Stennett v. Dawsey


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Docket Number: 2010-CA-01693-COA
Linked Case(s): 2010-CA-01693-COA ; 2010-CT-01693-SCT ; 2010-CT-01693-SCT
Court of Appeals: Opinion Link
Opinion Date: 05-08-2012
Opinion Author: Lee, C.J.
Holding: Affirmed
Additional Case Information: Topic: Modification of child custody - Best interest - Totality of circumstances - Substantial evidence
Judge(s) Concurring: Irving and Griffis, P.JJ., Barnes, Ishee, Roberts, Maxwell, Russell and Fair, JJ.
Dissenting Author : Carlton, J.
Procedural History: Bench Trial
Nature of the Case: CIVIL - CUSTODY
Trial Court: Date of Trial Judgment: 09-03-2010
Appealed from: Harrison County Chancery Court
Judge: Carter Bise
Disposition: DENIED FATHER’S MOTION FOR MODIFICATION OF CHILD CUSTODY
Case Number: 03-00358-4
  Party Name: Attorney Name:   Brief(s) Available:
Appellant: Jerry M. Stennett, Jr.




 RICHARD V. DYMOND CHAD PATRICK FAVRE



  
  • Appellant #1 Brief
    		•
    Appellee: Luann Roberson Dawsey JOY HARRISON GOUNDAS  
    Synopsis provided by:

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    Topic: Modification of child custody - Best interest - Totality of circumstances - Substantial evidence
    Summary of the Facts: In 2004, Luann Roberson Dawsey and Jerry M. Stennett Jr. entered into an agreed judgment of filiation, support, and visitation. In the agreed judgment, Stennett acknowledged he was the biological father of Dawsey’s two children. In February 2010, Stennett filed a motion to modify the agreed judgment of filiation claiming a material change in circumstances had adversely affected the two children. Stennett also filed an emergency motion for ex parte relief requesting temporary custody of the children. That same day, the chancellor granted the emergency order and awarded Stennett temporary custody of the children. Stennett had learned Dawsey was checking herself into a rehabilitation center for three months in order to seek preventative care. In June 2010, Dawsey filed a motion to set aside the emergency order. The chancellor denied this motion and set a hearing on Stennett’s motion to modify custody. After a trial on the merits, the chancellor denied Stennett’s motion, finding Stennett had failed to show a material change in circumstances. The chancellor also ordered Stennett to pay back child support in the amount of $4,127.23. Stennett appeals.
    Summary of Opinion Analysis: Stennett argues the chancellor failed to consider the totality of the circumstances in determining whether the children’s best interests would be served by a change in custody. In a child-modification case, the non-custodial parent is required to prove that a substantial change in circumstances has transpired since issuance of the custody decree; that this change adversely affects the children’s welfare; and that the children’s best interests mandate a change of custody. Only parental behavior that poses a clear danger to the children’s mental or emotional health can justify a custody change. Dawsey admittedly used methamphetamines on at least two occasions. Dawsey testified these experiences with illegal drugs scared her, and she voluntarily checked herself into a local rehabilitation center in early 2010 for preventative care. There was no testimony from Dawsey, Stennett, Dawsey’s parents, or Dawsey’s close friends that Dawsey was an addict or chronically used illegal drugs. Stennett admittedly had not been around Dawsey in two years and had no proof, other than his assertions, of Dawsey’s drug habits. Dawsey testified the occasions she tried illegal drugs only occurred when the children were exercising visitation with Stennett. Stennett was unable to show the children were harmed in any way. The testimony showed the children were well adjusted and performed well in school while under Dawsey’s care. Thus, substantial evidence supports the chancellor’s decision.


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