Sullivan v. Sullivan
| Docket Number: | 2010-CA-01847-COA Linked Case(s): 2010-CA-01847-COA ; 2010-CT-01847-SCT |
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| Court of Appeals: |
Opinion Link Opinion Date: 05-29-2012 Opinion Author: Irving, P.J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Modification of custody - Material change in circumstances - Recommendation of guardian ad litem - Albright factors - Admission of testimony Judge(s) Concurring: Lee, C.J., Griffis, P.J., Ishee, Roberts, Carlton, Maxwell, Russell and Fair, JJ. Concur in Part, Concur in Result 1: Barnes, J., Concurs in Part and in the Result Without Separate Written Opinion Procedural History: Bench Trial Nature of the Case: CIVIL - CUSTODY |
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| Trial Court: |
Date of Trial Judgment: 06-29-2010 Appealed from: Forrest County Chancery Court Judge: Johnny Lee Williams Disposition: PETITION FOR MODIFICATION OF CHILD CUSTODY DENIED Case Number: 04-737-GN-W |
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| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | Trina Sullivan |
W. TERRELL STUBBS |
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| Appellee: | Kenneth Sullivan | ROBERT R. MARSHALL |
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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 custody - Material change in circumstances - Recommendation of guardian ad litem - Albright factors - Admission of testimony |
| Summary of the Facts: | Trina Sullivan and Kenneth Sullivan were granted a divorce on the ground of irreconcilable differences. The Sullivans had one minor child at the time of the divorce. The chancery court granted Kenneth full physical custody of the couple’s daughter. The court granted Trina visitation every other weekend. Additionally, the court ordered Trina to pay $130 per month in child support. Initially, Trina refused to comply with the court’s custody order. In response, Kenneth filed a petition for writ of habeas corpus. The chancery court issued a writ ordering the return of the daughter to Kenneth. When Trina still refused to comply, the court ordered her to be incarcerated. Eventually, Trina delivered the daughter to Kenneth, and the court set aside its order of incarceration. In 2008, Trina filed a petition to modify custody, alleging that there had been a material change in circumstances based on Kenneth’s inability to provide a stable home environment for the couple’s daughter and his recent arrest for a felony. However, the felony arrest resulted from an affidavit filed by Trina alleging that Kenneth had conspired to kidnap their daughter in November 2005. Ultimately, the district attorney declined to prosecute the case. The court denied Trina’s petition to modify child custody, and Trina appeals. |
| Summary of Opinion Analysis: | Trina argues that the chancery court erred when it failed to find a change in circumstances that warranted a change in custody. In support of her argument, Trina points to Kenneth’s improper sexual conduct, his propensity to drink and drive, and his acquaintance with drug dealers. Where a child living in a custodial environment clearly adverse to the child’s best interest, somehow appears to remain unscarred by his or her surroundings, the chancellor is not precluded from removing the child for placement in a healthier environment. While Trina contends that Kenneth’s indiscretions warrant a change in custody, there is no evidence that the daughter has been adversely affected by his actions. There was ample testimony at the modification hearing that she is performing well at school, is involved in numerous extracurricular activities, and is a happy, well-adjusted child. While the chancery court was troubled by Kenneth’s drinking and driving and by what it categorized as “immoral behavior,” it ultimately concluded that Trina had failed to prove a material change in circumstances that warranted a change in custody. Considering the totality of the circumstances, Kenneth’s conduct simply has not created a custodial environment that is adverse to his daughter. Trina also argues that the chancery court erred by not adopting the GAL’s recommendation and by not stating its reasons for not adopting the GAL’s recommendation. A chancellor is in no way bound by a GAL’s recommendations. Here, the GAL initially determined that a material change in circumstances did not exist, and she recommended that custody remain with Kenneth. However, after hearing the testimony at the modification hearing, the GAL modified her recommendation and determined that a material change in circumstances did exist. While the GAL considered Kenneth’s actions immature and indicative of poor judgment, she admitted in her testimony that his conduct had not adversely affected the daughter. The only incident that the GAL did not know about at the time of her report involved Kenneth’s sexual encounter with a female at his parents’ house. This issue is without merit. Trina also argues that the court erred in its Albright analysis. However, because a material change in circumstances did not exist, the chancery court was not obligated to analyze the Albright factors. Trina also argues that the chancery court erred in admitting the testimony of a psychologist who evaluated the couple’s daughter, because he was not designated as an expert witness during discovery and he lacked the qualifications to testify as an expert. While the psychologist was not properly designated, exclusion of evidence for a discovery violation is an extreme measure. Furthermore, Trina’s attorney stated at the hearing that he knew about the witness and had contacted his office, but he had decided not to call him as a witness. Thus, the chancery court did not err in admitting his testimony. |
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