Jernigan v. Jernigan, 2000-CA-01121-COA.

• Citation: 830 So.2d 651
• Decision Date: 05 March 2002
• Docket Number: No. 2000-CA-01121-COA.,2000-CA-01121-COA.
• Parties: Kelly R. Faris JERNIGAN, Appellant, v. Jay L. JERNIGAN, Appellee.
• Court: Court of Appeals of Mississippi

830 So.2d 651

Kelly R. Faris JERNIGAN, Appellant, v. Jay L. JERNIGAN, Appellee.

No. 2000-CA-01121-COA.

Court of Appeals of Mississippi.

March 5, 2002.

Rehearing Denied June 4, 2002.

Certiorari Denied November 14, 2002.

H.D. Granberry III, Jackson, S. Christopher Farris, Hattiesburg, attorney for appellant.

Anthony Sakalarios, Hattiesburg, attorney for appellee. Before SOUTHWICK, P.J., LEE, and CHANDLER, JJ.

LEE, J., for the court.

¶ 1. This case arises from a chancellor's decision to modify child custody.¹ The parties herein, Jay Jernigan and Kelly Jernigan Isom (she remarried in 1999), were married in March 1993 and their daughter, Sophie, was born in December of that same year. Jay and Kelly separated in April 1994 and were finally granted a divorce in January 1995. Primary custody of their baby daughter, Sophie, was awarded to Kelly. In September 1995, Jay filed a motion seeking modification of the visitation schedule and seeking the court's enforcement of certain provisions in the previous agreement with regard to Kelly's allowing the child to talk on the telephone with her father and concerning Kelly's continued failure to advise Jay of the child's health and well-being. The chancellor granted the requests in Jay's petition for modification. In November 1998, Jay again filed a petition for modification, this time seeking a change in Sophie's custody from Kelly to himself. Attorney Ray Price was appointed as guardian ad litem on Sophie's behalf, and professional counselor Paul Davey was called upon to evaluate the circumstances and to make a recommendation concerning the child's best interests. In May 1999, the chancellor temporarily reversed primary custody of Sophie until trial, which occurred in January 2000. In May 2000, the chancellor entered an order permanently reversing primary custody of Sophie from Kelly to Jay. Kelly now appeals the final order; we find no error and affirm.

DISCUSSION OF THE ISSUE

I. DID THE CHANCELLOR ERR IN MODIFYING CHILD CUSTODY?

¶ 2. The only issue raised on appeal concerns the chancellor's decision to modify custody of Sophie Jernigan from her mother, Kelly, to her father, Jay. "The standard of review in child custody cases is quite limited. A chancellor must be manifestly wrong, clearly erroneous, or applying an erroneous legal standard in order for this Court to reverse. This Court will affirm decisions of the chancellor, whenever based on credible evidence." Lipsey v. Lipsey, 755 So.2d 564(¶ 3) (Miss.Ct.App. 2000).

¶ 3. The circumstances of this case were thoroughly explained at the trial through testimonies and evidence presented. Without restating all the details of this couple's history since their divorce, we simply look to the circumstances under which the chancellor modified custody from Kelly to Jay. In his order dated May 23, 2000, the chancellor stated that the following findings cumulatively constituted a material change: Kelly had made allegations in at least three jurisdictions that Sophie had been sexually abused by her father, though no testimony or medical evidence was presented to substantiate such accusations; Kelly moved continuously after the divorce, living in at least five different homes during the seven years after the divorce; Kelly misrepresented her marital status to the court, telling that she was married at a time when she actually was not; and Kelly also failed to provide complete reports to her expert, Dr. Criss Lott. Dr. Lott testified that had he been privy to all the information and not just the information Kelly provided, he likely would have changed his opinion. Finding that the totality of these acts on Kelly's part amounted to a material change, the chancellor looked to the expert opinions and to the guardian ad litem's report in reaching his conclusion that an adverse effect had resulted to the child. He then conducted a thorough analysis and application of the factors described in Albright v. Albright, 437 So.2d 1003 (Miss. 1983), and found that custody should be transferred to Jay.

¶ 4. Kelly cites Touchstone v. Touchstone, 682 So.2d 374 (Miss.1996), as a factually similar case to the present situation. In Touchstone, the parents shared custody, and their visitation exchanges included "vicious, profanity-laden accusations and insults between the parties." Touchstone, 682 So.2d at 377. Additionally, the mother was shown to have coerced the child into telling social workers that his father had sexually abused him, though the claims were not substantiated with medical evidence or testimony. The mother also moved out of state with the child and failed to abide by the visitation guidelines set by the...