Copeland v. Copeland
| Docket Number: | 2003-CA-02090-SCT | |
| Supreme Court: | Opinion Link Opinion Date: 12-16-2004 Opinion Author: Randolph, J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Divorce: Adultery - Recusal of judge - Audio recordings - Interrogation of witnesses by judge - M.R.E. 614(b) - Child custody Judge(s) Concurring: Smith, C.J., Waller and Cobb, P.JJ., Easley, Carlson, Graves and Dickinson, JJ. Non Participating Judge(s): Diaz, J. Procedural History: Bench Trial Nature of the Case: CIVIL - CUSTODY |
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| Trial Court: |
Date of Trial Judgment: 09-04-2003 Appealed from: Harrison County Chancery Court Judge: Carter Bise Disposition: The trial judge denied a motion to recuse and entered a judgment granting Appellee a divorce, granting Appellant and Appellee joint legal custody of their child, and granting paramount physical custody of the child to Appellee with visitation to Appellant. Case Number: 02-01131 |
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| Party Name: | Attorney Name: | |||
| Appellant: | Kelly B. Copeland |
DAMON SCOTT GIBSON |
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| Appellee: | Gregory Copeland | ALBERT LIONEL NECAISE |
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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: | Divorce: Adultery - Recusal of judge - Audio recordings - Interrogation of witnesses by judge - M.R.E. 614(b) - Child custody |
| Summary of the Facts: | Gregory Copeland filed for divorce from Kelly Copeland on the grounds of habitual cruel and inhuman treatment, adultery or alternatively, irreconcilable differences. Kelly filed an answer and counterclaim seeking a divorce on the grounds of habitual cruel and inhuman treatment or, alternatively, irreconcilable differences. Prior to the matter going to trial, Kelly filed a motion for recusal in an attempt to persuade the chancellor to recuse from the case. The court denied the motion. The court entered its judgment granting Greg a divorce on the ground of adultery; Greg and Kelly joint legal custody of their son; paramount physical custody of the child to Greg; and visitation to Kelly. Kelly appeals. |
| Summary of Opinion Analysis: | Issue 1: Recusal of judge Kelly filed a motion for recusal based upon her concern about an alleged relationship between Judge Bise and Greg’s counsel, Albert Necaise. She received information that Necaise introduced Judge Bise at a political rally during Judge Bise’s election campaign. Judges should disqualify themselves in proceedings in which their impartiality might questioned by a reasonable person knowing all the circumstances. A thorough review of the record reveals that Judge Bise properly denied the motion to recuse. Necaise introduced all of the judicial candidates that day at the rally–not just Judge Bise. Furthermore, Necaise had been introducing candidates at the rally for over twenty years. Issue 2: Audio recordings Kelly argues that the court erred in admitting tape recordings made by Greg containing conversations between a man named Mike Blackwell and Kelly, because Mike Blackwell’s voice was never identified on the tapes. Because Kelly failed to object contemporaneously in regard to identification of the voices, she waived her objection. Kelly also argues that it was improper for Judge Bise to examine Greg on the stand regarding the identification of the voices on the tapes. Pursuant to M.R.E. 614(b), the court may interrogate witnesses, whether called by itself or a party. However, the judge cannot abandon his impartial position as a judge and assume an adversarial role. Here, Judge Bise did not abuse his discretion by examining Greg on the stand. Issue 3: Child custody Kelly argues that the court erred in granting physical custody of the couple’s son to Greg. The chancellor undertook a lengthy analysis of the various Albright factors and explained in his judgment how he evaluated the evidence bearing on each factor. The chancellor concluded that factors favoring neither parent were age of the child; health of the child; age of the parents; physical and mental health of the parents; emotional ties of the parent and child; and home, school and community record of the child. Of the remaining factors, the chancellor concluded that all favored Greg. The chancellor properly considered and applied the Albright factors, and his specific findings are supported by the record. |
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