if not the rest of her life, it continues. Also, the fights that took place between Ginger and her current husband were often extremely heated and very violent. These types of fights constituted a material change in circumstances that would adversely affect the child. Taken in the aggregate, the factors considered by the chancellor obviously constitute sufficient circumstances to warrant a change in custody that would be in the child’s best interests. |
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