Gainey v. Edington

• Decision Date: 24 November 2009
• Docket Number: No. 2008-CA-00237-COA.,2008-CA-00237-COA.
• Citation: 24 So.3d 333
• Parties: Elizabeth GAINEY, Appellant v. Donnie EDINGTON, Appellee.
• Court: Mississippi Court of Appeals

24 So.3d 333

Elizabeth GAINEY, Appellant v. Donnie EDINGTON, Appellee.

No. 2008-CA-00237-COA.

Court of Appeals of Mississippi.

November 24, 2009.

Ben Logan, Tupelo, attorney for appellant.

J. Mark Shelton, attorney for appellee.

Before KING, C.J., IRVING and CARLTON, JJ.

CARLTON, J., for the Court.

¶ 1. Elizabeth Gainey appeals the judgment of the Pontotoc County Chancery Court, which dismissed her action to modify the child custody arrangement between Elizabeth and her ex-husband, Donnie Edington. Finding that the chancellor failed to consider the totality of the circumstances in determining whether a material change occurred for the purposes of modifying child custody, we reverse and remand for a new trial with directions for the chancellor to reconsider the issue of modification of child custody. Powell v. Powell, 976 So.2d 358, 361(¶ 11) (Miss.Ct. App.2008); see also Riley v. Doerner, 677 So.2d 740, 744 (Miss.1996).

FACTS

¶ 2. Elizabeth and Donnie divorced in April 2001, with Donnie receiving full custody of the couple's two girls, Tara, age five, and Mia, age four. The divorce decree did not address Elizabeth's visitation rights. Over the next three years, while in Donnie's custody, the girls suffered significant health problems resulting from an apparent overall continuing neglect of their health and welfare. In these three years subsequent to the divorce, Elizabeth made few visits to see her children. She attributed her lack of significant visitation to her ex-husband's refusal to allow her visitation in the face of her numerous requests and financial limitations. Meanwhile, during this time period, Donnie brought home two new stepmothers for the girls, enjoyed indulging his interests, while neglecting the health problems and welfare of the girls, resulting in significant health consequences.

¶ 3. In 2004, Donnie married Christie, with whom he amassed a collection of sex toys. Donnie and Christie also engaged in at least one evening of spouse-swapping with another married couple in their own home, while Tara and Mia stayed with their grandparents down the road. Christie gave birth in May 2004 to a child that Donnie and Christie believed to be theirs, but which ultimately proved to be the child of another man. Donnie then had to explain to Tara and Mia that the child that they thought was their sibling was not. Then, Donnie and Christie separated in late 2004 and divorced in early 2005.

¶ 4. Donnie next married Suzanne in the summer of 2005. Suzanne worked as a sex toy consultant who hosted "Passion Parties" in her own home and the homes of others. For some time, she kept her inventory of sex devices at the family home in boxes. Donnie and Suzanne maintained MySpace and other internet accounts on which they posted pictures, videos, and comments. Some of the material on these pages include a picture of Suzanne in a French maid costume, a movie trailer featuring a naked woman sold into slavery and kept in a cage, a picture of Charles Manson, and a video of Ronald McDonald being shot in the face.

¶ 5. During Donnie's marriage to Suzanne, Tara and Mia have experienced significant health problems, reflecting an overall neglect for their health and welfare. Mia has a gait derangement for which she has been to a hospital, but the condition remains uncorrected. Instead of receiving physical therapy by a licensed therapist or other licensed health professional, Mia and Tara participate in a karate class taught by a relative as a sort of physical therapy for Mia, according to Donnie. The dental hygiene of both girls is so poor that they cannot receive orthodontic treatment; the state of degradation of their dental hygiene reflects the results of long-term neglect. Both girls suffered staph infections subsequent to such infection being contracted by Suzanne. Mia has also had an ear infection that caused her to fail a hearing examination at school and eventually necessitated tubes.

¶ 6. Donnie has also allowed Frank Florez, now convicted of possession of a controlled substance with intent to distribute and possession of cocaine with intent to distribute, to supervise Mia and Tara.

¶ 7. Elizabeth filed her Petition for the Modification of Custody, Temporary Establishment of Reasonable Visitation, and in the Alternative, Permanent Establishment of Liberal Visitation on September 1, 2004. The chancellor entered a temporary agreed order November 8, 2004. Elizabeth filed a second petition for contempt and modification on July 8, 2005. The chancellor appointed Honorable Sidra P. Winter as guardian ad litem on September 6, 2006.

¶ 8. After a hearing held on June 20, 2007, and September 4-5, 2007, the chancery court granted Donnie's motion to dismiss on the basis of no showing of a material change in circumstances adverse to the children's best interests. The court entered an opinion and judgment to that effect December 10, 2007. On appeal, Elizabeth argues that the chancellor erred in (1) finding no material change in the circumstances adverse to the children's best interests, (2) excluding introduction of Donnie's MySpace account into evidence, and (3) not requiring a report from the guardian ad litem.

DISCUSSION

I. Material Change in Circumstances

¶ 9. This court has a limited scope of review in challenges to a chancellor's decision to deny a custody modification. Creel v. Cornacchione, 831 So.2d 1179, 1183(¶ 14) (Miss.Ct.App.2002). "We can reverse only when a chancellor's decision is either manifestly wrong or clearly erroneous, or when the chancellor has applied an erroneous legal standard." Id.

¶ 10. In order for a chancellor to modify a child custody decree, the noncustodial parent must prove the following: "(1) that a material change of circumstances has occurred in the custodial home since the most recent custody decree, (2) that the change adversely affects the child, and (3) that modification is in the best interest of the child." Powell, 976 So.2d at 361(¶ 11) (citing Giannaris v. Giannaris, 960 So.2d 462, 467-68(¶ 10) (Miss.2007)). This Court has held that "[w]hile numerous factors may go into the initial consideration of a custody award, see, e.g., Albright v. Albright, 437 So.2d 1003, 1005 (Miss.1983), only parental behavior that poses a clear danger to the child's mental or emotional health can justify a custody change." Lambert v. Lambert, 872 So.2d 679, 684(¶ 22) (Miss.Ct.App.2003) (citing Morrow v. Morrow, 591 So.2d 829, 833 (Miss.1991)).

¶ 11. Elizabeth argues that the chancellor failed to view the totality of circumstances in determining whether there had been a material change in circumstances. A change in circumstances "is [a change] in the overall living conditions in which the child is found[,]" and "[t]he `totality of the circumstances' must be considered." Tucker v. Tucker, 453 So.2d 1294, 1297 (Miss.1984) (citing Kavanaugh v. Carraway, 435 So.2d 697, 700 (Miss.1983)).

¶ 12. Elizabeth produced proof reflecting that Donnie displayed continuing neglect for the welfare and health of the two girls, Tara and Mia, in support of her contention that a material change in circumstances had occurred in Donnie's home that is adverse to the children's best interests. Elizabeth also provided evidence that she was denied any meaningful visitation between the time of the entry of her divorce decree in April 2001 when she was finally able to hire counsel to pursue her legal remedies in August 2004. She also claims that Donnie continually thwarted her visitation in the face of an order granting summer and holiday visitation. Elizabeth argues that at least one incident of "spousal swapping" occurred in Donnie's home between mid-2003 and September 2004, involving Donnie and his second wife Christie. Elizabeth further contends that such parental behavior affected the children's welfare and home stability.

¶ 13. As further evidence of home instability, Elizabeth points to the pregnancy and birth of a child by Christie that was not Donnie's and the cause of Donnie and Christie's subsequent separation and divorce. Elizabeth also asserts Donnie's poor judgment as a parent is reflected by his admission that Christie was not a good person to have around the children, and it is also reflected by Christie's maintenance of a supply of sexual aids and toys in the home. Elizabeth notes that Donnie married his third wife, Suzanne, within the same year of the divorce from Christie. Elizabeth points out the negative moral influence of Suzanne's employment as a sex toy consultant who hosts "Passion Parties" in the family home, as well as Suzanne's extensive time spent on the Internet while at home and her suggestive pictures taken by Donnie that are posted on various web sites.

¶ 14. In regard to the children's education, health, and home stability, Elizabeth points to Mia's diminishing grades and academic progress, and Mia's gait problem that continues to be inadequately treated. She also asserts that Mia suffers from recurrent and ongoing ear problems that were only treated when brought to light by Elizabeth. She further argues that Tara's and Mia's staph infections were contracted subsequent to Suzanne's staph infection, and she cites the appalling condition of both girls' teeth. Regarding Donnie's parental judgment, Elizabeth asserts that he allowed supervision of the girls by a neighbor ultimately imprisoned for selling drugs, and Donnie and Suzanne maintained publicly-accessible MySpace accounts which contained the following: photos of Charles Manson, a short video of Ronald McDonald being shot in the face, a picture of Suzanne in a French maid costume, and a movie trailer featuring a naked woman sold into slavery and kept in a cage.

¶ 15. Based upon the foregoing evidence and arguments, Elizabeth contends that the chancellor failed to evaluate the prospective or reasonably foreseeable adverse effect on the children as a result of Donnie's continuing lack of concern for their welfare. This Court...