Denham v. Denham, 2020-CT-00675-SCT

CourtUnited States State Supreme Court of Mississippi
Writing for the CourtKING, PRESIDING JUSTICE
PartiesJASON CLINT DENHAM v. REBECCA PRUETT DENHAM
Docket Number2020-CT-00675-SCT
Decision Date01 December 2022

JASON CLINT DENHAM
v.

REBECCA PRUETT DENHAM

No. 2020-CT-00675-SCT

Supreme Court of Mississippi, En Banc.

December 1, 2022


DATE OF JUDGMENT: 06/18/2022

COURT FROM WHICH APPEALED: LAMAR COUNTY CHANCERY COURT TRIAL JUDGE: HON. DEBORAH J. GAMBRELL

TRIAL COURT ATTORNEYS: SHEILA HAVARD SMALLWOOD SHAWN M. LOWREY KRISTIN MICHELLE McGEE SARAH LINDSEY HAMMONS HELEN VIRGINIA KRAMER

ATTORNEYS FOR APPELLANT: JEFFREY BIRL RIMES SARAH LINDSEY HAMMONS

ATTORNEY FOR APPELLEE: JOHN D. SMALLWOOD

ON WRIT OF CERTIORARI

KING, PRESIDING JUSTICE

¶1. In this divorce and custody case, the chancellor excluded the testimony of the parties' minor children per se, without first interviewing the children and determining their competency and best interests. The chancellor then interviewed the children in chambers, but did not make a record of the interviews. The Court of Appeals affirmed the chancellor's

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decision on all issues, including child custody. On certiorari review, we find that the chancery court erred in the procedures used and findings made attendant to the issue of the children's testimony. We therefore reverse the chancellor's judgment regarding child custody, and we remand the case for proceedings consistent with this opinion.

FACTS AND PROCEDURAL HISTORY

¶2. The recitation of facts is taken largely from the Court of Appeals' opinion.

Becky and Jason were married on July 9, 2002. Three children were born to their marriage
Becky and Jason separated on July 31, 2017, and Becky filed her complaint for divorce on November 7, 2017. In her initial complaint for divorce, Becky alleged only irreconcilable differences. In December 2017, the chancellor entered a temporary order granting the parties joint legal custody and joint physical custody of the three minor children. The chancellor also entered an order appointing a guardian ad litem (GAL)
On February 6, 2018, Becky filed an amended complaint for divorce, adding allegations of the fault-based grounds of adultery and habitual cruel and inhuman treatment. Jason did not file an answer or assert any affirmative defenses to Becky's initial complaint or her amended complaint
On May 29, 2018, the chancellor entered an agreed order setting a trial date of November 14, 2018.
On October 15, 2018, approximately one month before trial, Jason's counsel filed a motion to withdraw as counsel. On October 26, 2018, the GAL also filed a motion to withdraw. In her motion to withdraw, the GAL asserted that she had "recently received communication from one of the litigants which caused the [GAL] to be unable to proceed in this case." The GAL explained that "[t]he communication was, at the worst, threatening, and at the best, improper." After a hearing on November 5, 2018, the chancellor entered an order that same day allowing the withdrawal of Jason's counsel and an order allowing the GAL to withdraw after the offering of the GAL's preliminary report at the beginning of the trial in this matter.

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A three-day trial was held in November 2018. On November 14, 2018, the first day of trial, the chancellor heard testimony from the GAL. Jason had not obtained new counsel at this time, and he moved for a continuance. The chancellor denied his motion, and Jason represented himself pro se. After the GAL's testimony, the chancellor then ordered that the trial reconvene on Tuesday, November 27, 2018. By the time the trial reconvened, Jason had retained new counsel.
On November 27 and 28, 2018, the chancellor heard testimony from Jason; Becky; Becky's sister, Lissa Ortego; the Denhams' neighbor, Brett Bean; Paula Henderson, the wife of Jason's co-worker; Bryan Page, Jason's former co-worker; and Jason's aunt, Cindy Belcher. Jason requested that the chancellor interview the children on-the-record. Becky objected to the children being interviewed and to the interview being on-the-record. The chancellor agreed to interview the children in camera, but the chancellor denied Jason's request for the interview to be on-the-record.

Denham v. Denham, No. 2020-CA-00675-COA, 2022 WL 290890, at *1-2 (Miss. Ct. App. Feb. 1, 2022).

¶3. In making the determination whether the children would testify, the chancellor, before meeting the children, stated that

I have to decide is it in the child's best interest to testify? The answer is no. Is the child competent? I would have to make that determination. As it relates to the middle child and the little, I would automatically say no. Is it really necessary to subject the child to that experience? No.
So I've got - - I've answered all of that already before I even decide to go in camera.

(Emphasis added.) The chancellor then reiterated this position multiple times, all prior to ever meeting the children. When Jason's attorney moved for the children's interviews to be on the record and cited caselaw in support of such a motion, the chancellor replied "[n]o." She then explained that "there's no way in the world that I'm going to have a record of

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children testifying in a divorce action that they will have access to in 15 to 20 years from now, it is not going to happen."

The chancellor ultimately interviewed the children off the record and out of the presence of the parties, with only the parties' counsel and a court staff attorney present.
On December 17, 2018, the chancellor entered her findings of fact, conclusions of law, opinion, and final judgment. In her order, the chancellor granted Becky a divorce on the ground of uncondoned adultery. The chancellor awarded the parties joint legal custody of the three minor children. The chancellor awarded Becky sole physical custody of the children and awarded Jason "visitation as may be agreed upon between the parties/parents." The chancellor "encourage[d] the parties to work together to schedule visitation that is beneficial to the children and agreeable to all involved." The chancellor provided, however, that if the parties were "unable to agree on reasonable visitation times and circumstances for the children with Jason, then Jason shall be entitled to the following visitation: Weekend custodial visitation commencing on Thursday at 6:00 p.m. and ending on Sunday at 6:00 p.m. on every other weekend." The chancellor also set forth a holiday visitation schedule, which included four weeks of summer visitation for Jason.
In making her custody determination, the chancellor considered and applied the factors as set forth in Albright.[1] The chancellor found that the factors were either neutral or favored Becky. The chancellor did not adopt the findings and recommendation of the GAL, explaining:
Because the [c]ourt allowed [the GAL] to withdraw and testify at the outset of trial (and thus the GAL was not privy to the rest of the testimony and evidence presented at trial and had no opportunity to weigh in on whether such would alter her preliminary recommendation), the [c]ourt shall not adopt the findings and recommendations of the [GAL] as presented in her Report (Exhibit 2) and per her testimony. The Albright analysis below is thus the [c]ourt's own.

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Denham, 2022 WL 290890, at *2 (alterations in original). The chancery court found that the moral fitness factor favored Becky, noting that

[a]lthough both parties admit to infidelity during the marriage, Becky's consisted of a single one-night stand several years ago, after which the parties reconciled, while Jason has been involved in numerous sexual trysts, including those that ultimately caused the demise of the marriage. The [c]ourt also heard testimony regarding Jason's use of pornography and online dating websites.

Regarding the oldest child's preference, the chancery court stated that "the oldest child of the parties did not indicate a preference to live with one parent or the other."

Jason filed a motion for a new trial or, in the alternative, to alter or amend the judgment and to stay the judgment, asserting the following: the chancellor erred in denying Jason's request to grant a continuance; the chancellor erred by only allowing Jason less than half of a day to present evidence and witnesses in support of his case; the chancellor erred and unfairly prejudiced Jason when she excluded Jason's evidence of Becky's marital misconduct relating directly to the . . . Albright factors; the chancellor erred by excluding the testimony of the minor children, specifically the parties' eldest child; the chancellor erred in her application of the Albright factors; the chancellor erred by not awarding the parties joint physical custody; the chancellor erred in her determination and division of the marital estate; the chancellor erred by summarily ordering Jason to pay health insurance and maintain life insurance without making on-the-record findings as to the cost; and the chancellor erred in her determination as to the child support award and alimony award. The parties both
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