Smith v. Jones

• Decision Date: 30 March 1995
• Docket Number: No. 91-CA-01184-SCT,91-CA-01184-SCT
• Citation: 654 So.2d 480
• Parties: Mary Jones SMITH 1 v. John JONES.
• Court: Mississippi Supreme Court

Page 480

654 So.2d 480

Mary Jones SMITH ¹ v. John JONES.

No. 91-CA-01184-SCT.

Supreme Court of Mississippi.

March 30, 1995.

Evan L. Thompson, Forest, for appellant.

Thomas Q. Brame, Jr., Bay Springs, for appellee.

En Banc.

SMITH, Justice, for the Court:

This case comes to this Court from the Chancery Court of Scott County on appeal of Mary Jones Smith (hereinafter Smith), aggrieved from the change of primary physical custody of her minor daughter, Carolyn, to the father, John Jones (hereinafter Jones). The chancellor found that it would not be in Carolyn's best interest for her legal custody to be placed with either parent and thus allowed joint custody of Carolyn to remain with both Smith and Jones as had been provided by the terms of the settlement agreement of the final divorce decree. However, the chancellor changed the primary physical custody based on the testimony of Paulette Hall, a social worker/child therapist, that Carolyn, as a six-year old, had obtained a precocious knowledge of human sexual behavior by allegedly observing her mother and stepfather's sexual activity. Hall testified that such precocious knowledge constituted child "sexual abuse."

Smith raises the following issues:

(I) Whether the hearsay testimony of a child of tender years regarding alleged sexual abuse is admissible under any lawful exception as provided by M.R.E. 803 when proffered by a social worker/child therapist.

(II) Whether the opinion testimony of a social worker/child therapist was inadmissible because the foundation tendering the witness as an expert was improper and whether her subsequent testimony regarding the use of anatomically correct dolls was improper because it is not a treatment accepted as proper therapy by the mental health profession.

(III) Whether it was proper for the chancellor to change custody of Carolyn from her mother to her father solely on the basis of alleged activities observed by the child between the mother and the mother's husband. This error was compounded by not requiring any showing that the best interest of Carolyn required a change.

On counter-appeal, Jones raises the following issues:

(I) Whether the chancellor's award of $100 per month in child support is inadequate.

(II) Whether the chancellor erred by not awarding Jones reasonable attorney's fees.

After careful examination, we find Issue III to be meritorious and dispositive of the case at bar, therefore we find no need to discuss the remaining issues raised by Smith. We also find no merit whatsoever to Jones' issues on his counter-appeal.

Admittedly, Smith's sexual conduct under circumstances allowing for Carolyn to "possibly" observe, was both inappropriate and exhibited poor judgment by Smith, if true. Nevertheless, this Court declines to affirm the chancellor's opinion based solely upon Paulette Hall's testimony that Carolyn's precocious knowledge of sexual behavior was acquired by observing her mother and stepfather's sexual activities. This is especially so when Hall claimed such conduct was "child sexual abuse" in direct contravention of Mississippi's legal definition of the term. The chancellor's finding of a material change in circumstances and adverse effects upon the child was based solely upon Carolyn's precocious sexual knowledge derived from supposedly viewing her mother and stepfather's sexual activities. This case simply does not involve child sexual abuse. There was absolutely no sexual contact "performed with or on the child" as defined in M.R.E. 803(25) or "upon" the child as defined in Miss.Code Ann. Sec. 43-21-105(m) (1972). The overwhelming proof clearly showed that if Carolyn's knowledge was "possibly" derived from her mother and stepfather's sexual activities, that their actions were certainly not deliberate.

This Court has held that a chancellor cannot use the indiscretions of the custodial parent as the sole ground to change child custody but must look at the overall facts of the case. Kavanaugh v. Carraway, 435 So.2d 697 (Miss.1983). The totality of the facts and circumstances in evidence in the case sub judice fail to support any modification of Carolyn's primary physical custody. Ballard v. Ballard, 434 So.2d 1357 (Miss.1983). The chancellor's decision is manifestly erroneous. We reverse and render.

FACTS

Mary Jones Smith and John Jones were formerly husband and wife. One child, Carolyn Jones, was born of the marriage on January 29, 1985. On April 13, 1990, Smith and Jones were granted a divorce on grounds of irreconcilable differences. The parties agreed to joint physical and legal custody of Carolyn with the primary physical custody given to Smith, who subsequently remarried. Jones also remarried and exercised visitation rights with Carolyn.

During the course of Carolyn's visits with Jones, he noticed what he considered to be some behavioral problems. Additionally, Jones testified that in May and June of 1991, Carolyn asked him about his "body parts" several times. Jones' mother retained the services of social worker/child therapist, Paulette Hall, apparently seeking some type of diagnosis or treatment of Carolyn. Hall conducted a series of therapy sessions with Carolyn while Carolyn was visiting with her father during an extended summer vacation. Hall initially advised Jones and his mother that if she determined that the child was being abused she would have to report it.

During the course of two of these therapy sessions, on June 10, 1991 and July 15, 1991, Carolyn expressed an interest in certain anatomically-correct dolls that were displayed in Hall's office. According to Hall, Carolyn, using the dolls, demonstrated her mother and stepfather in sexual intercourse and also exhibited a vast knowledge of oral sex. However, Carolyn objected to Hall's taking notes of their conversation and on one occasion implored Hall to "stop writing what I'm saying." Carolyn also recanted her prior statements to Hall about her mother and stepfather. On July 15, 1991, during a session with Hall, Carolyn stated that "I did not say that." No references were made by the child to sexual conduct in any of the other three sessions with Hall. From these two sessions, Hall concluded that Carolyn had a precocious knowledge of sex for a six-year old, which Hall opined constituted child sexual abuse. Hall claimed that children would not have this knowledge unless they had been abused. Hall testified that in her opinion, this knowledge was not an accidental witnessing of the parent's sexual actions. She also noted Carolyn's lack of attention and her hyperactivity. Hall testified that the only type of treatment she utilized for Carolyn was "behavioral modification" which is the proper method for treating hyperactive children.

Dr. Charlton Stanley, a psychologist, testified as Smith's expert witness. Dr. Stanley's opinion was that he could not identify the source of Carolyn's sexual knowledge and opined further that in today's society it is impossible for a five year old not to have been exposed to sexual behavior. He couldn't say where or how Carolyn acquired such knowledge and stated neither could anyone else, as it would be mere speculation. He noted it was "possible" that Carolyn had accidently observed Smith and her husband having sexual relations, but that if true, based on his evaluations and extensive testing of the parties, Smith's actions were certainly not deliberate. Stanley's tests revealed Smith and her husband to be normal, but his tests on Jones revealed stress which was conveyed to Carolyn, thereby contributing to the child's behavioral problems. He stated that Jones had severe problems with parenting which would continue to worsen, and that "the child is a real problem for Jones, but not for Smith."

Carolyn's two teachers, Liz Langley and Teresa Brown, testified that Carolyn was "no different than all the other kids; not 'hyper' and not a behavioral problem." They stated that children of this age group were aware of "sexual things, and that they know a lot more than we think they do." Brown stated children often talked about their mothers going to bed naked with their daddies.

Smith vehemently denied that Carolyn was a victim of sexual abuse or that she had been knowingly exposed to sexual acts of the Smiths performed in the privacy of their bedroom. Smith admitted that Carolyn had slept in their bedroom on "two or three occasions" specifically mentioning several days when their air conditioner was broken. Smith admitted that she and Glen had engaged in sexual relations, but she did not believe the child had witnessed such activities.

Based on the information provided to him by Hall and other sources ², Jones sought and obtained, in the Chancery Court of Scott County, a temporary restraining order (TRO) to retain custody of Carolyn until a modification hearing could be completed. This TRO went into effect on July 18, 1991. The trial on the issues of modification, and a trial of a counterclaim for contempt, occurred on August 27-29, 1991. The chancellor found that Jones had met his burden of proof and had established a substantial and material change in circumstances and that this change adversely affected the child. The chancellor then found that it would not be in the best interest of Carolyn for her legal custody to be placed with the Smiths or Jones by the continuing of joint physical and legal custody, but found that the best interests of the child were served by a change in the primary physical custody of the child from the mother to the father. Furthermore, the chancellor ordered Smith to pay to Jones $100 per month in child support.

From this decision, Smith appealed. Jones cross-appealed, arguing that the chancellor's grant of child support was inadequate and that the court erred in not awarding him reasonable attorney fees.

DISCUSSION OF LAW

WHETHER IT WAS PROPER FOR THE CHANCELLOR TO CHANGE CUSTODY OF THE MINOR, CAROLYN FROM HER MOTHER TO HER FATHER SOLELY ON THE BASIS OF...