Sanford v. Arinder, 2000-CA-00294-COA.

• Decision Date: 04 December 2001
• Docket Number: No. 2000-CA-00294-COA.,2000-CA-00294-COA.
• Parties: Kimberly Arinder SANFORD, Appellant, v. Charles Scott ARINDER, Appellee.
• Court: Mississippi Court of Appeals

800 So.2d 1267

Kimberly Arinder SANFORD, Appellant, v. Charles Scott ARINDER, Appellee.

No. 2000-CA-00294-COA.

Court of Appeals of Mississippi.

December 4, 2001.

Robert R. Marshall, Hattiesburg, Attorney for Appellant.

Martha Renee McBride Porter, Columbia, Attorney for Appellee.

Before McMILLIN, C.J., THOMAS, and CHANDLER, JJ.

THOMAS, J., for the Court.

¶ 1. Kimberly Arinder, the natural mother, appeals the lower court's order of custody modification which transferred custody of the two children to Charles Scott Arinder, the natural father. Kim asserts the following issues:

I. THE CHANCERY COURT DID NOT HAVE JURISDICTION OF THE PROCEEDINGS.

II. THE CHANCERY COURT DENIED KIM DUE PROCESS OF LAW.

III. CHANCELLOR THOMAS SHOULD HAVE RECUSED HIMSELF ON JULY 12, 1999 AND SET ASIDE THE ORDER OF JUNE 8, 1999.

IV. THE CHANCELLOR COMMITTED REVERSIBLE ERROR IN ORDERING A MODIFICATION OF CUSTODY.

V. THE CHANCELLOR COMMITTED REVERSIBLE ERROR BY APPOINTING A GUARDIAN AD LITEM AND ACCEPTING THE REPORT OF THAT GUARDIAN AD LITEM.

FACTS

¶ 2. Kim and Scott were married on May 23, 1990. They had two children, Devin, born March 27, 1991, and Dustin, born May 1, 1994. Kim and Scott divorced on the grounds of irreconcilable differences on January 25, 1996. The divorce decree provided that both Kim and Scott had joint legal custody of the children, while Kim was given physical custody and Scott was given liberal visitation rights. The parties have been in continuous litigation involving visitation and custody of the children ever since. As Scott points out, there have been over fifty entries in the docket since the divorce and prior to January 1999.

¶ 3. Scott filed an amended complaint to cite for contempt and for modification of custody on January 11, 1999, and served Kim with a summons to appear and answer on February 22, 1999. Kim appeared and the matter was set for trial on April 21, 1999.

¶ 4. Some time between May 24 and May 30, 1999, and while the above mentioned matter was pending before the court, Kim moved to Guam, taking the children with her. Kim gave Scott no notice of the move. Scott was to receive alternate weeks of summer visitation with the children beginning May 30, 1999. On May 30, 1999, Scott arrived at Kim's house to find it empty. Scott called Kim's attorney and learned from her that Kim and the children had moved to Guam.

¶ 5. Scott filed a motion for emergency relief and Dawn Fulce, Kim's attorney at that time, was given notice of the motion. Fulce appeared and the matter proceeded to trial. After hearing the motion, on June 8, 1999, Chancellor Thomas granted Scott temporary custody of the children and suspended child support payments while finding Kim in contempt and ordering her to return the children to Mississippi immediately. Kim ignored this order of the court and kept the children in Guam.

¶ 6. Kim filed a motion to recuse Chancellor Thomas and set aside the June 8, 1999 order. There was a hearing on such motions on July 13, 1999, wherein both motions were denied.

¶ 7. Scott traveled to Guam and brought the matter before the appropriate court in that territory. That judge enforced the temporary custody order and delivered physical custody of the children to Scott. Scott returned to Mississippi with the children at that time.

¶ 8. Kim then returned to Mississippi and filed a complaint for writ of habeas corpus and alleged that Scott had abused the children. The court, upon Kim's motion, appointed a guardian ad litem, Sheila Smallwood. The matter was heard again on September 13, 1999, where the court heard testimony from the guardian ad litem which clearly indicated that there was no abuse. The court also held that the issue of custody was deserving of a full trial and until that time it was in the best interests of the children to remain in Scott's custody. Due to ex parte contacts from Kim and members of her family, Chancellor Thomas recused himself from the case. Kim filed a second complaint for writ of habeas corpus which was heard by Chancellor Dale. The matter proceeded to trial in December of 1999, wherein the chancellor ordered a modification of custody, giving physical custody of the children to Scott.

ANALYSIS

I. DID THE CHANCERY COURT HAVE JURISDICTION OF THE PROCEEDINGS?

¶ 9. There is nothing in the record indicating that the chancery court lacked jurisdiction during the December 1999 trial. The chancery court had personal jurisdiction because "when a divorce has been granted by a Mississippi court and the court had personal jurisdiction of the defendant at the time of the divorce that personal jurisdiction continues." Covington v. Covington, 459 So.2d 780, 781 (Miss.1984). The Mississippi Supreme Court has held that a chancery court that enters the original divorce decree has continuing jurisdiction to subsequently modify its custody order even after the parent and child have moved from the state. Bradshaw v. Bradshaw, 418 So.2d 64, 65 (Miss. 1982). Since the chancery court had personal jurisdiction over the parties, notice is all that is required for subsequent pleadings (rather than actual service of process). Covington, 459 So.2d at 782.

II. DID THE CHANCERY COURT DENY KIM DUE PROCESS OF LAW?

¶ 10. There is nothing in the record indicating that the December 1999 trial did not afford Kim due process. Kim claims that the June 8, 1999 order was announced prior to any witness testimony. There is nothing in the record to support this assertion.

III. SHOULD CHANCELLOR THOMAS HAVE RECUSED HIMSELF ON JULY 12, 1999, AND SET ASIDE THE ORDER OF JUNE 8, 1999?

¶ 11. There is nothing in the record indicating that the December 1999 trial was marred by any bias or improper contact with Chancellor Thomas. Therefore, this issue is without merit. We refuse to give way to Kim's argument that the orders and proceedings prior to the December 1999 trial prejudiced Kim in any way. The December 1999 trial was properly conducted and the holding was based on the testimony presented at that trial. However, it should also be noted that, given the unusual circumstances, Chancellor Thomas made no improper actions in his role of chancellor.

¶ 12. While ex parte communications pertaining to an open case with either party, attorney or witness is improper, the improper ex parte communications that eventually caused Thomas to recuse himself were those that Kim and members of her family initiated. For Kim to now complain of ex parte communications is a farce. A hearing was held on the motion to recuse and testimony was given which established and supported the holding that Thomas was not biased and had not had improper contact with Scott or his attorney. There is nothing in the record that indicates otherwise.

IV. DID THE CHANCELLOR COMMIT REVERSIBLE ERROR IN ORDERING A MODIFICATION OF CUSTODY?

¶ 13. In a domestic case, such as the case at hand, the chancellor's findings will not be reversed unless manifestly wrong, clearly erroneous, or the proper legal standard was not applied. Bland v. Bland, 620 So.2d 543, 544 (Miss.1993). In showing by the preponderance of evidence that a material change in circumstances has occurred in the custodial home, the burden of proof is on the movant. Riley v. Doerner, 677 So.2d 740, 743 (Miss.1996).

¶ 14. In cases involving an initial award of custody, as in the case of most divorces, the chancellor is given considerable discretion so long as the chancellor follows the dictates of Albright v. Albright, 437 So.2d 1003, 1005 (Miss.1983), which provides that the chancellor consider the following factors in awarding custody:

We reaffirm the rule that the polestar consideration in child custody cases is the best interest and welfare of the child. The age of the child is subordinated to that rule and is but one factor to be considered. Age should carry no greater weight than other factors to be considered, such as: health, and sex of the child; a determination of the parent that has had the continuity of care prior to the separation; which has the best parenting skills and which has the willingness and capacity to provide primary child care; the employment of the parent and responsibilities of that employment; physical and mental health and age of the parents; emotional ties of parent and child; moral fitness of parents; the home, school and community record of the child; the preference of the child at the age sufficient to express a preference by law; stability of home environment and employment of each parent, and other factors relevant to the parent-child relationship.

Marital fault should not be used as a sanction in custody awards. Relative financial situations is not controlling since the duty to support is independent of the right to custody. Differences in religion, personal values and lifestyles should not be the sole basis for custody decisions.

Id.

¶ 15. In cases involving a request for modification of custody, the chancellor's duty is to determine if there has been a material change in the circumstances since the award of initial custody which has adversely affected the child and which, in the best interests of the child, requires a change in custody. Brawley v. Brawley, 734 So.2d 237 (Miss.Ct.App. 1999); Bredemeier v. Jackson, 689 So.2d 770 (Miss.1997); Bubac v. Boston, 600 So.2d 951 (Miss.1992); Phillips v. Phillips, 555 So.2d 698, 700-1 (Miss.1989); Pace v. Owens, 511 So.2d 489 (Miss.1987); Duran v. Weaver, 495 So.2d 1355 (Miss.1986); Smith v. Todd, 464 So.2d 1155 (Miss.1985); Tucker v. Tucker, 453 So.2d 1294, 1297 (Miss.1984); Marascalco v. Marascalco, 445 So.2d 1380 (Miss.1984); Kavanaugh v. Carraway, 435 So.2d 697 (Miss.1983). The application of this test as well as the use of the Albright factors in recognizing the substantial change in circumstances and the best interests of the child were most recently affirmed by this court in Thompson v. Thompson, 799 So.2d 919 (2001). Therefore, the non-custodial parent must satisfy a three part test: "a...