McCarty v. McCarty
| Docket Number: | 2009-CA-01062-COA | |
| Court of Appeals: |
Opinion Link Opinion Date: 02-01-2011 Opinion Author: Maxwell, J. Holding: Affirmed. |
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| Additional Case Information: |
Topic: Modification of custody - Guardian ad litem's recommendation - Pre-divorce behavior - M.R.E. 401 - M.R.E. 402 - Material change in circumstances Judge(s) Concurring: Lee and Myers, P.JJ., Irving, Griffis, Ishee, Roberts and Carlton, JJ. Concurs in Result Only: King, C.J., and Barnes, J. Procedural History: Bench Trial Nature of the Case: CIVIL - CUSTODY |
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| Trial Court: |
Date of Trial Judgment: 06-02-2009 Appealed from: JACKSON COUNTY CHANCERY COURT Judge: D. NEIL HARRIS Disposition: MODIFIED CUSTODY FROM JOINT TO SOLE CUSTODY TO FATHER Case Number: 2004-1807NH |
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| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | Lisa M. McCarty (Kole) |
JIMMY D. MCGUIRE |
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| Appellee: | Jeremy McCarty | MARK V. KNIGHTEN |
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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 recommendation - Pre-divorce behavior - M.R.E. 401 - M.R.E. 402 - Material change in circumstances |
| Summary of the Facts: | As part of their 2004 irreconcilable-differences divorce, Lisa Kole and Jeremy McCarty agreed to joint physical custody of their two children. Eventually, however, they both filed motions to modify custody. The court awarded Jeremy sole physical custody and Lisa visitation. Lisa appeals. |
| Summary of Opinion Analysis: | Lisa argues the chancellor put undue weight on the guardian ad litem’s unreliable reports and recommendations. According to Lisa, the GAL neglected her duties and produced an unreliable report. However, the parties mutually requested the chancellor appoint a GAL. So the underlying performance of the GAL is not the controlling issue. The GAL’s reports and testimony was evidence. And as with all evidence presented, the chancellor, as the fact-finder, was tasked with deciding how much weight it deserved. The chancellor did not merely adopt the GAL’s Albright findings. He instead conducted an independent analysis of these factors. Though he considered the report along with the other evidence, he differed with the GAL on certain points. Thus, he did not abuse his discretion in drawing from the GAL reports in reaching his conclusions. Lisa takes issue with the chancellor’s refusal to admit evidence of Jeremy’s past drug and alcohol abuse, including three DUIs. She also complains the chancellor failed to consider Jeremy’s absence as a father to his three older sons from past relationships. Although Lisa tried to admit the evidence of drugs and DUIs to show a pattern of conduct, she failed to produce any evidence of drug or alcohol abuse since the divorce to establish a present or more recent pattern. There was no error in the chancellor’s conclusion that Jeremy’s pre-divorce behavior was not relevant under M.R.E. 401 and 402 to the subsequent modification request. When considering a modification of child custody, the proper approach for chancellors is to first identify the specific change in circumstances, and then analyze and apply the Albright factors in light of that change. Here, the chancellor considered the totality of the circumstances since the divorce. The chancellor agreed with the GAL that Lisa had an unhealthy preoccupation with Jeremy’s remarriage—a circumstance that occurred after the divorce – and supported his conclusions with post-divorce incidents between Lisa and Jeremy’s new wife. Substantial evidence supported the chancellor’s determination that there had been a material change in circumstances. |
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