R.L.S. v. A.R.S.

807 So. 2d 1251, 2001 Miss. App. LEXIS 194, 2001 WL 508363
CourtCourt of Appeals of Mississippi
DecidedMay 15, 2001
DocketNo. 1999-CA-02062-COA
StatusPublished
Cited by2 cases

This text of 807 So. 2d 1251 (R.L.S. v. A.R.S.) 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
R.L.S. v. A.R.S., 807 So. 2d 1251, 2001 Miss. App. LEXIS 194, 2001 WL 508363 (Mich. Ct. App. 2001).

Opinion

THOMAS, J.,

for the Court:

¶ 1. R.L.S., the natural father, appeals the lower court’s denial of custody modification which preserved custody of the child, D.K.S., with A.R.S., the natural mother.

I. THE CHANCELLOR MANIFESTLY ERRED BY DENYING CUSTODY MODIFICATION CONTRARY TO THE OVERWHELMING WEIGHT'OF THE EVIDENCE.

Finding error, we reverse and render. Although this case was filed with the full name of the parents and child involved stated, in deference to the child involved and the facts of this case, we have chosen to use the initials of the parents and the child.

FACTS

¶ 2. A.R.S. and R.L.S. were divorced on September 16, 1996 on the grounds of irreconcilable differences. Their marriage produced one child, D.K.S., who was born on January 31, 1990. A.R.S. and R.L.S. were awarded joint legal custody of their daughter, and the mother, A.R.S., was awarded primary physical custody. The father, R.L.S. was awarded regular visitation rights which included every other weekend and alternate holidays.

¶ 3. After the divorce, R.L.S. remarried. He is gainfully employed and owns a house in Byram, where he lives with-M.S., his new wife and his fourteen year old stepdaughter, M.S.’s child from a prior marriage. A.R.S. has remained single and resides in an apartment complex in Vicksburg with D.K.S.

¶ 4. On September 13, 1999, R.L.S. filed a motion to modify custody of D.K.S., based on a material and substantial change in circumstances adverse to the best interests and welfare of the child. Hearings were held on September 24 and October 1, 1999 before Chancellor V.R. Barnes of Warren County.

. ¶5. Due to the nature of the case at hand, the remainder of the facts are pre[1253]*1253sented in the order of testimony in the lower court proceeding.

THE TESTIMONY OF D.K.S.

¶ 6. R.L.S. began the case with the direct testimony of D.K.S. Testimony was conducted in chambers due to the private nature of the testimony and the tender age of the witness. At the time of the testimony she was nine years old and in the fourth grade. The child conveyed a thorough understanding of the importance to tell the truth and showed a propensity to do just that.

¶ 7. D.K.S. explained that on the night of August 26, 1999, Eddie Sorey “was messing around with my body.” She testified that Mr. Sorey touched her on her “private parts” and had her touch his also. She stated that Mr. Sorey had been drinking “Vodka with diet coke.” She stated that this occurred while she and her mother were sleeping in the same bed that Mr. Sorey was lying in, watching T.V. She stated that Mr. Sorey would often recline in the same bed and watch T.V. The child sleeps with A.R.S. regularly because her room is too crowded with toys and such.

¶ 8. The next morning, while Mr. Sorey was taking a shower, D.K.S. told A.R.S. what had happened. Before Mr. Sorey was out of the shower A.R.S. told him they were going to work, and she brought the child to Mr. and Mrs. Way’s house. Mrs. Way is A.R.S.’s sister. After telling Mr. Way, who is an attorney, about what had happened, A.R.S. went back to her apartment and told Mr. Sorey to leave.

¶ 9. D.K.S. explained that Mr. Sorey had touched her twice before. Unlike the third molestation, these incidents took place in hotels in Vicksburg, the Ridgeland Inn and Fairfield. The child testified that she enjoyed going with her mother and Mr. So-rey to hotels often because she could swim and have fun. The hotel rooms had two beds, and she would watch T.V. with Mr. Sorey in one bed, while her mother slept in the other. It was in such situations that Mr. Sorey would touch her. Mr. Sorey had been drinking alcohol on these occasions as well. D.K.S. did not tell her mom about the first two times Mr. Sorey touched her until August 27, 1999, when she informed A.R.S. of all three incidents.

¶ 10. On another occasion, A.R.S. told D.K.S., who was taking a bath, that Mr. Sorey was coming in to use the bathroom. After this happened the child told her mother that she did not want Mr. Sorey to come into the bathroom while she was bathing because it made her feel uncomfortable. However, the child recalled that her mother allowed Mr. Sorey to use the bathroom while the child was bathing a second time on a later date.

¶ 11. On Friday, August 27, 1999, the day after the third molestation, R.L.S. picked D.K.S. up for the scheduled visitation weekend. The child had gone home early from school due to a stomachache and headache she had been suffering from throughout the day. During the drive from Vicksburg to Byram, D.K.S. told her father that she had a big secret but would not tell.

¶ 12. D.K.S. refused to eat dinner that night, and asked to make a phone call to her mother, A.R.S. She asked her mother if she could tell her father about the secret. D.K.S. testified that her mother told her “no, not yet [D.K.S.].” The child explained that her mother asked her to keep a secret from her father. She stated that her mother told her, “Don’t tell your dad right yet, because we’ll tell him later on.” However, she wanted to tell her dad because “he needed to know too.” D.K.S. explained that her mother told her that if she told her dad the secret, “he might go and try to find him and try to hurt him [Mr. Sorey].” D.K.S. was scared that she would get in trouble with her mother if she told her father the secret.

[1254]*1254¶ 13. However, after talking on the phone with her mother, D.K.S. told M.S., her stepmother, that she could only say six words, but nothing else. At that time D.K.S. stated that “Eddie has been searching my body.” D.K.S. explained that she did not keep her secret because “it was bothering me a lot,” and she trusted her father and M.S. When A.R.S. found out that R.L.S. knew about the molestation incidents, the child felt that her mother was mad at her and wept when A.R.S. discussed the matter with her.

¶ 14. D.K.S. met with her school counselor, Ms. Cathy Lee, and her father on the Tuesday following the third molestation. D.K.S. then met with Ms. Clarissa, a counselor from the Department of Human Services (“DHS”) on two different occasions until A.R.S. told her not to speak with anyone from DHS anymore. The child also recalled talking with Ms. Jenene Head about the matter, as well as a counselor in Jackson, whose name she could not remember.

THE TESTIMONY OF A.R.S.

¶ 15. A.R.S. testified that while she and Eddie Sorey had dated in the past, they had not been dating for a year and a half and have “remained good friends.” While they were only friends, A.R.S. and D.K.S. would spend the night in her apartment and hotels with Mr. Sorey on several occasions.

¶ 16. A.R.S. recalled that she and D.K.S. had visited Mr. Sorey at the Fair-field Inn and the Ridgeland Inn during the summer of 1999. She explained that the child enjoyed going to the hotels because she could swim and they would order pizza and watch T.V. However, A.R.S. claimed that the three of them never slept in the same bed together. When asked about the sleeping arrangement on the night of the third molestation, the following testimony occurred:

A. No. [D.K.S.] and I were in my bed, and he [Mr. Sorey] was in a chair sitting by the bed watching TV with us.
Q. Well, if he [Mr. Sorey] was sitting in the. chair — my understanding was that [D.K.S.] said he was in the bed with you?
A. She was incorrect that time.

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Bluebook (online)
807 So. 2d 1251, 2001 Miss. App. LEXIS 194, 2001 WL 508363, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rls-v-ars-missctapp-2001.