Gilliland v. Gilliland

969 So. 2d 56, 2007 WL 968912
CourtCourt of Appeals of Mississippi
DecidedApril 3, 2007
Docket2005-CA-01568-COA
StatusPublished
Cited by11 cases

This text of 969 So. 2d 56 (Gilliland v. Gilliland) is published on Counsel Stack Legal Research, covering Court of Appeals of Mississippi primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gilliland v. Gilliland, 969 So. 2d 56, 2007 WL 968912 (Mich. Ct. App. 2007).

Opinion

969 So.2d 56 (2007)

Kim Lashan GILLILAND, Appellant
v.
Roger Neal GILLILAND, Appellee.

No. 2005-CA-01568-COA.

Court of Appeals of Mississippi.

April 3, 2007.
Rehearing Denied August 21, 2007.

*60 William Matthew Thompson, Lee Ann Self Turner, Mark A. Chinn, Jackson, attorneys for appellant.

Richard C. Roberts, Jackson, David Bridges, attorneys for appellee.

Before MYERS, P.J., CHANDLER and ROBERTS, JJ.

CHANDLER, J., for the Court.

¶ 1. On July 22, 2005, the Chancery Court of Oktibbeha County entered a final judgment granting Kim Lashan Gilliland and Roger Neal Gilliland an irreconcilable differences divorce. The chancellor granted primary custody of the parties' two children to Roger. Kim appeals, arguing that (1) the chancellor should have disregarded the report of the guardian ad litem, (2) the chancellor manifestly erred in his consideration and application of the Albright factors in determining custody, and (3) the chancellor's visitation award was manifestly erroneous.

FACTS AND PROCEDURAL HISTORY

¶ 2. Roger and Kim were married on November 9, 1997. Two children were born of the marriage, Shawn Neal Gilliland, born on January 28, 1998, and Brandon Reed Gilliland, born on May 7, 2000. The Gilliland family lived in Starkville. Roger co-owned and managed his family's grocery store in the nearby town of Ackerman and Kim was employed as a nurse anesthetist at a local hospital.

¶ 3. On January 17, 2002, Kim filed a complaint for divorce on the ground of cruel and inhuman treatment or, alternatively, irreconcilable differences. Kim demanded possession of the marital home and its contents, temporary and permanent alimony, equitable distribution of the marital assets, and custody of the children. On the same day, Kim also requested temporary relief. However, Kim waited over six months before requesting a hearing on the motion. On August 26, 2003, the chancellor denied relief because of the passage of time and because the evidence before the court showed the parties had been living together harmoniously since the motion was filed.

¶ 4. Roger filed an answer to Kim's divorce complaint on August 22, 2003. On *61 April 29, 2004, Kim filed a second petition for temporary relief. On August 30, 2004, the court again denied temporary relief. On November 3, 2004, the chancellor entered an agreed order concerning temporary custody. The order provided that the children would remain in the marital home and that the parents would exercise custody of the children on an alternating weekly basis and in the absence of the non-custodial parent. The court appointed a guardian ad litem (GAL) on November 8, 2004, after a domestic disturbance that led to Kim's arrest.

¶ 5. The trial occurred on December 13-14, 2004 and on July 20, 2005. At the time of the trial, Shawn and Brandon were ages six and four, respectively. The trial testimony indicated that the children had been living in a volatile environment created by both parents' behavior.

¶ 6. Kim testified that the parties' relationship began to deteriorate shortly after Shawn was born. Kim stated that Roger often became angry and verbally abusive toward her in front of the children. Kim testified that when Roger became enraged, he would call her obscene and vile names. Kim stated that Roger had occasionally become physical during his rages. Kim related incidents in which Roger kicked her, grabbed her arms and threw her out of his truck, trapped her arms in the car window, threw her to the ground, and kicked in a door. Kim submitted photographs of bruises on her arms which she testified were caused by Roger. Kim testified that during some periods Roger had an angry outburst about every other day.

¶ 7. Kim placed audio recording devices throughout the house to capture Roger's outbursts. She testified that she had made "thousands" of hours of audio recording of Roger. Kim edited the recordings and made a CD recording of several incidents which was admitted into evidence. The Court has listened to the CD, which includes several wrathful tirades by Roger in the presence of the children in which Roger belittled Kim, cursed, used obscene terminology, threatened to hurt Kim, and, in one incident, yelled at Shawn.

¶ 8. Roger testified that conditions in the home had deteriorated since Kim filed for divorce in January 2002. Roger testified that Kim intentionally provoked him to anger in front of the children in an effort to create grounds for divorce. Roger testified that Kim would harass him by hiding his car keys, checkbook, or bills, running down his car battery, or upsetting the children. Roger testified that Kim had incited each of his outbursts on the CD. Roger admitted that he had lost control during those outbursts.

¶ 9. George Beals, Kim's licensed professional counselor, testified that Kim suffers from trichotillomania, a stress disorder in which the sufferer pulls out her hair. Beals stated that the condition is related to stress and is a mild coping strategy. Beals testified that Kim's trichotillomania had been exacerbated by stress-related anxiety from living with Roger. Kim testified that her hair pulling had gotten worse since Shawn was born, and that two years ago the hair pulling started to affect her appearance. Kim stated that she has bald spots but her hair pulling had improved since her separation from Roger.

¶ 10. There was testimony about Kim's temperament and discipline of the children. Roger's mother, Gola Mae Gilliland, testified that Kim was an extremely nervous person. Gola testified that she became nervous around Kim because Kim was so nervous and anxious. Gola stated that Kim had been in the military and wanted the boys to be "her little soldiers." Gola testified that Kim was extremely harsh and impatient with the boys and beat them when they needed discipline. *62 She stated that Kim would hold a child by the arm and "just whack them" with an open hand as hard as she could. Gola related that both Roger and Kim used spanking as discipline but that only Kim lost control when she spanked. Gola testified that, when Shawn was in nursery school, Kim tried to teach him first grade lessons. Gola testified that Kim "would push that three year old . . . to try to make it perfect, perfect, perfect. And she would scream at him, and she would shake him. . . . I saw her pinching him one time. . . . And he would just scream." Gola testified that the children were nervous and hyper and that she thought the children's behavioral problems had been caused by Kim's over-discipline.

¶ 11. Roger's father, Richard Gilliland, testified that Kim screamed at the boys when they would do something wrong. Richard and Gola both testified that they witnessed Kim hitting three-year-old Brandon excessively at Shawn's baseball game. Gola stated that, at the game, Kim ran around on the ballfield correcting Shawn. When Brandon picked up a bat and started running around, Kim "tore him up." Roger testified that he had fought with Kim about Kim's pinching of the children. Kim testified that she had learned from a parenting book to pinch a muscle at the base of a child's neck as a disciplinary measure.

¶ 12. The police were summoned on three occasions to the Gilliland home on domestic disturbance calls. Officer Demetric Armstead of the Starkville Police Department testified that both Roger and Kim were arrested on December 5, 2003. He stated that, when he arrived, both Roger and Kim had marks on them and the children appeared to be scared. In an incident on October 29, 2004, Kim called the police stating that Roger was beating her. Officer Laura Hines responded.

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Cite This Page — Counsel Stack

Bluebook (online)
969 So. 2d 56, 2007 WL 968912, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gilliland-v-gilliland-missctapp-2007.