Murphy v. Murphy
| Decision Date | 10 February 1994 |
| Docket Number | No. 92-CA-1014,92-CA-1014 |
| Citation | 631 So.2d 812 |
| Parties | Clearmon L. MURPHY and Rachel Murphy v. Alan MURPHY. |
| Court | Mississippi Supreme Court |
James L. Martin, Martin Young & Wright, Jackson, for appellant.
William B. Jacob, Self Jacob & Kieronski, Meridian, for appellee.
Before DAN M. LEE, P.J., and SULLIVAN and PITTMAN, JJ.
This appeal arises from a custody dispute between the father and paternal grandparents over Samuel Murphy, a minor child. The lower court denied custody to all respective parties and vested custody of the child in the Palmer Home for Children, located in Columbus, Mississippi. Finding that the chancellor was not in a position to adequately assess the respective parties' fitness and ability to care and provide for the minor child and erred in refusing to permit the parties to submit additional evidence pertaining to the issue of fitness, we reverse and direct the chancellor to revisit the issue of fitness.
The present action began on October 29, 1990, with Clearmon and Rachel Murphy [hereinafter the Murphys] filing a complaint in the Neshoba County Chancery Court seeking to terminate the custody rights of their son, Alan Murphy, and requesting that they be awarded permanent custody of their grandson Samuel.
By an agreed order of the court dated February 8, 1991, Vicki Murphy, Alan's ex-wife and Samuel Murphy's natural mother, was joined as a necessary party. Alan Murphy answered the complaint, denying all the allegations and, in addition, filed a cross-complaint against Vicki Murphy for contempt and modification of divorce. Prior to trial, the chancellor ordered that Samuel remain in Alan's custody subject to visitation rights by the Murphys. The chancellor also issued an order which served to consolidate all of the matters between Samuel's father, mother and paternal grandparents.
A trial on the merits was held on February 10 through 13, and on March 30, 1992. At the outset, the chancellor stated that the scope of the case was limited to first, determining the fitness or unfitness of Alan Murphy, and second, after the determination of this fitness, determining the fitness of Clearmon and Rachel Murphy. At no time during the proceedings did Vicki Murphy assert a claim seeking custody of her son.
On March 30, 1992, the chancellor, after hearing testimony from Rachel and Clearmon Murphy, Alan Murphy, Vicki Murphy, and several other witnesses familiar with the family, agreed to permit the attorneys for the parties to summarize the remaining witnesses' testimony. The attorneys recited and offered their view as to what each of the remaining witnesses would testify to on direct, cross-examination and rebuttal. These witnesses included: J.R. Willis, Pam Murphy, Clearmon Murphy, and Alan Murphy.
On May 19, 1992, the chancellor, in his written Opinion determined that: 1) Alan Murphy was unfit to have the care and custody of Samuel; 2) Vicki Murphy had abandoned Samuel and had not asserted her right to custody; therefore she waived her right to custody; and 3) the Murphys were physically and emotionally unable to have the care and custody of Samuel. The chancellor additionally, on his own motion, called for further inquiry as to appropriate alternatives for custody of Samuel and set the date for the subsequent hearing. Prior to the hearing, Alan moved for a guardian ad litem to be appointed to represent Samuel.
At the outset of the hearing on July 21, 1992, the judge ruled that Alan's motion to appoint a guardian ad litem would be held in abeyance. During the course of this hearing, both parties brought forward alternative parties to assume custody of Samuel. The chancellor ruled that he would not consider any testimony or evidence relating to the fitness and ability of Alan or the Murphy's to obtain custody, as he had already decided to refuse to award custody to either party. After this additional hearing on the matter, the chancellor determined that none of the alternatives for custody were suitable and issued an order which provided for custody of Samuel to be in the Palmer Home for Children located in Columbus, Mississippi. As part of this order, the chancellor also set forth the visitation rights for Alan and the Murphys and further ordered Alan to pay $150.00 per month for the care and support of Samuel. In addition, since no official order had been entered to correspond with the chancellor's opinion of May 19, 1992, an order incorporating by reference said opinion was entered on August 31, 1992.
Subsequently and on July 31, 1992, the Murphys filed a Motion for a New Trial and/or alternatively Relief from the Order awarding custody to the Palmer Home for Children. The basis for their motion was that the award of custody was not in the best interest of the minor child and was against the overwhelming weight of the evidence. Alan also filed a Motion for a New Trial and/or alternatively Relief from Judgment. On August 18, 1992, a hearing was held on these consolidated motions and additional evidence was offered in order to demonstrate that the chancellor's order was not in the best interest of Samuel. Two social workers, Paul Davey and Rudijo Purdy, were offered by the Murphys. Both witnesses testified that it was in Samuel's best interest that he be placed with his grandparents and that placing the child in an institution should be considered only as a last resort, after all possibilities were exhausted for family members to assume custody. Alan had a continuing objection to this testimony, stating that issue was res judicata. The Murphys countered stating that the order concerning the chancellor's opinion was not filed until sometime in late July and, therefore, additional evidence was permissible. On September 7, 1992, the chancellor entered an order denying both motions, stating that the Opinion entered on May 19, 1992, rendered the matter res judicata. It is from this order that the Murphys appeal and Alan Murphy cross-appeals.
Alan and Vicki Murphy were married on February 11, 1986, and a son, Samuel Murphy was born of this marriage on November 20, 1986. The genesis of this battle over the custody of Samuel began with the divorce of Alan and Vicki Murphy. On April 8, 1988, the two adults were granted a divorce on the grounds of irreconcilable differences and pursuant to the decree, entered into a property settlement agreement which in part set forth the terms and conditions to govern the custody of their minor son, Samuel. Alan was awarded the permanent and exclusive care, custody, and control of Samuel subject to visitation rights of Vicki. As part of their agreement, it was set forth that "the visitation rights of Vicki Murphy are personal to her exclusively." In addition, she agreed to pay $10.00 per week as support for Samuel. After his parents divorced, Samuel spent a great deal of time at the home of his grandparents, the Murphys. Several witnesses, including Rachel Murphy and David Waddell, testified that after his parents divorced, Samuel stayed at the Murphys' home for long periods of time.
After the divorce and sometime in April of 1990, Vicki and Alan, although divorced at this time, once again lived together under the same roof as husband and wife. Alan and Vicki continued in this arrangement until sometime in June of 1990. In the early part of July 1990 Alan began living with Pam Murphy. The two married on September 8, 1990.
The Murphys claimed that from the time Alan and Vicki divorced in April of 1988, and until they filed their petition in chancery court in October of 1990, Samuel was neglected, abused and subjected to viewing his father using drugs. The Murphys also asserted that Samuel lived with them on their property for considerable periods of time. Alan claimed that he provided and cared for Samuel and that his parents constantly interfered with, and attempted to adversely interfere with, the upbringing of Samuel.
In October 1990, allegedly as a result of his parents interference, Alan and his wife, Pam, and Samuel moved several miles away from the Murphy's home and into a trailer. Samuel lived in the trailer with his father and step-mother until the court ordered the change in custody in August 1992.
After careful review and consideration of all the issues raised on both the appeal and cross-appeal, we find only two issues meriting discussion.
I. THE CHANCELLOR COMMITTED MANIFEST ERROR IN FINDING BOTH PARTIES UNFIT AND INCAPABLE OF HAVING PERMANENT CUSTODY OF THE MINOR CHILD AND AWARDING THE PALMER HOME FOR CHILDREN THE PERMANENT CARE AND CUSTODY OF THE MINOR CHILD
A chancellor sits as a fact-finder and in resolving factual disputes, is the sole judge of the credibility of...
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