Wilson v. Wilson


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Docket Number: 2010-CA-01361-COA

Court of Appeals: Opinion Link
Opinion Date: 01-31-2012
Opinion Author: Maxwell, J.
Holding: Affirmed

Additional Case Information: Topic: Modification of custody - Bias of judge - Material change in circumstances - Albright factors
Judge(s) Concurring: Lee, C.J., Irving and Griffis, P.JJ., Barnes, Ishee, Roberts, Carlton and Russell, JJ.
Non Participating Judge(s): Fair, J.
Procedural History: Bench Trial
Nature of the Case: CIVIL - DOMESTIC RELATIONS

Trial Court: Date of Trial Judgment: 07-19-2010
Appealed from: Rankin County Chancery Court
Judge: Dan Fairly
Disposition: CUSTODY MODIFIED FROM MOTHER HAVING PRIMARY PHYSICAL CUSTODY TO JOINT PHYSICAL CUSTODY
Case Number: 59753

  Party Name: Attorney Name:  
Appellant: Lauren Wilson




JAMES D. BELL



 

Appellee: Michael Wilson CHRISTOPHER A. TABB  

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Topic: Modification of custody - Bias of judge - Material change in circumstances - Albright factors

Summary of the Facts: Lauren and Michael Wilson were granted an irreconcilable-differences divorce in 2007. The chancellor’s final judgment incorporated the parties’ agreement for the custody of their two minor children. The chancellor awarded Lauren primary physical custody of the children with the parties having joint legal custody. The agreement granted Michael extensive visitation. In 2009, Lauren filed an “Abuse/Neglect Complaint” in Youth Court. The youth court awarded temporary custody to Lauren and ordered that there be no contact of any kind between the two children and Michael. In 2010, the youth court vacated its no-contact order as to one of the daughters only. After investigating the alleged abuse, the Mississippi Department of Human Services recommended that the youth court take “No Action.” A clinical psychologist found no evidence of abuse. In 2010—shortly after commencing youth-court proceedings—Lauren moved the chancellor to modify the custody and visitation arrangement. Michael counterclaimed for a modification of custody. The chancellor entered a written order finding a material change in circumstances had occurred in Lauren’s home since the entry of the original custody order that was adverse to the children’s mental and emotional well-being. The chancellor found the best interests of the children required a change in custody, with the parties having joint physical and joint legal custody. Under the chancellor’s order, physical custody of both children alternates each week. The order prohibits grandparents from being present during custody exchanges. It also prohibits telephone contact between the children and the non-custodial parent. Michael’s child-support obligation was reduced by half. Finally, the chancellor ordered both parties to continue counseling sessions at least twice per month. Lauren appeals.

Summary of Opinion Analysis: Issue 1: Bias of judge Lauren questions the chancellor’s impartiality, and she argues that many of the chancellor’s findings clearly demonstrate his bias against her. However, at no point did Lauren request that the chancellor recuse himself. Failure to move to recuse or to contemporaneously object to alleged judicial impropriety procedurally bars the issue from review. In addition, the allegations of judicial impropriety are unfounded. The chancellor’s decision to weigh against Lauren her pernicious filing of the abuse complaint was not a reflection of the chancellor’s bias. Rather, it was a reflection of his impartial application of the law to these facts. Issue 2: Material change in circumstances Lauren argues that the chancellor erred in finding a material change in circumstances adverse to the children had occurred since the original custody order. In determining whether a material change has occurred, chancellors are instructed to consider the totality of the circumstances. If there has been a material change, chancellors must then analyze and apply the Albright factors in light of that change. The chancellor found Lauren had essentially utilized her daughter’s hysteria during a counseling session to file a baseless abuse and neglect complaint against Michael. The chancellor further found Lauren, who had been the custodial parent, had not been adequately disciplining the children. Unlike Lauren, the chancellor found Michael to be “very believable” and “very candid.” The chancellor further found Michael “reasonable” and “patient” for participating in counseling sessions, even after Lauren filed “a mean-spirited, vicious . . . report [of abuse and neglect with] the Department of Human Services[.]” The chancellor also found the younger child was “beginning to be . . . adversely harmed[.]” There is no error in the chancellor’s finding of a material change in circumstances. The chancellor’s factual finding that Lauren’s abuse complaint against Michael was baseless is convincingly supported by the record. As a result of Lauren’s actions, Michael was deprived of seeing his children for a considerable time. The chancellor remained within his discretion in finding the environment created by Lauren had caused the couple’s daughter to mirror her and have anxiety about seeing her father. Issue 3: Albright factors Lauren challenges the chancellor’s Albright analysis. Lauren argues the chancellor erred by finding the continuity-of-care factor inapplicable to modification actions. The “continuity of care” factor is applicable in modification actions. Though the chancellor was too rigid in his application of the particular Albright factor for the continuity of care, it is implicit in the chancellor’s ruling that he considered Lauren’s primary care of the children since the original custody order—the chancellor just found she had not been a very good primary caretaker. Lauren also claims the chancellor erred in not finding the factor for the emotional ties between the parents and children favored her. On the surface, it is true that the couple’s daughter appears to have a closer emotional tie to her mother. But the chancellor found that her antipathy toward her father was a result of Lauren’s actions. Lauren contends the chancellor should not have found the moral-fitness factor favored Michael. While the chancellor should have considered more than the parties’ romantic relationships, the chancellor was within his discretion in finding this factor favored Michael. Lauren’s filing of a baseless complaint of abuse, for example, certainly weighs in Michael’s favor on this factor. Under the circumstances of this case, the chancellor did not err in determining a change in physical custody was in the best interests of the minor children.


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