Robison v. Lanford

• Decision Date: 03 April 2003
• Docket Number: No. 1999-CT-01836-SCT.,1999-CT-01836-SCT.
• Citation: 841 So.2d 1119
• Parties: Thomas Lee ROBISON v. Carol Denise Robison LANFORD.
• Court: Mississippi Supreme Court

841 So.2d 1119

Thomas Lee ROBISON v. Carol Denise Robison LANFORD.

No. 1999-CT-01836-SCT.

Supreme Court of Mississippi.

April 3, 2003.

Jefferson Davis Gilder, Southaven, for appellant.

Kinney M. Swain, Greenville, for appellee.

EN BANC.

COBB, JUSTICE, FOR THE COURT:

¶ 1. At issue in this appeal is whether a record of in-chambers discussions with children must be made by the trial judge. We grant certiorari because this is an issue of first impression and one of broad public importance, as children are often interviewed by judges off-the-record, and frequently these in-chambers discussions weigh heavily in the trial court's decision. We affirm the Court of Appeals' reversal of the chancellor's decision and remand with instructions regarding the conduct of additional proceedings.

FACTS

¶ 2. Carol and Thomas Robison divorced in 1993 and agreed to joint legal custody of their daughter, Brittany, who was to live with Thomas nine months of the year and with Carol the remaining three months. In 1997 Thomas filed a motion to modify custody in order to obtain sole custody of Brittany. Carol answered and filed a cross-motion seeking sole custody. The dispute was settled by a consent modification decree in December 1998, which left custody unchanged but clarified visitation.

¶ 3. Soon thereafter, Carol filed a new petition to modify custody, citing the finding of two small bruises on Brittany's buttocks.¹ The bruises were the result of a spanking given by Thomas. The matter was referred to Department of Human Services (DHS) for an investigation into possible child abuse. DHS conducted a detailed study of the living environments of both Carol and Thomas and concluded that both parents would provide a stable environment for the child.

¶ 4. A hearing was conducted by the chancellor in July 1999. She reviewed the DHS home studies' results and heard testimony from all parties, including an in-chambers, off-the-record interview with Brittany. The chancellor found it would be in the best interest of the child for Carol to have physical custody. Thomas appealed.

¶ 5. The Court of Appeals remanded for additional development of the record, asking that the chancellor:

make such findings of fact as she finds appropriate to explain the evidence that she found to justify a change in custody. If weight was given to what Brittany stated in chambers, then that became evidence that the parties and this appellate court cannot review since it is not in the record. A new and transcribed interview with Brittany would be necessary, held under such restrictions as are acceptable to the chancellor and the parties that still would allow us to review a record of what Brittany says.

Robison v. Lanford, No.1999-CA-01836-COA, 2001 WL 714794 at ¶ 24 (Miss. Ct. App. June 26, 2001) ("Robison I"). The chancellor did not conduct any further hearing or interview, and in her Findings on Remand stated that she "weigh[ed] the testimony and evidence presented and the Court's conversation in chambers with the minor child" and "found without a doubt that the child's custody should be awarded to the mother." She went on to add that "[a]ll this Court will disclose regarding the off-the-record conversation with [Brittany] is that it was relevant." She refused to provide any information gathered in the conversation or to take any additional steps to provide any evidence of that conversation or to hold a new transcribed interview as suggested by the Court of Appeals.

¶ 6. The chancellor also erroneously stated that Thomas had objected to another interview with Brittany. Based on that statement, the Court of Appeals found the issue had been waived by Thomas, the party alleging error, and affirmed the chancellor's decision. Robison v. Lanford, No.1999-CA-01836-COA (Miss.Ct.App. Dec. 4, 2001) ("Robison II").

¶ 7. Thomas filed a motion for rehearing and submitted a letter from his attorney to the chancellor, written after the COA opinion but before her findings on remand, which clearly stated that Thomas did not object to another in-camera interview with Brittany, but rather that he objected only if the interview was to be off the record. The Court of Appeals granted Thomas's motion for rehearing, withdrew its former opinion and, on March 19, 2002, entered its opinion reversing the judgment of the chancellor and remanding the matter for additional proceedings regarding custody. Robison v. Lanford, 822 So.2d 1034 (Miss. Ct.App.2002) ("Robison III"). The Court of Appeals stated that "[t]aking an unduly independent approach to protecting [Brittany's] best interest, the chancellor has not allowed a record to be made of the basis of [her] decision. We do not want this tug and pull between the two courts to distract either court from the issues of the child's welfare. Therefore, taking into account the long passage of time since the initial modification decision, and factoring in our reluctance to make a final decision here on appeal that would be so centrally affected by this institutional disagreement, we remand for further proceedings," at ¶ 24, at which "[a] record of all evidence acquired must be made." Id. at ¶ 33.

¶ 8. From that decision, Carol filed a petition for certiorari and we granted her petition, although we agree with the reasoning of the Court of Appeals, in order to include proper procedures for conducting the in-chambers conference.

STANDARD OF REVIEW

¶ 9. The standard of review in child custody cases is narrow. Reversal of a chancellor's judgment requires that the chancellor be manifestly wrong or have "applied an erroneous legal standard." Lee v. Lee, 798 So.2d 1284, 1288 (Miss. 2001) (citing Williams v. Williams, 656 So.2d 325, 330 (Miss.1995)). 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). It is the role of the chancellor to ascertain whether witnesses and evidence are credible and the weight to give each. Chamblee v. Chamblee, 637 So.2d 850, 860 (Miss.1994). Let us remember, it is the responsibility of this Court, like the chancellor, to make the best interest of the child our "polestar" consideration. Hensarling v. Hensarling, 824 So.2d 583, 587 (Miss.2002).

DISCUSSION

I. WHETHER, BY CONSENTING TO THE IN-CHAMBERS INTERVIEW BY THE COURT, THE PARTIES WAIVED ANY OBJECTIONS TO THE COURT'S RULINGS OR FINDINGS OF FACT BASED UPON THE IN-CHAMBERS INTERVIEW WITH THE CHILD.

A. Whether waiver prevents appellate review.

¶ 10. The agreement of counsel and chancellor to the in-chambers interview with Brittany does not waive the issue for appellate review. It is essential that appellate courts have a complete and accurate record when reviewing child custody judgments.

¶ 11. In Dykes v. Dykes, 488 So.2d 368, 371 (La.Ct.App.1986), a Louisiana appellate court stated that "even though the presence of counsel was waived ... with no record having been made of the proceeding we are without means [to] review... the reliability of any stated preferences as to custody [by the children]." In Dykes the counsel invited the trial court to interview in-chamber the children and waived any objection to said interview. The court acknowledged that such in-chambers interviews are important in "custody proceedings to relieve the child of the possibly intimidating presence of the mother and father"; however, the court went on to say "such an interview must be conducted with a reporter present and a record made of the questioning by the court and the answers of the [children]." Id.

¶ 12. In an Arkansas case, the transcript of two minor children's testimony, in keeping with an agreement by the parties and representations made by the trial judge to these children at the time they were interviewed in chambers, was sealed. The appellate court ordered unsealing of the record, finding that Ark.Code Ann. § 16-64-129(a)(2) and Administrative Order Number 4:

appear to countenance a waiver of the record by the parties. However, for the following reason this would not appear to be a satisfactory solution to the problem of allowing children to testify with confidentiality. If the parties agree to waive a record and permit the child or children to be interviewed privately by the trial judge, and the aggrieved parent desires to appeal, the absence of a record virtually renders the judge's decision irreversible.

McNair v. Johnson, 75 Ark.App. 261, 57 S.W.3d 742, 744 (2001).

¶ 13. Here, there is no dispute that Thomas, Carol and respective counsel agreed to the off-the-record interview of Brittany. Ordinarily a waiver between two parties would preclude that issue from appellate review, but when the waiver concerns the best interest of a child, we will not allow it to prevent appellate review, especially where no guardian ad litem was appointed to protect the child's best interest. The concern of this Court is that, although the chancellor admittedly relied on the in-chambers interview to make her decision² she made no findings on the record concerning that interview, even after the Court of Appeals instructed her to do so. She stated: "[a]ll this Court will disclose regarding the off-the-record conversation with [Brittany] is that it was relevant." While the stipulation would ordinarily waive any objection to the lack of a record, we find that the need for a record to enable meaningful appellate review outweighs any need to find waiver here.

¶ 14. The chancellor first notes in her Findings on Remand, that Thomas's remarriage was a substantial change in circumstances. This Court has long held that remarriage itself does not constitute a material change in circumstances that would justify a change of custody. Allen v. Allen, 243 Miss. 23, 33, 136 So.2d 627, 632 (1962). At the time of the hearing, Thomas had...