Giannaris v. Giannaris, 2005-CT-00498-SCT.

Decision Date19 July 2007
Docket NumberNo. 2005-CT-00498-SCT.,2005-CT-00498-SCT.
PartiesElizabeth Joy (Selby) GIANNARIS v. Stephen Andrew GIANNARIS.
CourtMississippi Supreme Court

Wendy C. Hollingsworth, Dustin Norman Thomas, Ocean Springs, attorneys for appellant.

William E. Tisdale, attorney for appellee.

EN BANC.

RANDOLPH, Justice, for the Court.

¶ 1. On July 10, 1994, Stephen Andrew Giannaris ("Stephen") and Elizabeth Joy (Selby) Giannaris ("Elizabeth") were married in California. One child, S.G., was born of the union in 1998. On July 30, 2002, a "Final Judgment of Divorce" between Stephen and Elizabeth was filed in the Chancery Court of Harrison County. Incorporated into the final judgment was the "Child Custody, Support, and Visitation Settlement Agreement" ("agreement") executed by Stephen and Elizabeth. The agreement provided Elizabeth with "paramount physical control and custody of [S.G.,]" while granting Stephen liberal visitation. The following year, Stephen filed a "Complaint for Contempt, Modification and Other Relief" seeking primary physical custody of S.G. Following a hearing, the Chancery Court of Harrison County modified custody and granted Stephen primary physical custody. Specifically, the chancellor determined that the substantial visitation provided by the agreement, combined with the fact that Stephen, a weather forecaster for the United States Navy, had been transferred to San Diego, California, "constituted a substantial change in circumstances." Moreover, the chancellor found that Elizabeth's "refusal to communicate and cooperate with [Stephen] and [her] attitude toward [Stephen's present wife, Anita] constitutes an adverse circumstance." The chancellor then conducted an Albright1 analysis and found that the factors favored Stephen. The Court of Appeals affirmed the chancellor's ruling. See Giannaris v. Giannaris, ___ So.2d ___, 2006 WL 2599134, 2006 Miss.App. LEXIS 668 (Miss.Ct.App., Sept. 12, 2006).

¶ 2. This Court granted Elizabeth's petition for writ of certiorari, which raised the following issues: (1) the trial court erred in basing modification of child custody on the relocation of the non-custodial parent; (2) the trial court employed an erroneous legal standard for modification of child custody by allowing the "material change in circumstances" and the "adverse affect [sic]" to be based on unrelated matters; (3) the trial court erred in relying upon isolated events which were not likely to continue into the foreseeable future to support a modification of custody; and (4) the trial court and Court of Appeals failed to employ a Daubert2 analysis before considering the testimony of clinical social worker Pat Gunkel, and the Court of Appeals failed to address all of the requirements of Miss. R. Evid. 702. After due consideration, this Court finds that both the chancellor and the Court of Appeals erred. The chancellor conflated isolated events which resulted in the application of an erroneous legal standard, and abused his discretion in admitting the testimony of Gunkel. Accordingly, their judgments are reversed, and we render judgment, awarding primary physical custody of S.G. to Elizabeth, and remand the support and visitation issues to the chancery court for determination.

FACTS AND PROCEDURAL HISTORY

¶ 3. On July 10, 1994, Stephen and Elizabeth were married in California. One child, S.G., was born of the union in 1998. Stephen and Elizabeth were separated on September 24, 2001. The couple filed for divorce on May 6, 2002. They entered into a "Child Custody, Support, and Visitation Settlement Agreement." In pertinent part, the agreement provided for joint legal custody of S.G., with Elizabeth receiving "paramount physical control and custody of [S.G.]" and Stephen having liberal visitation.3 The agreement concluded by stating, "[t]his Agreement can, may and should be incorporated into a Final Decree of Divorce herein . . . and both parties request the Court to agree with same." On July 30, 2002, the "Final Judgment of Divorce" was filed in the Chancery Court of Harrison County. Incorporated into the final judgment was the agreement executed by Stephen and Elizabeth.

¶ 4. Three weeks after the divorce was finalized, Stephen married his present wife, Anita. Stephen and Anita had been involved in an extramarital affair prior to Stephen and Elizabeth's divorce, of which Elizabeth initially was unaware. Elizabeth ultimately learned of the affair. As a result of the affair and Stephen's subsequent marriage to Anita,4 animosity existed between Elizabeth and Anita.5 However, Stephen conceded that visitation was mostly without incident and in conformity with the provisions of the agreement. Furthermore, the record reveals that S.G. was in good physical health and had a normal appetite. Regarding other incidents, Elizabeth conceded that on one occasion she had refused to swap days with Stephen and instead kept S.G.6 and that she initially did not include Anita's name on the day-care pickup list.

¶ 5. On October 14, 2003, Stephen filed a "Complaint for Contempt, Modification and Other Relief" seeking primary physical custody of S.G. primarily on the basis of an alleged adverse effect upon her from the possibility of Elizabeth's home being foreclosed. The chancery court granted Stephen permission to respond to unanswered requests for admissions, and to amend his complaint. On March 9, 2004, Stephen filed an "Amended Complaint for Contempt, Modification and Other Relief," again seeking primary physical custody of S.G. The amended complaint alleged for the first time, "[t]hat Elizabeth has engaged in a course of conduct that has resulted in a substantial and material change in circumstances[,]" and then listed a series of factors which he alleged had an adverse effect on S.G.

¶ 6. At the August 17, 2004 hearing, the chancellor found that the substantial visitation provided by the agreement, combined with the fact that Stephen, a weather forecaster for the United States Navy, had been transferred to San Diego7 "constituted a substantial change in circumstances." Moreover, the chancellor found that Elizabeth's "refusal to communicate and cooperate with [Stephen] and [her] attitude toward [Stephen's present wife, Anita] constitutes an adverse circumstance[,]" which the chancellor used to initiate an Albright inquiry. After weighing the Albright factors, the chancellor concluded that "it would be in the best interest of [S.G.] . . . that custody be transferred to [Stephen]." On September 9, 2004, a judgment to that effect was entered by the chancery court. Elizabeth's subsequent "Motion to Set Aside, Reconsider and/or to Alter or Amend Judgment or for a New Trial" was denied by the chancery court and, thereafter, she timely filed notice of appeal.

¶ 7. The Court of Appeals affirmed the chancellor's ruling. See Giannaris, ___ So.2d at ___, 2006 Miss.App. LEXIS at 668. A majority of the Court of Appeals erred in rejecting Elizabeth's argument that "the change in circumstances and the adverse effect cannot be based on two entirely differen[t] things." Id. at ___, at *9. The Court of Appeals majority opined that:

[a]lthough the chancellor did not specifically state that Elizabeth's failure to cooperate and communicate with Stephen and her attitude toward Anita was a change in circumstances, the facts imply that this "adverse circumstance" constituted a change in circumstances that arose after the entry of the divorce. Pre-divorce, neither communication and cooperation regarding visitation, nor Stephen's marriage to Anita was an issue. Thus, Elizabeth's behavior was necessarily a change in circumstances that occurred after the original custody determination. Moreover, the chancellor determined that her behavior was adverse to the best interest of the child.

Id. at ___ - ___, at *9-10 (emphasis added). While conceding that Stephen's move was foreseeable at the time of the divorce, the Court of Appeals deduced that "the chancellor did not modify custody based on Stephen's move. In addition to Stephen's move, the chancellor considered Elizabeth's behavior since the divorce (i.e., her failure to cooperate and communicate with Stephen and her attitude toward Anita)." Id. at ___ - ___, at *10-11. In so concluding, the Court of Appeals ignored the chancellor's finding "that Stephen's move to San Diego constituted a `substantial change in circumstances.'" Id. at ___, at *8. After Elizabeth's motion for rehearing was denied by the Court of Appeals, she filed her petition for writ of certiorari with this Court. In granting Elizabeth's petition, this Court now considers (1) whether the chancellor erred in modifying custody and granting Stephen primary physical custody of S.G. and (2) whether the trial court employed a proper analysis under Miss. R. Evid. 702 as to witness Gunkel.

ANALYSIS
I. Whether the chancellor erred in modifying custody and granting Stephen primary physical custody of S.G.

¶ 8. When this Court reviews domestic relations matters, our scope of review is limited by the substantial evidence/manifest error rule. See R.K. v. J.K., 946 So.2d 764, 772 (Miss.2007) (citing Mizell v. Mizell, 708 So.2d 55, 59 (Miss. 1998)). Therefore, we will "not disturb the findings of a chancellor unless the chancellor was manifestly wrong, clearly erroneous or an erroneous legal standard was applied." Id.

¶ 9. "[T]he polestar consideration in child custody cases is the best interest and welfare of the child." Albright, 437 So.2d at 1005. This Court has previously noted that a change in custody is a "jolting, traumatic experience." Ballard v. Ballard, 434 So.2d 1357, 1360 (Miss.1983). As such, "children do not need to be bounced back and forth between their parents like a volleyball[.]" Tucker v. Tucker, 453 So.2d 1294, 1298 (Miss.1984). See also Cooley v. Cooley, 574 So.2d 694, 699 (Miss. 1991) (overruled on other grounds) ("The best interest of the child requires that the child have some degree of stability in his or her...

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