Sullivan v. Stringer, 97-CA-01645-COA.
| Decision Date | 20 April 1999 |
| Docket Number | No. 97-CA-01645-COA.,97-CA-01645-COA. |
| Parties | Linda Juawice (Stringer) SULLIVAN, Appellant, v. Rodney Lane STRINGER, Appellee. |
| Court | Mississippi Court of Appeals |
R.K. Houston, Bay Springs, Attorney for Appellant.
W. Terrell Stubbs, Mendenhall, Attorney for Appellee.
BEFORE THOMAS, P.J., LEE, AND SOUTHWICK, JJ.
SOUTHWICK, J., for the Court:
¶ 1. This is an appeal from an order of the Simpson County Chancery Court changing child custody from the mother to the father. On appeal the mother argues that the chancellor erred in finding a material change in the child's circumstances justifying a change in custody. She also seeks attorney's fees. We find that the chancellor's primary reason for changing custody is not a justification permitted by controlling precedent. Therefore we reverse and remand for further proceedings.
FACTS
¶ 2. On July 7, 1995, Linda Juawice Stringer Sullivan and Rodney Lane Stringer were granted a divorce on the grounds of irreconcilable differences. By mutual agreement, primary custody of the couple's three-year-old daughter, Hillarie Lane Stringer, was given to the mother, while the father was to have liberal visitation.
¶ 3. After Rodney Stringer remarried, he filed on March 31, 1997, a petition for modification. The portion of the petition relevant to this appeal requested that primary custody of Hillarie Stringer be granted to Rodney Stringer. Trial was held on October 14, 1997. The court ruled from the bench to transfer custody to Rodney Stringer effective December 25, 1997, at 5:00 p.m.
¶ 4. Sullivan filed several motions to stay both with the trial court and the supreme court, but each was denied.
DISCUSSION
¶ 5. Several witnesses testified as to improper conduct by the mother, Linda Sullivan. These included alcohol abuse at a number of parties, giving alcohol to minors including the minor daughter, offering drugs to minors, making romantic advances towards a teenage boy, physical abuse of the child, staying a couple of nights with one man while having a different live-in male friend, driving while intoxicated, letting the child stay up until early in the morning, threatening suicide, allowing the child to sleep in the bedroom with Linda and a male companion, and having sex with a man while the child was in the bed. The truth of much of this was contested. The chancellor did not make factfindings as to most of these events.
¶ 6. The chancellor principally relied in his opinion on the multiple sexual relationships that the mother maintained. It was the existence of those relationships, not any finding that fornication or other sexual activities occurred in view of the daughter (with one possible exception), that underlie his decision. He never found that drug abuse, propositioning a teenager, or many of the scandalous charges were true. In fact, on several occasions the chancellor stated that he believed that the mother was a fit parent. If that is to be taken as a finding, that should mean that the chancellor rejected a large portion of the charges.
¶ 7. We will accept a chancellor's fact-findings if they are supported by substantial evidence, unless there has been an abuse of discretion or manifest error. In addition, application of an erroneous legal standard to the facts may cause reversal. Cummings v. Benderman, 681 So.2d 97, 100 (Miss.1996).
¶ 8. Regarding abuse of alcohol at a number of parties, the chancellor determined that while Sullivan had on previous occasions consumed too much alcohol, it was neither illegal nor terribly significant to his decision. Neither was the court convinced that physical abuse had occurred given that there were only one or two instances of marks on the child and the parties disputed the cause.
¶ 9. Other than the events of cohabitation that will be discussed below, the chancellor made no other findings. The supreme court has held that "[a]s to issues of fact where no specific findings have been articulated by the chancellor, this Court proceeds upon the `assumption that the chancellor resolved all such fact issues in favor of the appellee.'" Anderson v. Anderson, 692 So.2d 65, 72 (Miss.1997) (quoting Love v. Barnett, 611 So.2d 205, 207 (Miss.1992)). We interpret that only to mean that to the extent other facts are needed to support the chancellor's analysis of the law, those facts would be implicitly found. However, if the incorrect legal standard was applied, we will not infer the facts necessary to support other law that the chancellor did not analyze. That becomes important in this case. The inference is that in the written or spoken opinion, the judge expressed some findings and failed to articulate the other findings that he must have made to reach the result under the law that he applied. There would be no such logical inference if the judge did not even expressly consider certain law. Here, the relevant law is what has to be proven in order to change custody.
¶ 10. What the court relied upon here was a concern "that this mother has lived with three different people prior to marrying the last person." The chancellor found:
There was no question for six months [Linda Sullivan] lived with one man without the benefit of marriage with the child present, with the child sleeping in the bedroom. Likewise, with her present husband she has done that. This court finds that in and of itself would justify a material change in circumstances that would adversely affect the child. In doing this, the court with a five year old being subjected to seeing either of the parent, and in this case the mother, living with a person that she is not married [to] has got to be affected. These first years with the child at her age has got to leave impressions.
¶ 11. The chancellor was also of the apparent belief that Ms. Sullivan would not be married to that third man if not for the proceedings regarding custody of the daughter. Parts of the chancellor's opinion suggest that he rejected the other allegations. The chancellor pointed out that Ms. Sullivan had married, thus stopping what he perceived as the principal harm that she was causing her child. The chancellor noted that she was attending school in an effort to improve herself. Most importantly, he declared that The chancellor later determined that while the father had the best parenting abilities, he also felt the mother was a good parent. Moreover, the trial court acknowledged "[t]he fact that the mother has had problems, she is correcting those problems and, in fact, evidently about back to where she needs to be." He felt "the mother [was] on the right track."
¶ 12. A finding that the mother was a fit parent is logically inconsistent with a unstated finding that she had sex with a man while her child was in the bed, offered drugs and alcohol to minors, or engaged in other of the charged conduct. Nonetheless, we are loath to imply that he found the other charges were baseless, especially when the absence of findings generally supports the lower court decision, not weakens it. We conclude that no inference can be made about the other allegations.
¶ 13. The primary factor governing the chancellor's decision was the relationships Linda Sullivan had out of marriage. It is undisputed that she carried on consecutive relationships with at least three different men over the course of approximately 18 months. Whether such conduct can constitute a material change in circumstances justifying a change of custody is our issue. This is a question of law and as such it is reviewed de novo.
¶ 14. Modification of custody should not occur unless there "has been a material change in circumstances which adversely affects the child's welfare." Cheek v. Ricker, 431 So.2d 1139, 1143 (Miss.1983). We note first that cohabitation between persons not married to each other is against the law in Mississippi. Miss.Code Ann. § 97-29-1 (Rev.1994). That this law is frequently broken has been recognized by the supreme court, but still cohabitation "remains a crime against public morals and decency...." Davis v. Davis, 643 So.2d 931, 935 (Miss.1994). Commission of crimes by a custodial parent, even if they are only about sex, is properly the concern of a chancellor.
¶ 15. The chancellor's bench opinion left little doubt as to his feelings about the impact of a live-in relationship between a custodial parent and her paramour both on society as a whole and a child in particular. Several excerpts from the chancellor's opinion make this quite clear:
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