Touchstone v. Touchstone, 94-CA-00172-SCT

• Decision Date: 10 October 1996
• Docket Number: No. 94-CA-00172-SCT,94-CA-00172-SCT
• Citation: 682 So.2d 374
• Parties: William C. TOUCHSTONE v. Monna Ailene TOUCHSTONE.
• Court: Mississippi Supreme Court

Page 374

682 So.2d 374

William C. TOUCHSTONE v. Monna Ailene TOUCHSTONE.

No. 94-CA-00172-SCT.

Supreme Court of Mississippi.

Oct. 10, 1996.

Paula N. Stennett-Yancey, Goldman & Associates, Meridian, for appellant.

Samuel D. Habeeb, J. Mack Varner, Varner Parker Sessums & Underwood, Vicksburg, for appellee.

Before PRATHER, P.J., and McRAE and MILLS, JJ.

McRAE, Justice, for the Court:

This appeal arises from a January 21, 1994 order of the Humphreys County Chancery Court denying and dismissing Dr. William Touchstone's motion seeking modification of the physical custody of his son, Wesley Carlisle Touchstone. Dr. Touchstone contends that the chancellor erred in not finding that the mother's alleged violent outbursts and her attempts to build a case of child sexual abuse against the father were a substantial change of circumstances warranting a change in custody. He further asserts that Monna Touchstone should not have been allowed to invoke the Rule 503 psychotherapist-patient privilege so as to keep a licensed clinical social worker from testifying regarding the mother's interference with and "coaching" of the child while he was being examined. Dr. Touchstone raises several other evidentiary issues as well. Although the Rule 503 privilege does not extend to licensed clinical social workers, we find that any error in excluding the testimony was harmless since the mother freely acknowledged her participation in the examination session. Finding that the chancellor properly focused on the best interests of the child in determining not to make a change in custody, we affirm his decision.

I.

Monna and William Touchstone were granted a divorce on grounds of irreconcilable differences by the Humphreys County Chancery Court on November 10, 1992. Pursuant to the Child Custody and Property Settlement Agreement entered into by the parties, Monna Touchstone was awarded primary care, custody and control of the minor child, Wesley, born December 29, 1990. The parents shared joint legal custody and Dr. Touchstone was granted visitation on the first and third weekends of each month, as well as on various holidays.

Asserting that Dr. Touchstone had harassed her, exhibited violent behavior during "visitation swaps," and caused the child to become "confused, angry and full of hatred," Monna Touchstone filed a Motion for Citation for Contempt, Motion for Modification of Former Decree and Motion for Restraining Order and Permanent Injunction on April 15, 1993.

On November 2, 1993, Dr. Touchstone filed his Motion for Modification of Final Judgment, for Citation of Contempt, for Restraining Order and Permanent Injunction, and Complaint for Damages. He asserted that there had been a substantial change in circumstances warranting modification in the custody arrangement, charging that his former wife "has demonstrated mental instability, hysteria and an inability to control her anger" and that she had attempted to brainwash Wesley into believing he had been sexually molested by his father. He further raised claims of slander and intentional infliction of emotional distress, seeking both compensatory and punitive damages.

After a three-day hearing, the chancellor found that within days after the divorce was final, "the parties commenced a vendetta between themselves" and that "[t]he proof shows immediately following subsequent to the divorce, both parties vented their ire and frustration at the other and neither is blameless." He found, however, that there was "no parental behavior that poses clear danger to the minor's mental or emotional health to justify a change in custody" and that there had been no material change in circumstances adverse to the child's best interests. The chancellor therefore denied Dr. Touchstone's motion to modify primary physical custody, but increased his visitation time with his son, and enjoined the parties from bringing other people with them, "particularly girlfriends and/or boyfriends," when picking up and delivering Wesley.

Aggrieved by the chancellor's refusal to grant him primary custody of his son, Dr. Touchstone now asks this Court to determine whether the chancellor erred in not finding that there had been a change in circumstances since 1992 and that it would be in Wesley's best interests to be placed in his father's custody; in allowing Monna Touchstone to invoke the Rule 503 psychotherapist-patient privilege to prevent a licensed clinical social worker from testifying regarding her examination of the child; and in not admitting certain evidence Dr. Touchstone sought to introduce.

II.

A series of unpleasant incidents occurring after the November, 1992, divorce form the basis of Dr. Touchstone's assertions that there has been a material change in circumstances warranting a change in custody of their minor child, Wesley, as well as of Monna Touchstone's contention that custody should not be modified. These incidents are related only by their association with weekend visitation exchanges and their occurrence in the presence of the child. Each involved the exchange of vicious, profanity-laden accusations and insults between the parties. The battle was heightened by Monna's inferences that Dr. Touchstone had sexually abused the child. She testified that she took Wesley to see two clinical social workers, Rivers Carpenter and Brenda Chance, because of her concern about Wesley's behavior. She alleged that he was making "disturbing" statements such as "I've touched my Daddy's peepee. My Daddy touches mine," and "My Daddy puts his penis on my face." Dr. Wood Hiatt, however, who observed Wesley and Dr. Touchstone, testified that the two had a good father-son relationship.

III.

In matters concerning child custody, "this Court will not reverse a Chancery Court's factual findings, be they of ultimate fact or of evidentiary fact, where there is substantial evidence in the record supporting these findings of fact." Smith v. Jones, 654 So.2d 480, 485 (Miss.1995) (quoting Cooper v. Crabb, 587 So.2d 236, 239 (Miss.1991)). Furthermore, the chancellor's findings will not be disturbed when supported by substantial evidence unless the chancellor abused his discretion, was manifestly wrong or clearly erroneous or applied an erroneous legal standard. Williams v. Williams, 656 So.2d 325, 330 (Miss.1995); Smith, 654 So.2d at 485; Chamblee v. Chamblee, 637 So.2d 850, 860 (Miss.1994).

IV.

"In all child custody cases, the polestar consideration is the best interest of the child." Sellers v. Sellers, 638 So.2d 481, 485 (Miss.1994); Moak v. Moak, 631 So.2d 196, 198 (Miss.1994). This Court has held that the prerequisites to the modification of a child custody agreement are: "(1) proving a material change in circumstances which adversely affects the welfare of the child and (2) finding that the best interest of the child requires the change of custody." Smith v. Jones, 654 So.2d 480, 486 (Miss.1995). There must be sufficient evidence in the record supporting the chancellor's opinion for this Court to say that the chancellor has not abused his discretion. Id. "When the environment provided by the custodial parent is found to be adverse to the child's best interest, and ... the circumstances of the non-custodial parent have changed such that he or she is able to provide an environment more suitable than that of the custodial parent, the chancellor may modify custody accordingly." Riley v. Doerner, 677 So.2d 740, 744 (Miss.1996).

Dr. Touchstone contends that Monna's behavior during visitation exchanges, coupled with her inferences that he had sexually abused the child, constitute a change in circumstances adversely affecting Wesley and warranting a change in custody. He further asserts that after he was granted extended visitation privileges, Monna quit her job and moved with Wesley to Fort Lauderdale, Florida without first notifying him. He also states in his brief that he "is again in court trying to get telephone contact and visitation with his child." There is no evidence in the record of these developments nor has this Court been advised of any further proceedings in the chancery court. We consider only those matters that actually appear in the record and will not rely on mere assertions in briefs. American Fire Protection, Inc. v. Lewis, 653 So.2d 1387, 1390 (Miss.1995). Moreover, we will not hold the trial court in error for matters not placed before it. Touart v. Johnston, 656 So.2d 318, 321 (Miss.1995).

Looking first at Dr. Touchstone's assertion that his former wife's interference with visitation privileges amounts to a change in circumstances, we note that the testimony at the hearing focused on a handful of truly nasty incidents between the Touchstones, all of which happened to take place when young Wesley was being picked up or delivered by his father. As the chancellor astutely observed in his written finding of facts, "the parties commenced a vendetta between themselves" and "[t]he proof shows immediately following subsequent to the divorce, both parties vented their ire and frustration at the other and neither is blameless." From the record, it appears that the incidents complained of are more the result of the parties' animosity toward each other rather than a reflection of either's fitness as parents.

Dr. Touchstone bases his assertion that Monna's interference with visitation rights warrants a change in custody on Ash v. Ash, 622 So.2d 1264 (Miss.1993). In that case, however, the mother's continued refusal to comply with custody and visitation arrangements pursuant to the divorce decree had resulted in "a dispute which two prior chancellors and six attorneys, in more than ten (10) court proceedings, tackled and could not settle." Ash, 622 So.2d at 1266. This Court noted that the chancellor's decision to change custody to the father was correct in light of this "difficult" case, but that "this case should not be considered as establishing precedent for the taking of such drastic action in...