Thompson v. Hutchinson
Docket Number: | 2010-CA-01916-COA | |
Court of Appeals: |
Opinion Link Opinion Date: 03-27-2012 Opinion Author: Griffis, P.J. Holding: Affirmed |
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Additional Case Information: |
Topic: Modification of custody - Material change in circumstances - Section 93-5-24(9) - Perpetuating family violence - Findings of fact - M.R.C.P. 41(b) - M.R.C.P. 52(a) Judge(s) Concurring: Lee, C.J., Irving, P.J., Barnes, Ishee, Roberts, Carlton, Maxwell, Russell and Fair, JJ. Procedural History: Bench Trial Nature of the Case: CIVIL - CUSTODY |
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Trial Court: |
Date of Trial Judgment: 06-18-2010 Appealed from: Rankin County Chancery Court Judge: Dan Fairly Disposition: MODIFICATION OF CUSTODY DENIED Case Number: 43,773 |
Party Name: | Attorney Name: | Brief(s) Available: | ||
Appellant: | Jimmy Scott Thompson |
WILLIAM MATTHEW THOMPSON |
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Appellee: | Tammy Renee Evans Thompson Hutchinson | KEVIN W. BRADY |
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. |
Topic: | Modification of custody - Material change in circumstances - Section 93-5-24(9) - Perpetuating family violence - Findings of fact - M.R.C.P. 41(b) - M.R.C.P. 52(a) |
Summary of the Facts: | Jimmy Scott Thompson (“Scotty”) filed a petition for modification of child custody against Tammy Thompson Hutchinson. The chancellor denied the modification and dismissed the action under M.R.C.P. 41(b). Scotty appeals. |
Summary of Opinion Analysis: | Issue 1: Material change in circumstances Scotty argues the chancellor committed reversible error by finding there was no material change in circumstances when the chancellor failed to consider and apply section 93-5-24(9). The chancellor determined that Scotty’s testimony, as well as the testimony of his sister and his mother, conflicted with the couples’ son’s testimony at several different times. The chancellor stated that he had a difficult time determining who was telling the truth. Section 93-5-24(9)(a)(i) defines a history of perpetuating family violence as either a pattern of family violence against a member of the household or a single incident of family violence that results in serious bodily injury. Tammy and her husband argued in the front yard; however, no act of violence occurred. Her husband did admit to placing his hands near his stepson’s neck leaving a mark. DHS investigated the husband at the request of Scotty several times and found the allegations to be unfounded. Additionally, the son’s counselor reported “[t]he yelling and name-calling,” by his stepfather had gotten better. The alleged instances of abuse do not rise to the level the statute discusses that results in serious bodily injury. Thus, the chancellor was within his discretion. Issue 2: Findings of fact Scotty argues that the chancellor failed to make specific findings of fact and conclusions of law because he did not specifically mention the domestic violence and his son’s hair pulling condition. M.R.C.P. 41(b) provides that if the court renders judgment on the merits against the plaintiff, the court may make findings as provided in M.R.C.P. 52(a). The chancellor did not err in denying Scotty’s request to make specific findings of fact and conclusion of law. The chancellor’s bench opinion was sufficient to explain and support his findings in the present case. |
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