Bredemeier v. Jackson

• Decision Date: 27 February 1997
• Docket Number: No. 94-CA-00441-SCT,94-CA-00441-SCT
• Citation: 689 So.2d 770
• Parties: Sandra Maria Jackson BREDEMEIER v. Gary Dean JACKSON.
• Court: Mississippi Supreme Court

Page 770

689 So.2d 770

Sandra Maria Jackson BREDEMEIER v. Gary Dean JACKSON.

No. 94-CA-00441-SCT.

Supreme Court of Mississippi.

Feb. 27, 1997.

Walter W. Teel, Meadows Riley Koennen & Teel, Gulfport, for appellant.

Herbert J. Stelly, Gulfport, for appellee.

Before PRATHER, P.J., and PITTMAN and McRAE, JJ.

McRAE, Justice, for the Court:

This is an appeal from a judgment by the Chancery Court of Harrison County which awarded custody of minors Christopher Dean Jackson (Christopher) and Michelle Nicole Jackson (Michelle) to Gary Dean Jackson (Gary) and required Sandra Jackson Bredemeier (Sandra) to pay monthly child support of $300 to Gary. In his written opinion, the chancellor determined that the original physical custody arrangement was not satisfactory and that the best interest of the children would be met by placement with the father. We agree with the findings of the chancellor and hereby affirm his placement of the children with and award of child support to the father, Gary Jackson.

FACTS

Sandra and Gary married on May 26, 1979, and divorced on March 5, 1991. They are the parents of two children, Christopher and Michelle. Gary and Sandra divorced on the grounds of irreconcilable differences.

In the original divorce decree, the chancery court granted Sandra and Gary joint legal and physical custody of the children, and by agreement of the parents, the children lived in the mother's house for one month and then the father's house one month, switching at the conclusion of each month. Gary was required to maintain medical insurance on the children and to divide with Sandra all non-insured costs for the children. Additionally, if Gary did not have access to a group or work-related policy, the children could be added to Sandra's group-related policy with Gary making payments to Sandra for the cost of the policy. Both parties were required to confer before engaging the services of any medical care providers. Gary was also required to pay Sandra $300 per month for child support for the minor children.

Following the divorce, both parties remarried, and from March 1991 to September 1991, Gary maintained the majority of the physical custody of the children. Gary filed a Complaint for Modification on June 9, 1992, seeking to modify the amount of child support, to require that no child support be paid, to require Sandra to maintain the medical insurance on the children, and to order that all other terms of the previous judgment remain in full force and effect. Sandra answered and counterclaimed, requesting the court to end the swapping schedule of the children, since it was highly disruptive, and to award her primary physical custody of the children. She also requested a judgment for all past due child support and support-related sums owing up to the hearing of the case.

In April 1993, the chancellor appointed Dr. Virginia DeRoma, a psychologist, to evaluate the children, and he reduced Gary's support payments to every other month, to account The chancellor determined in January 1994 that since the July 1993 order was temporary, it should allow a trial on the complaint for modification. In subsequent motions, Gary sought primary custody of both children, while Sandra sought custody of Michelle, along with an order of contempt against Gary for failure to pay medical bills and child support. Upon hearing the evidence presented, the chancellor granted joint legal custody to Sandra and Gary, the same legal status as the original divorce decree. However, he also granted Gary the primary physical custody of the children, subject to Sandra's rights of visitation. The chancellor also ordered Sandra to pay Gary $400 per month in child support, with certain limitations. The order required Gary to pay for major medical and hospital insurance for the children. Both parents were to split all health care expenses not covered by the insurance. The court also delineated visitation privileges for Sandra on weekends, holidays, and summer vacations. The chancellor denied Sandra's claims for contempt against Gary and her request for attorney's fees.

for those months when the children did not reside with him. Subsequently, the court, in July 1993, entered a temporary order which granted physical custody of Christopher to Gary and physical custody of Michelle to Sandra. Each party was required to pay the support expense for the child of which he or she had physical custody.

Sandra immediately filed a motion to reconsider on April 19, 1994, seeking to overturn the chancellor's earlier order. In an April 22, 1994 order, entered after the motion to reconsider, the chancellor affirmed his earlier order, except that he decreased Sandra's monthly child support obligation to $300. It is from this decision she appeals to this Court.

DISCUSSION

I. The court erred in not declaring a mistrial, not recusing itself, and allowing improper, prejudicial and irrelevant evidence into the record.

A. Improper, prejudicial and irrelevant evidence

The evidentiary problem in this case arises with the chancellor's decision to allow in evidence a letter from the Bredemeiers (Sandra and Greg) to the Mississippi Board of Psychological Examiners. In the letter, the Bredemeiers criticized the practices of Dr. William Gasparrini, in relation to his evaluating the children for the court in the child custody case. Specifically, they suggested that Gasparrini purposely discredited Sandra in his evaluations and possibly acted negligently.

Sandra argues that Gary's counsel purposely introduced the letter to bias and prejudice the court, since the court frequently used Dr. Gasparrini as an expert. She says that the letter, which complains about Gasparrini, has nothing to do with whether or not she should be able to keep her daughter. On the contrary, this letter is relevant. It was written by the appellant, and it was in reference to the ongoing custody case. Relevant evidence is evidence "having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." MidSouth Rail Corp. v. O'Connor, 672 So.2d 1176, 1182 (Miss.1996); Mississippi Rules of Evidence, Rule 401.

Evidence, though relevant, may be excluded "if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading of the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." M.R.E., Rule 403. The determination of relevancy of evidence is left to the sound discretion of the trial judge, whose determination will not be reversed in the absence of clear abuse. Watts v. State, 635 So.2d 1364, 1367 (Miss.1994); Williams v. State, 543 So.2d 665, 667 (Miss.1989). For a case to be reversed on the admission or exclusion of evidence, the ruling must result in prejudice and harm or adversely affect the party's substantial right. Terrain Enter., Inc. v. Mockbee, 654 So.2d 1122, 1131 (Miss.1995).

At trial, Sandra's counsel asked her why the letter was sent, to which she responded The court also expressly made clear that this letter was relevant to the personalities of the people trying to gain custody of the children, and that it would not base its decision on the letter alone. Further, the court found that Dr. Gasparrini was not subject to outside influence, thus indicating that those who wrote the letter may have been obstructive.

that Dr. Gasparrini was not the original court-ordered psychologist, and that he may have had a problem with her cutting his pay in a previous job. However, as the letter reflects, the Bredemeiers were obviously dissatisfied with Dr. Gasparrini's conclusions, and they alleged in the letter that his conduct may have been negligent. Dr. Gasparrini's testimony bears directly on this case, for the court reviewed his and Dr. Virginia DeRoma's recommendations. The charges of negligence gave the court pause, and forced the court to examine Dr. Gasparrini's report and testimony for undue influence, which the chancellor ordinarily would not have had to do.

The chancellor's statements about a possible "obstruction of justice" was not prejudicial to the appellants. In fact, as the chancellor noted, the source of prejudice was the letter from the Bredemeiers to the Board of Psychological Examiners. However, when balanced against the letter's probative value, that prejudice was outweighed. Thus, the letter was correctly admitted, and the chancellor did not abuse his discretion.

B. Recusal

Sandra also urges that the chancellor erred in not recusing himself. Canon 3(C)(1) of the Code of Judicial Conduct requires disqualification of a judge when his or her "impartiality might reasonably be questioned, including but not limited to instances where: (a) he [or she] has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding." Code of Judicial Conduct, Canon 3(C)(1). In other words, would a reasonable person, knowing all the circumstances, harbor doubts about the judge's impartiality? Frierson v. State, 606 So.2d 604, 606 (Miss.1992); Rutland v. Pridgen, 493 So.2d 952, 954 (Miss.1986). This Court presumes that a judge, sworn to administer impartial justice, is qualified and unbiased. To overcome the presumption, the evidence must produce a "reasonable doubt" about the validity of the presumption. Turner v. State, 573 So.2d 657, 678 (Miss.1990). This Court reviews a judge's refusal to recuse himself using the manifest error standard. Davis v. Neshoba County Gen. Hosp., 611 So.2d 904, 905 (Miss.1992).

Sandra correctly notes that the question deals with the reasonable person standard. However, the judge learned about the letter through examination by counsel. Most appropriate is Sandra's notation of the discussion regarding the judge's friendship with Dr. Gasparrini. The chancellor stated at the hearing...