Lorenz v. Strait

987 So. 2d 427, 2008 WL 2927767
CourtMississippi Supreme Court
DecidedJuly 31, 2008
Docket2007-CA-00522-SCT
StatusPublished
Cited by19 cases

This text of 987 So. 2d 427 (Lorenz v. Strait) is published on Counsel Stack Legal Research, covering Mississippi Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Lorenz v. Strait, 987 So. 2d 427, 2008 WL 2927767 (Mich. 2008).

Opinion

987 So.2d 427 (2008)

Kristy (Strait) LORENZ
v.
Travis STRAIT.

No. 2007-CA-00522-SCT.

Supreme Court of Mississippi.

July 31, 2008.

*428 J. Douglas Ford, attorney for appellant.

J. Tyson Graham, Columbus, attorney for appellee.

Before SMITH, C.J., EASLEY and LAMAR, JJ.

EASLEY, Justice, for the Court.

¶ 1. Kristy and Travis Strait were married in 2003 and divorced in 2005. Pursuant to the divorce decree, the parties agreed to joint legal custody of their *429 daughter, born in May 2002. Travis was given primary physical custody, subject to Kristy's visitation rights, along with her agreement to assist Travis with child support.

¶ 2. On January 27, 2006, Kristy married Aaron Lorenz. Four days later, Kristy sued Travis to change custody of their three-year-old daughter to her, moving that her circumstances had changed for the better, and therefore, she was entitled to physical custody of the daughter. The chancery court entered an order on April 11, 2006, denying Kristy's request.

¶ 3. Eleven days following the ruling, Kristy and Aaron traveled to the Norfolk Naval Base, Virginia, where Travis was stationed, to visit the daughter. Kristy and Aaron testified that, shortly after picking her up, they noticed bite marks and scratches on her arm. Aaron, a sergeant in the United States Air Force and a part-time police officer for the Columbus Police Department, suggested that the bite marks be documented at the emergency room; the two then took the daughter to a local hospital in Norfolk.

¶ 4. At the hospital, while Aaron was looking for the emergency room, Kristy took the daughter to use the restroom. Kristy testified that while in the restroom her daughter told her that her "pee pee" hurt, and that her daddy had rubbed it with his hand. Kristy reported the conversation to Aaron, who suggested that the emergency room personnel be advised. The hospital staff contacted the police and Child Protective Services with the Department of Human Services for the City of Norfolk. (DHS-Virginia). An emergency order was entered in Virginia giving Kristy temporary custody for ninety days pending further investigation. An advocacy hearing was held shortly thereafter in Virginia but was subsequently dismissed for lack of jurisdiction. During that period, the United States Navy, as a matter of policy, issued a no-contact order requiring Travis have no contact with his daughter until an investigation was conducted. Travis was never arrested, nor was he charged with any type of abuse of his daughter.

¶ 5. In late June 2006, pursuant to DHS-Virginia's recommendation, Kristy found a social worker in Mississippi to meet with her daughter. Teresa Hubbard, a licensed social worker working in private practice in Columbus, met with the daughter on three occasions, at the conclusion of which she reported her findings to DHS-Virginia. She did not report to the Department of Human Services (DHS) in Mississippi. During this period, Kristy also took the daughter to a child-advocacy center in Tupelo where multiple child therapists conducted forensic interviews with the daughter.

¶ 6. On August 22, 2006, Kristy filed another petition in Lowndes County, Mississippi, to modify the final decree, seeking physical custody, alleging that Travis had allowed his minor child to be sexually and physically abused while in his custody, and requesting an emergency temporary custody order. The court issued an order the next day awarding temporary custody to Kristy.

¶ 7. On October 18, 2006, Kristy and Travis, through their respective attorneys, entered into an Agreed Temporary Custody Order, leaving temporary custody with Kristy until a trial could be held on the merits.[1] A guardian ad litem (GAL) was *430 appointed thereafter by the court to represent the minor child.

¶ 8. Shortly before trial, DHS-Virginia notified Travis that the agency had concluded its investigation and had determined the abuse allegations against him to be unfounded. At the time of trial, the Navy's no-contact order was still in effect pending upper-level review; however, the Navy Criminal Investigative Service (NCIS) had closed its investigation with a similar finding to that of DHS-Virginia.

¶ 9. During trial, the chancellor heard testimony from the following parties and witnesses in respective order: Kristy Lorenz, the daughter's mother; Teresa Hubbard, the social worker; Aaron Lorenz, Kristy's current husband; Travis Strait, the daughter's father; Debbie Hickey, Travis's mother; and Nancy Stuart, the GAL. None of the child therapists from the child-advocacy center in Tupelo testified.

¶ 10. Following trial on February 26, 2007, the Chancery Court for Lowndes County entered judgment in this matter. The court dismissed with prejudice Kristy's petition to modify the final decree, and ordered that custody of the daughter immediately be returned to Travis or, in the event he was still under a no-contact order from the United States Navy, custody was to be placed with Travis's mother.

¶ 11. Kristy filed a motion to reconsider, which was overruled by the chancery court. Feeling aggrieved, Kristy seeks review by this Court of the chancellor's decision denying the request for custody modification of the final decree.

DISCUSSION

¶ 12. The standard of review in child custody cases is limited. This Court will not reverse a chancellor's decision when supported by substantial evidence unless the chancellor either abused his discretion or based the decision on manifest factual or legal error. Settle v. Galloway, 682 So.2d 1032, 1033 (Miss.1996). Credibility and weight of the evidence are for the chancellor to conclude. Chamblee v. Chamblee, 637 So.2d 850, 860 (Miss.1994).

I. WHETHER THE CHANCERY COURT WAS MANIFESTLY IN ERROR IN ITS FINDINGS OF FACT SUPPORTING ITS RULING THAT A MATERIAL CHANGE IN CIRCUMSTANCES HAD NOT OCCURRED.

¶ 13. In a custody modification proceeding, the moving party must first prove by a preponderance of the evidence that, since the entry of the judgment or decree sought to be modified, there has been a material change in circumstances which adversely affects the welfare of the child. Pace v. Owens, 511 So.2d 489, 490 (Miss.1987). If such an adverse change is shown, the moving party must then show by like evidence that the best interest of the child requires the change of custody. Id. (citing Tucker v. Tucker, 453 So.2d 1294, 1297 (Miss.1984)); see Albright v. Albright, 437 So.2d 1003, 1005 (Miss.1983) (the polestar consideration in a child custody case is the best interest of the child).

¶ 14. When allegations of abuse or neglect are made in a custody case, the courts are required by statute to appoint a guardian to represent the interests of the child. Floyd v. Floyd, 949 So.2d 26, 28 (Miss.2007). The court is not bound by the guardian's recommendations, but the court's findings must include its reasons for rejecting the recommendations. S.N.C. v. J.H.D., 755 So.2d 1077, 1082 (Miss.2000) (chancellors must include at least a summary review of the qualifications and recommendations of the guardian ad litem in the court's findings of fact and conclusions of law).

*431 ¶ 15. In the case sub judice, Kristy claims that the findings of fact made by the chancellor are manifestly in error.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Randi Lynn Butler v. Joseph Parker Mozingo
Court of Appeals of Mississippi, 2019
Monica Ashbrook Darby v. Harold Combs
229 So. 3d 136 (Court of Appeals of Mississippi, 2016)
Rachel Smith v. David Smith
206 So. 3d 502 (Mississippi Supreme Court, 2016)
Lauren Byrd Phillips Gateley v. Clayton Harrell Gateley
158 So. 3d 296 (Mississippi Supreme Court, 2015)
Travis Strait v. Kristy Lorenz
155 So. 3d 197 (Court of Appeals of Mississippi, 2015)
James Wilson v. Pearlean Davis
181 So. 3d 1011 (Court of Appeals of Mississippi, 2014)
Darnell v. Darnell
167 So. 3d 195 (Mississippi Supreme Court, 2014)
J.S.W. v. A.W.R.
152 So. 3d 336 (Court of Appeals of Mississippi, 2013)
Wilson v. Davis
111 So. 3d 1280 (Court of Appeals of Mississippi, 2013)
Hamilton v. Houston
100 So. 3d 1005 (Court of Appeals of Mississippi, 2012)
Davis v. Stevens
85 So. 3d 943 (Court of Appeals of Mississippi, 2012)
McCarty v. McCarty
52 So. 3d 1221 (Court of Appeals of Mississippi, 2011)
Adams v. Johnson
33 So. 3d 551 (Court of Appeals of Mississippi, 2010)
Jenkins v. Oswald
3 So. 3d 746 (Mississippi Supreme Court, 2009)

Cite This Page — Counsel Stack

Bluebook (online)
987 So. 2d 427, 2008 WL 2927767, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lorenz-v-strait-miss-2008.