McGehee v. Upchurch, 97-CA-01499 COA.

• Decision Date: 09 February 1999
• Docket Number: No. 97-CA-01499 COA.,97-CA-01499 COA.
• Citation: 733 So.2d 364
• Parties: Shonna Upchurch McGEHEE, Appellant, v. Anthony UPCHURCH, Appellee.
• Court: Mississippi Court of Appeals

733 So.2d 364

Shonna Upchurch McGEHEE, Appellant, v. Anthony UPCHURCH, Appellee.

No. 97-CA-01499 COA.

Court of Appeals of Mississippi.

February 9, 1999.

James G. McIntyre, Jackson, Attorney for Appellant.

Arnold F. Gwin, Greenwood, Attorney for Appellee.

BEFORE BRIDGES, C.J., PAYNE, and SOUTHWICK, JJ.

BRIDGES, C.J., for the Court:

¶ 1. Shonna Upchurch McGehee appeals the judgment of the Carroll County Chancery Court denying her motion for modification of former judgment of divorce which granted primary physical custody of the minor child to the natural father, Anthony Upchurch, granting the counterclaim of Anthony for child support payments, and establishing structured visitation rights of Shonna. Finding Shonna's assignments of error to be without merit, we affirm.

FACTS

¶ 2. Anthony Upchurch was granted a divorce from Shonna Upchurch McGehee on the ground of adultery by decree of the Carroll County Chancery Court on February 22, 1996. Upon agreement of the parties, both were granted joint legal custody of their minor child, Hillary Lauren, and Anthony was granted primary physical custody, subject to visitation rights granted to Shonna. Shonna's visitation rights were described in the final judgment of divorce as "liberal reasonable visitation with Hillary, subject to the following restriction: So long as Shonna Upchurch is unmarried to Gary McGehee, Shonna Upchurch shall keep Hillary out of the presence of Gary McGehee at all times when she is exercising her visitation rights with Hillary." Shonna and Gary McGehee were married on March 15, 1996.

¶ 3. Since the rendition of the divorce decree until September 1996, Anthony allowed Shonna to exercise her visitation rights liberally (approximately fourteen days a month). In September 1996 when Hillary began kindergarten, Anthony restricted Shonna's visitation rights to alternating weekends beginning at 11:30 a.m. when Hillary is dismissed from kindergarten until Monday at 8:00 a.m. when Shonna takes Hillary to kindergarten.

¶ 4. On September 23, 1996, Shonna filed a motion to modify former judgment of divorce seeking a change in the primary physical custody of the minor child. In his answer to motion to modify judgment of divorce and counterclaim, Anthony requested that Shonna be ordered to pay reasonable child support and attorney fees in defending the modification action.

¶ 5. The matter was tried on January 27 and 28, 1997. At the conclusion of the trial, the chancellor found Shonna had failed to prove that a material change in circumstances had occurred within the custodial home which adversely affected the best interest of the minor child. Therefore, the chancellor denied Shonna's motion to modify the primary physical custody provisions of the divorce decree.

¶ 6. On March 4, 1997, Shonna filed a motion for a new trial, or in the alternative, for the court to amend its findings or make additional findings alleging that the opinion rendered from the bench on January 28, 1997, and written opinion rendered on February 6, 1997, were contrary to the overwhelming weight of credible evidence and not supported by the law or the evidence.

¶ 7. The chancellor entered judgment on April 11, 1997, denying the motion for modification of the original judgment of divorce and granting Anthony's counterclaim for child support and ordering Shonna to pay child support to Anthony for the minor child in the amount of $90 per month commencing on March 15, 1997 and continuing on the fifteenth of each month thereafter until the child is emancipated, self sustaining, or by order of the court. The court denied Anthony's request for attorney fees. Further, the chancellor set forth structured visitation arrangements of the non-custodial parent: Shonna would have visitation rights with the minor child commencing every other weekend starting the first week of March 1997 from Thursday after school when Shonna will pick up the child from school until the following Monday morning when Shonna will return the child to school and Anthony will pick the child up from school; and Shonna will have the child on alternate weeks (i.e., during those weeks when she does not have visitation with the child beginning on Thursday) from Wednesday after school, and she will return the child to school the following Thursday morning and like visitation to continue until further order of the court.

¶ 8. The motion for new trial or for additional findings of facts was denied on October 21, 1997.

Aggrieved, Shonna perfected this appeal alleging:

I. THE LOWER COURT ERRED BY FAILING TO EXCLUDE ANY AND ALL TESTIMONY REGARDING ISSUES PRIOR TO THE COURT'S FINAL DIVORCE DECREE.

II. THE LOWER COURT ERRED BY HOLDING THAT NO MATERIAL CHANGE IN CIRCUMSTANCES ADVERSE TO THE CHILD OCCURRED SINCE THE ENTRY OF THE FINAL DIVORCE DECREE.

III. THE LOWER COURT ERRED BY GRANTING THE APPELLEE AN AWARD OF CHILD SUPPORT WHEN NO SUBSTANTIAL EVIDENCE WARRANTED SUCH A MODIFICATION.

ARGUMENT AND DISCUSSION OF LAW

I. WHETHER THE LOWER COURT ERRED BY ADMITTING TESTIMONY PERTAINING TO ISSUES RESOLVED IN FINAL DIVORCE DECREE.

¶ 9. The supreme court has repeatedly held that in order to justify the modification of a divorce decree, the petitioner must show a material change in circumstances arising after the original decree was entered. See, e.g., Anderson v. Anderson, 692 So.2d 65, 70 (Miss.1997)

; Morris v. Morris, 541 So.2d 1040, 1042-43 (Miss.1989). Shonna contends the lower court erroneously allowed testimony to be presented during the modification hearing regarding issues predating the final divorce decree. Anthony argues that the lower court sustained Shonna's objections to any evidence offered by Anthony pertaining to Shonna's activities prior to the divorce with one exception.

¶ 10. The record reveals the chancellor sustained Shonna's objection each time Anthony raised the issue of pre-divorce activities. However, the chancellor did allow Anthony to make a proffer of what his evidence would have been. The chancellor's ruling and Anthony's proffer were well within the procedural rules allowing such proffers in question and answer form. Buchanan v. Buchanan, 587 So.2d 892 (Miss.1991). See M.R.E.103(b).

¶ 11. After Shonna's counsel questioned Anthony during cross-examination about Shonna's conduct and ability as a mother before February 22, 1996, Anthony moved the court to admit the excluded proffer concerning Shonna's pre-divorce conduct, but the chancellor again refused.

¶ 12. The only instance in which the chancellor allowed Anthony to go behind the final judgment of divorce over Shonna's objection was during his cross-examination of Shonna's expert witness, Dr. Angelia O'Briant Herzog, a clinical psychiatrist. On direct examination, Dr. Herzog was questioned regarding the history of marital discord given by Shonna and Dr. Herzog's reliance on that history in her evaluation and diagnosis of the minor child.

¶ 13. Thereafter, the chancellor overruled Shonna's objection to the cross-examination on the history taken stating:

It appears to the Court that [Dr. Herzog's] evaluation and histories that she took involved information that was before this Divorce Decree, and that was incorporated in her diagnosis and prognosis; therefore, it is competent to go into it.

¶ 14. The chancellor also allowed into evidence the deposition of Shonna previously given in the divorce proceeding for the limited purpose of ascertaining the history Dr. Herzog obtained therefrom.

¶ 15. The standard by which this Court reviews a trial judge's decision to admit evidence was stated in Stewart v. Stewart, 645 So.2d 1319, 1320 (Miss.1994) (quoting Century 21 Deep South Properties v. Corson, 612 So.2d 359, 369 (Miss.1992)):

The relevancy and admissibility of evidence are largely within the discretion of the trial court and reversal may be had only where that discretion has been abused. Unless the trial judge's discretion is so abused as to be prejudicial to a party, this Court will not reverse his ruling.

¶ 16. Relevant evidence is any evidence having a "tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." M.R.E. 401. Although relevant evidence is generally admissible, it may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. M.R.E. 403. Given the contours of Rules 401 and 403, this Court finds that there was no abuse of discretion.

¶ 17. We first address the relevancy of the cross-examination. The final judgment of divorce reflected the agreement of Anthony and Shonna as to child custody:

The parties, both personally and by their attorneys, dictated into the record their agreement as to alimony, child custody, and property settlement, all as more fully ordered hereinafter, and the court, finding that said agreement is fair and is in the best interest of the minor child of the parties, does hereby approve said agreement and adopt it as the judgment of this court. It is, therefore, hereby ordered and adjudged as follows, to-wit:

2. The parties are hereby granted joint legal custody of the minor child of the parties, Hillary Upchurch, but sole physical custody of Hillary Upchurch is granted to Anthony Upchurch....

¶ 18. Dr. Herzog testified on direct that less than one month after the final judgment of divorce was entered, Shonna hired Dr. Herzog to evaluate Hillary to determine whether Hillary was suffering adversely from the impact of separation from Shonna. Dr. Herzog testified that she relied upon Shonna to give her the history of Hillary and the circumstances about which Shonna was concerned. The testimony elicited on cross-examination established that Dr. Herzog also relied upon the deposition Shonna gave during the divorce proceeding. Certainly, Anthony was entitled to cross examine Dr. Herzog regarding the basis for her evaluation of the minor child, which was...