Mcdonald v. Mcdonald

Decision Date17 June 2010
Docket NumberNo. 2007-CA-00886-SCT,2008-CA-01484-SCT.,2008-CA-00240-SCT,2007-CA-00886-SCT
Citation39 So.3d 868
PartiesJennifer McDONALDv.Michael Steven McDONALD.Jennifer McDonaldv.Michael Steven McDonald.Jennifer McDonaldv.Michael Steven McDonald.
CourtMississippi Supreme Court


James W. Craig, Dale Danks, Jr., Jackson, Kimberly Pine Turner, attorneys for appellant.

Marty Craig Robertson, attorneys for appellee.


RANDOLPH, Justice, for the Court:

¶ 1. These three consolidated cases involve custody of children born to Michael Steven McDonald (“Steve”) and Jennifer Lee Mallory McDonald (“Jennifer”), and related issues regarding child support, visitation, child-abuse allegations, jurisdiction, and the role of a guardian ad litem (“GAL”).


¶ 2. Two sons 1 were born of the marriage. Douglas was born more than three months premature on March 29, 2000. Blake was born on March 16, 2001. In September 2002, Steve was convicted of possession of cocaine with intent to sell for a crime committed in 1998. He was sentenced to thirty years, all suspended; five years' probation; and a fine of $3,000. The couple separated in May 2003. An irreconcilable-differences divorce was granted in October 2003 in the Chancery Court of Rankin County. An agreed settlement gave Jennifer custody of the boys, and Steve's visitation also was agreed upon. Child support was set at $520 monthly, plus one-half of the boys' (1) health insurance; (2) out-of-pocket medical expenses; and (3) day-care costs. Also, Steve agreed to pay marital debt for four specified accounts.


¶ 3. In the first year after the divorce, Steve did not pay the full amount of child support consistently, and did not comply fully with other requirements of the agreement. In June 2004, Jennifer filed contempt proceedings against Steve. Subsequently, Steve moved to reduce the child-support amount and, on the advice of his then-attorney, began paying $300 per month. He paid that amount consistently for a year. In October 2005, he began paying $520 per month. From that date forward, with the exception of two months (which was made up in subsequent payments), Steve timely paid the $520 per month. However, he did not pay arrearage, which Jennifer claimed exceeded $5,000 in child support and $10,000 overall.

¶ 4. In March 2006, while these matters were pending, Jennifer moved to modify visitation, alleging physical and sexual abuse by Steve. Jennifer claimed that Douglas told her that Steve had “dragg[ed] him by the hair to the bathroom and bit[ ] him on the penis.” Douglas's pediatrician, Dr. Julia Sherwood, found no physical evidence of sexual abuse and regarded the claim as a “fantasy story.” Personnel at the Child Advocacy Center (“CAC”) did not believe the allegation. The court appointed Dr. Darryl Wheat,2 who opined that the story originated from an incident involving Douglas's brother, who had been bitten through his pants by another child at their day-care center. Jennifer's second allegation arose from an incident in which Blake claimed that a red mark on his neck had come from his father choking him with a bed sheet. Steve offered that he was trying to get Blake to go to bed and that he kept getting back up. After at least four attempts, Steve tucked the bed sheet firmly around Blake, but when the child complained, Steve loosened the sheet. Dr. Sherwood described the red mark as “a very light abrasion.” CAC personnel believed Blake's story was credible, but opined that the event was an isolated incident of inappropriate discipline. A social worker for the Rankin County Department of Human Services (Rankin County DHS) accepted Steve's explanation. Nonetheless, Jennifer's modification motion was granted, and Steve's visitation was restricted. Later, supervised visitation was allowed, and by October 2006, full visitation had been restored.

¶ 5. In August 2006, Steve moved to modify custody, alleging that a material change of circumstances had occurred that was detrimental to the boys, and that he should be awarded custody. Jennifer renewed her contempt motion. Hearings were held in March, April, and May of 2007.

¶ 6. The chancellor heard the contempt motion first, and found Steve in contempt, describing his prior conduct as “willful and contumacious, ... reckless ... [and] callous.” The chancellor attributed his difficulty in determining the amount of the arrearage to Steve. He found Jennifer's testimony more credible and accepted her calculations. The chancellor ordered Steve to pay the judgment within forty-five days of the order. The chancellor then declared that the judgment had cleansed the contempt, and proceeded with the modification motions.

¶ 7. Steve averred that the boys had behavioral, developmental, educational, medical, and psychological problems that Jennifer was not adequately addressing, and that she was overwhelmed, overindulgent, and in denial. At the hearing, it was established that the boys had been dismissed from three separate day-care centers. Douglas was repeating kindergarten, and Blake was in danger of failing kindergarten. The behavioral problems exhibited at school and/or day care included: biting, kicking, choking, and hitting other children and each other. The boys were described as being generally out of control when they were with Jennifer. Blake had been hospitalized for psychiatric treatment. He was diagnosed with Attention Deficit Hyperactivity Disorder (“ADHD”) and an adjustment disorder with disturbance of emotions and conduct, possibly combined with a mild form of autism. Douglas, who was physically smaller (related to his premature birth), was described as a follower of Blake, imitating his behavior. Douglas was diagnosed with an adjustment disorder with anxiety, excessive fear, and ADHD. Steve claimed that Jennifer had (1) refused to follow the doctors' orders, (2) failed to fill a prescription for Blake's medicine, (3) taken Blake off a medicine without a doctor's permission, and (4) misapplied their medicines, thus causing injury.

¶ 8. The chancellor heard testimony from both parents, Dr. Wheat, a GAL, a day-care director, two schoolteachers, and Steve's wife, Danna, whom he had married in 2005. Exhibits included report cards, behavior calendars, attendance reports, and discipline reports. The day-care director testified that she and her employees had had difficulty with the boys' behavior, including biting, kicking, and hitting other children and teachers, resulting in the boys' dismissal. She testified further that she spoke to Jennifer several times by phone, but to no avail. Finally, she met with Jennifer, at which time she decided that she would have to ask the boys to leave, because Jennifer “denied that any of it happened and did not seem to want to work with [her].' ” Douglas's special-education teacher testified that Douglas was developmentally delayed. She stated that Douglas sometimes “overflows” with “information” such as, that (1) his “mom cries all weekend when we're at my daddy's because she's scared he'll kidnap us and she'll never see us again,” and (2) “Dad put Mom in jail and it's all his fault.” The boys' kindergarten teacher testified that Blake, for several weeks upon arrival in her class, had been “very aggressive, angry, moody, withdrawn if corrected,” but that he had improved recently, and that if he continued to improve he would be able to advance to the first grade. She testified that Blake had been on and off various medicines during the school year. She added that Blake's behavior had improved after positive reinforcement was used, and that he had begun taking Atarax daily at school. Douglas was in the same class and was doing much better academically in his second year of kindergarten.

¶ 9. When Jennifer testified regarding the boys' behavior problems, she was asked about nine specific instances of misbehavior documented in Blake's school records. She denied any knowledge of seven of them, even though she had initialed the reports. Jennifer admitted that she had not filled a prescription for Blake's Focalin medicine in more than four months. She admitted to being overwhelmed by the boys' problems and noted that their anxiety and depression had started as early as 2003, when Douglas was three. She admitted that she previously had been in denial regarding the boys' problems, yet she continued to deny any behavior problems at the day-care centers, blaming any problem on alleged abuse by center personnel. Regarding Blake's misbehavior at day care, she stated, “My child hated going there. And why should he not act out?”

¶ 10. Dr. Wheat submitted a report and testified. His assessment of Blake after twenty-eight sessions over a six-month period included the following:

[Blake] has a long history of being disruptive, non-compliant, a disregard for parental correction. After being discharged from the hospital he has shown some improvement at school and at the separate home[s] of Jennifer and Steven McDonald. However, he still has severe behavioral problems, is highly non-compliant (disobedient), exhibits frequent and severe tantrums, is immature and lagging in development. He definitely continues to need medication and close parental supervision. The parents need to acknowledge the need for and acquire scientific behavioral strategies and psychological interventions.

Dr. Wheat stated that Blake needs his parents to be “absolutely firm in their demand and expectation of compliance. This is serious and must be corrected in his formative years, preferably before first grade.”

¶ 11. Dr. Wheat described Jennifer's relationship with the boys as follows:

I think Jennifer tried to do everything she could to stop the non-compliant behavior of the children. Since she was unable to modify the children's behavior it seems she began to deny the extent of the children's problems and over-protect them. This overprotection has interfered with the

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