Ellis v. Ellis
| Docket Number: | 2005-CA-00713-COA | |
| Court of Appeals: |
Opinion Link Opinion Date: 11-07-2006 Opinion Author: Roberts, J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Modification of child custody - Material change in circumstances - Best interests of child Judge(s) Concurring: King, C.J., Lee and Myers, P.JJ., Southwick, Irving, Chandler, Griffis, Barnes and Ishee, JJ. Procedural History: Bench Trial Nature of the Case: CIVIL - CUSTODY |
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| Trial Court: |
Date of Trial Judgment: 04-12-2001 Appealed from: Union County Chancery Court Judge: John C. Ross, Jr. Disposition: CHANCELLOR AWARDED THE PRIMARY PHYSICAL CARE, CUSTODY AND CONTROL OF THE MINOR TO THE FATHER AND AWARDED CHILD SUPPORT TO THE FATHER. Case Number: 2000-76 |
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| Consolidated: Consolidated with 2005-CA-01741-COA Nancy Ellis v. John Ellis; Union Chancery Court; LC Case #: 2000-076-73L; Ruling Date: 07/27/2005; Ruling Judge: Talmadge Littlejohn | ||
| Party Name: | Attorney Name: | |||
| Appellant: | Nancy Ellis |
JOHN TAYLOR MOSES, JOHN H. FREELAND |
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| Appellee: | John Ellis | WILL R. FORD |
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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 child custody - Material change in circumstances - Best interests of child |
| Summary of the Facts: | This is the second appeal of this case. After a one day of trial concerning modification, the chancellor awarded John Ellis custody of the parties’ child, thus modifying custody from the original decree. The lower court further ordered visitation for Nancy Ellis, child support for John, and awarded John attorney fees. Nancy appeals. |
| Summary of Opinion Analysis: | Issue 1: Material change in circumstances Nancy argues that there was no material change in circumstances warranting a change in custody and that John admitted there was no change in circumstances. It is clear that John did not admit to a lack of a material change in circumstances, but that he could not add additional information to the testimony already given at trial. The chancellor found that the material change in circumstances that occurred was Nancy’s continued violation of court orders pertaining to visitation and continued hindering of the visitation time John did enjoy as well as the father/daughter relationship, shown by the facts that Nancy smuggled a cell phone into John’s home for their daughter’s secret use and Nancy’s continued scheduling of various events for their daughter to participate in during John’s visitation. Visitation, or interference thereof, should generally not be considered by the lower court while hearing the plea of a non-custodial parent to modify custody as the better rule would be for a chancellor to enforce contempt orders through incarceration rather than resorting to a change of custody, but in some extraordinary cases the interference with a noncustodial parent’s visitation rises to the level where it constitutes a material change in circumstances. Since the divorce John has been forced to obtain a writ of assistance to secure visitation, subject himself and the couple’s daughter to three custody modification hearings with three different chancellors, an appeal to the Court of Appeals, and an emergency order granting him visitation following the summer of 2004. Additionally, there is ample evidence that Nancy has intentionally refused to let John see their daughter and that she has violated several court orders. While any of the events, when viewed in isolation, would not rise to the level permitting a change in custody, when viewed together, in addition to their effect on the emotional wellbeing of the couple’s daughter, the chancellor did not commit manifest error or abuse his discretion in finding a material change in circumstances that adversely affected the child. Issue 2: Best interests of child Nancy argues that the lower court erred in holding that a custody change was in the best interests of the child. While the lower court did not explicitly state as such, it is apparent from the record that the continuity of care factor was decided in favor of John. This was error. While it is obvious from the parties procedural history and testimony at their most recent trial that Nancy has purposefully and repeatedly denied John his right to visitation with his daughter, it is equally obvious that she has acted as the child’s primary caregiver since the parties separated seven years prior to their most recent modification trial. The lower court found that the emotional ties factor favored neither party. However, the record does not support a finding that this factor favors neither parent, as the overwhelming and obvious emotional tie between Nancy and her daughter, however destructive to the child’s emotional health, overshadowed any relationship between the child and John. The benefit of this factor in the totality to Nancy is lessened by the fact an expert testified that the relationship Nancy and her daughter shared was actually unhealthy. While the chancellor did err in his determination of two factors, based on the chancellor’s overall analysis and consideration, together with the testimony given at trial, especially that of two experts, the lower court did not abuse its discretion in the determination that the best interests of the child would be served by a change in custody. |
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