Robison v. Lanford, 1999-CA-01836-COA.

• Decision Date: 19 March 2002
• Docket Number: No. 1999-CA-01836-COA.,1999-CA-01836-COA.
• Parties: Thomas Lee ROBISON, Appellant, v. Carol Denise Robison LANFORD, Appellee.
• Court: Mississippi Court of Appeals

822 So.2d 1034

Thomas Lee ROBISON, Appellant, v. Carol Denise Robison LANFORD, Appellee.

No. 1999-CA-01836-COA.

Court of Appeals of Mississippi.

March 19, 2002.

Rehearing Denied May 14, 2002.

Jefferson Davis Gilder, Southaven, attorney for appellant.

Kinney M. Swain, Greenville, attorney for appellee.

EN BANC.

ON MOTION FOR REHEARING

SOUTHWICK, P.J., for the Court.

¶ 1. Carol Lanford was awarded custody of her minor child as a result of proceedings that she brought to modify an earlier custody award. The father, Thomas Lee Robison, appealed. On June 26, 2001, we found reversible error because of the absence of findings on whether there had been a material change in circumstances, and insufficient evidence in the record to justify any change in custody. Before deciding whether to enter judgment for the appellant, we remanded for the chancellor to explain the manner in which the child's private conversation with her in chambers had been taken into account, as we had nothing to explain what was said or its weight. If it had been significant in the decision-making, then some record of that evidence had to be provided to us. On remand, the chancellor agreed that her conversation with the child in chambers was a significant factor in the decision to change custody, but the chancellor refused to provide any transcript or take other alternative steps to provide the evidence from the child. Because of the phrasing of the chancellor's order, we initially understood that Mr. Robison on remand had agreed that no further conversation by the chancellor with the parties' daughter should be held. Therefore we found the issue waived by the party who was alleging error.

¶ 2. On motion for rehearing, though, Mr. Robison has provided proof that he did not agree to the chancellor's refusal to conduct a hearing. Instead, by letter he informed the chancellor that he objected to another in-chambers conference unless it was on the record. Mr. Robison has moved that the record be supplemented with that letter, a motion that we grant. Thus he objected only to the chancellor's conducting of an in-chambers discussion unless it complied with our directive, namely, that in some manner a record of the conversation be made. Mr. Robison's motion for rehearing is granted, the former opinion is withdrawn, and we now reverse and remand.

FACTS

¶ 3. Thomas Lee Robison and Carol Denise Robison, now Lanford, were married in 1990. They had one child, Britney, born in 1991. In December 1992, Mr. Robison filed for divorce. It was granted on the grounds of irreconcilable differences by a decree dated March 25, 1993.

¶ 4. The divorce decree incorporated the parties' agreement to joint legal custody of the child. The agreement also provided that Mr. Robison was to have primary physical custody of the child during nine months of the year from September through May and that Mrs. Lanford was to have primary physical custody in June through August. Each party was awarded reasonable visitation rights during the period of the other's custody. Mr. Robison was to pay $150 per month child support for the three months in which Mrs. Lanford had physical custody of the child.

¶ 5. Mr. Robison filed a motion to modify custody on December 9, 1997. He sought sole custody of the child as well as child support from Mrs. Lanford. Mrs. Lanford answered the claim and filed a cross-motion seeking sole custody as well as child support from Mr. Robison. The dispute was settled by consent modification decree dated December 30, 1998. The decree left custody unchanged but clarified visitation.

¶ 6. In late March 1999, Mrs. Lanford noticed bruising on the child's buttocks. The child informed her that the bruising was a result of a spanking by her father. Mrs. Lanford took the child to a hospital emergency room where she was treated by Dr. Wheelis. The doctor noted that there were two circular bruises about six centimeters in diameter on the child's backside and diagnosed physical abuse. Mr. Robison stated that the child was spanked with a paddle because she had lied and also stolen something, and that excessive force was not used. The matter was referred to a social services agency for an investigation into possible child abuse. Although the report is not in the appellate record, the testimony showed that the investigation found the evidence to be inconclusive. No further action was taken.

¶ 7. Approximately one month later, Mrs. Lanford filed a new petition to modify the former decree and to give her sole legal and physical custody of the child. While that was pending, the chancellor granted the parties' joint motion for the Department of Human Services to conduct a detailed study of the living environment of both parents. The study concluded that either home would provide a stable environment for the child.

¶ 8. A hearing was held on July 28, 1999. The court reviewed the results of the home studies, listened to testimony of the parties, and held an in-chambers conference alone with the minor child. The court found that it would be in the best interest of the child for Mrs. Lanford to have physical custody with visitation privileges for Mr. Robison. Mr. Robison appealed.

¶ 9. In our initial consideration of the appeal, we remanded for additional development of the record. The chancellor responded to that remand order. We now decide the appeal.

DISCUSSION

1. Evidence to support change in circumstances

¶ 10. The evidence in the record is sparse to support that there was a material change in circumstances adverse to the interest of the child, or that the mother's receiving custody was in the child's best interest. Pace v. Owens, 511 So.2d 489, 490 (Miss.1987). The chancellor stated in her 1999 order that "it would be in Britney's best interest that her custody be awarded to her mother, Ms. Lanford, at this time." The chancellor did not discuss any material change in circumstances in the decree. She said that it was her "duty to weigh all of the evidence, and take it into consideration and to make a decision about where this child shall live at this point in her life." She found "that it would be in Britney's best interest that her custody be awarded to her mother, Ms. Lanford, at this time."

¶ 11. Proceedings that address a request for modification of custody should follow these steps: (1) the initial burden is on the party seeking the change to demonstrate that there has been a material change in the circumstances affecting the child; (2) if that is shown, it must also be shown that the change is detrimental to the child's welfare; and (3) finally, the chancellor must find that the change in custody is in the child's best interest. Bredemeier v. Jackson, 689 So.2d 770, 775 (Miss.1997).

¶ 12. On remand, the chancellor explained the implicit findings that she had earlier made, and gave them explicitly. The chancellor had relied in significant measure on the fact that Britney had once been bruised by her father during a spanking. That spanking, administered for lying about the taking of some candy, was found to be excessive. That "made it apparent that a parent does not know how and where to administer appropriate discipline.... Testimony of the father's drinking, temper, and inappropriate discipline were red flags to the court that the child's custody should be changed."

¶ 13. The chancellor then stated that because of these initial items of evidence, the parties gave permission for her to talk with Britney in chambers. It is there that a private conversation was held that the chancellor acknowledges, but will state no more, was "relevant" in her decision.

¶ 14. Chancellors are entrusted with substantial discretion, and using it they exercise excruciatingly important power to affect the lives of families. The discretion is subject to appellate review, however, if either party takes the proper steps to appeal. As the chancellor performs a vital role in the process, so does the appellate court. Perhaps each level at times gives too little credit to the role of the other, but the constitution and statutes create each court and guide its functioning. As part of that function, an appellate court is to affirm findings of fact by chancellors in domestic cases when they are "supported by substantial evidence unless the chancellor abused [her] discretion, was manifestly wrong, clearly erroneous or an erroneous legal standard was applied." Holloman v. Holloman, 691 So.2d 897, 898 (Miss.1996). The evidence for this review must be presented to the appeals court if this function is to have any meaning.

¶ 15. If the sufficiency of the evidence is attacked, it simply is not possible to review what is in the record, and if there is an insufficiency, accept unquestioningly that secret evidence provides the necessary additional quantum. Doing that is an abdication by this Court of its responsibilities. The trial court cannot be the initial fact-finder and then block the review of those facts. A sister state's intermediate appeal's court recently faced the exact issue:

If a trial court relies significantly on information obtained through the in camera interview to resolve factual conflicts relative to any of the other best interests factors and fails to place that information on the record, then the trial court effectively deprives this Court of a complete factual record on which to impose the requisite evidentiary standard necessary to ensure that the trial court made a sound determination regarding custody.... These critical decisions must be subject to meaningful appellate review.

Foskett v. Foskett, 247 Mich.App. 1, 634 N.W.2d 363, 367 (2001). We agree.

¶ 16. We understand that the chancellor believes that keeping this significant evidence secret is necessary to maintain her responsibilities. There are readily recognized procedures, though, for sensitive, classified, or otherwise non-public information to be obtained by a trial court and provided to an appellate...