Giannaris v. Giannaris

• Decision Date: 12 September 2006
• Docket Number: No. 2005-CA-00498-COA.,2005-CA-00498-COA.
• Citation: 962 So.2d 574
• Parties: Elizabeth Joy (Selby) GIANNARIS, Appellant v. Stephen Andrew GIANNARIS, Appellee.
• Court: Mississippi Court of Appeals

962 So.2d 574

Elizabeth Joy (Selby) GIANNARIS, Appellant v. Stephen Andrew GIANNARIS, Appellee.

No. 2005-CA-00498-COA.

Court of Appeals of Mississippi.

September 12, 2006.

Rehearing Denied January 23, 2007.

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

William E. Tisdale, attorney for appellee.

Before LEE, P.J., SOUTHWICK and ISHEE, JJ.

ISHEE, J., for the Court.

¶ 1. On October 14, 2003, seeking primary physical custody of the parties' minor child, Stephen Giannaris filed a complaint for contempt, modification and other relief in the Harrison County Chancery Court. After a trial, the chancery court transferred primary physical custody of the child to Stephen and granted Elizabeth Giannaris specified visitation. Aggrieved by the judgment, Elizabeth appeals. Finding no error, we affirm.

FACTS

¶ 2. Stephen and Elizabeth were granted a divorce on the grounds of irreconcilable differences on July 30, 2002. At the time of the divorce, the parties' only child, a daughter named Sierra, was approximately three and a half years old. The child custody, child support and property settlement agreement, which was incorporated into the judgment of divorce, granted joint legal custody to both parents and primary physical custody to Elizabeth. Stephen was awarded liberal visitation, including the first and third weekends of the month, two evenings during the week, three weeks in the summer, Father's Day, and alternating Christmas, Thanksgiving, and spring break holidays.

¶ 3. On October 14, 2003, Stephen filed a complaint for contempt, modification and other relief. On December 23, 2003, Elizabeth propounded combined discovery, including interrogatories, requests for production, and requests for admission. On March 1, 2004, the chancery court heard motions in the case and granted Stephen's motion to amend and further allowed him to file an out-of-time response to the combined discovery, including the requests for admission. Stephen filed an amended complaint for contempt, modification and other relief on March 9, 2004. The amended complaint provided a partial list of specific circumstances that were having an adverse effect on the minor child.

¶ 4. A trial was held on August 17, 2004. Elizabeth was called as an adverse witness. She testified that, although she had never denied Stephen visitation, she prevented Stephen's new wife, Anita, from picking up Sierra from day care by not including Anita's name on the "checkout list."¹ Elizabeth further testified that she told Sierra that she planned to change her name by adding "Selby" (Elizabeth's maiden name) and hyphenating it with Giannaris. Elizabeth further testified that she did not learn that Sierra was seeing a therapist until six months after the therapy began, and that she refused to sign a therapy consent form because therapy "would be more detrimental to [Sierra's] health."² At the close of the adverse witness examination, Elizabeth's attorney chose to reserve.

¶ 5. During direct examination, Stephen stated that he was a meteorologist for the Navy and that he had recently been transferred to San Diego, California for a three-year duty assignment. He testified that visitation proceeded according to the provisions of the divorce judgment "on most days"; however, he also testified that Elizabeth denied his Tuesday and Thursday night visit for a week in the summer of 2004. Stephen also testified that, during his Thanksgiving 2002 visitation, Elizabeth went to his house, demanded to have Sierra, and in the presence of the child, called Anita a "dirty wh___." Consequently, Anita called the police. Furthermore, Stephen testified that Elizabeth did not allow Sierra to speak of her brother, Mason (from Stephen's marriage with Anita). During her adverse examination, Elizabeth denied that she did not allow Sierra to speak of Mason or Anita.

¶ 6. At the close of Stephen's case, Elizabeth requested a directed verdict concerning custody, which the court denied. Elizabeth then rested her case without calling any witnesses. In a ruling from the bench, the court found that Stephen's move to San Diego constituted a "substantial change in circumstances" due to the substantial amount of time he spends with Sierra, pursuant to the child custody, support, and visitation agreement. The court further found that Elizabeth's refusal to communicate and cooperate with Stephen, as well as her attitude toward Anita, constituted an "adverse circumstance" that was "adverse to [Sierra's] best interest." Next, the court conducted an Albright analysis and determined that the best interest of the child warranted a transfer in custody from Elizabeth to Stephen, with Elizabeth having specified visitation. Aggrieved by the judgment, Elizabeth appeals. She asserts the following issues for this Court's review:

I. Whether the trial court applied an erroneous legal standard in modifying custody.

II. Whether the chancellor erred and/or abused his discretion by finding that there had been a material change in circumstances, warranting a modification of the original divorce and custody decree, because Stephen relocated his residence.

III. Whether the chancellor erred and/or abused his discretion by proceeding to an "Albright analysis" when there had been no credible evidence of a material change in circumstances that adversely affected the minor child and further erred and/or abused his discretion in the application of the Albright factors to the facts of this case.

IV. Whether the trial court erred in accepting licensed clinical worker, Pat Gunkel, as an expert witness.

V. Whether the trial court erred in allowing hearsay testimony to come into evidence through the minor child's father and the "expert," Pat Gunkel.

VI. Whether Stephen presented sufficient credible evidence to support his allegation that there had been a substantial change of circumstances in the custodial home that was expected to continue and to adversely affect the best interest of the minor child, so as to change the terms and conditions of the custody agreement that had previously been established by the trial court.

VII. Whether the trial court erred in failing to deem the requests for admission, propounded by Elizabeth to Stephen, admitted.

STANDARD OF REVIEW

¶ 7. Our review of domestic relations matters is limited. Carrow v. Carrow, 741 So.2d 200, 202(¶ 9) (Miss.1999). The chancellor's findings of fact will not be disturbed on appeal if they are supported by substantial credible evidence. Pacheco v. Pacheco, 770 So.2d 1007, 1009(¶ 8) (Miss. Ct.App.2000) (citing Dunaway v. Busbin, 498 So.2d 1218, 1221 (Miss.1986)). We will not reverse the decision of a chancery court unless the chancellor abused his or her discretion, was manifestly in error, or applied an erroneous legal standard. Carrow, 741 So.2d at 202(¶ 9) (citing Turpin v. Turpin, 699 So.2d 560, 564(¶ 15) (Miss. 1997)).

ISSUES AND ANALYSIS

I. Whether the trial court applied an erroneous legal standard in modifying custody.

II. Whether the chancellor erred and/or abused his discretion by finding that there had been a material change in circumstances, warranting a modification of the original divorce and custody decree, because Stephen relocated his residence.

¶ 8. In Mississippi, the traditional test for child custody modification is well established. Ferguson v. Ferguson, 782 So.2d 181, 183(¶ 5) (Miss.Ct.App.2001). In order to modify a child custody decree, the party seeking modification must first show that, since entry of the decree sought to be modified, there has been a material change in circumstances which adversely affect the welfare of the child. Creel v. Cornacchione, 831 So.2d 1179, 1183(¶ 15) (Miss. Ct.App.2002) (citing Smith v. Jones, 654 So.2d 480, 486 (Miss.1995)). Second, the party must show that the best interest of the child requires a custody modification. Id. Not every change in circumstances is so adverse that it warrants a custody modification; the chancellor must consider the totality of the circumstances. Ash v. Ash, 622 So.2d 1264, 1266 (Miss.1993). "In all custody cases, the polestar consideration is the best interest of the child." Id. (quoting Sellers v. Sellers, 638 So.2d 481, 485 (Miss.1994)).

¶ 9. In the case at bar, the chancellor found that Stephen's move to San Diego constituted a "substantial change in circumstances." He also found that Elizabeth's refusal to communicate and cooperate with Stephen, and her attitude toward Anita, constituted an "adverse circumstance" that was "adverse to [Sierra's] best interest." After determining that a circumstance had occurred which adversely affected the welfare of the child, the chancellor employed the factors from Albright v. Albright, 437 So.2d 1003, 1005 (Miss. 1983) to determine whether the best interests of the child would be served by a change in custody.

¶ 10. Elizabeth asserts that the chancellor employed an incorrect legal standard because he found neither that Stephen's move to San Diego adversely affected Sierra, nor that her attitude toward Anita constituted a material change. She argues that the change in circumstances and the adverse effect cannot be based on two entirely difference things. Thus, Elizabeth argues that the chancellor committed reversible error because he failed to find that the change in circumstances adversely affected the child's welfare. We disagree.

¶ 11. Although 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...