Robison v. Lanford

822 So. 2d 1034, 2002 WL 422997
CourtCourt of Appeals of Mississippi
DecidedMarch 19, 2002
Docket1999-CA-01836-COA
StatusPublished
Cited by7 cases

This text of 822 So. 2d 1034 (Robison v. Lanford) 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
Robison v. Lanford, 822 So. 2d 1034, 2002 WL 422997 (Mich. Ct. App. 2002).

Opinion

822 So.2d 1034 (2002)

Thomas Lee ROBISON, Appellant,
v.
Carol Denise Robison LANFORD, Appellee.

No. 1999-CA-01836-COA.

Court of Appeals of Mississippi.

March 19, 2002.
Rehearing Denied May 14, 2002.

*1036 Jefferson Davis Gilder, Southaven, attorney for appellant.

Kinney M. Swain, Greenville, attorney for appellee.

EN BANC.

ON MOTION FOR REHEARING

SOUTHWICK, P.J., for the Court.

¶ 1. Carol Lanford was awarded custody of her minor child as a result of proceedings that she brought to modify an earlier custody award. The father, Thomas Lee Robison, appealed. On June 26, 2001, we found reversible error because of the absence of findings on whether there had been a material change in circumstances, and insufficient evidence in the record to justify any change in custody. Before deciding whether to enter judgment for the appellant, we remanded for the chancellor to explain the manner in which the child's private conversation with her in chambers had been taken into account, as we had nothing to explain what was said or its weight. If it had been significant in the decision-making, then some record of that evidence had to be provided to us. On remand, the chancellor agreed that her conversation with the child in chambers was a significant factor in the decision to change custody, but the chancellor refused to provide any transcript or take other alternative steps to provide the evidence from the child. Because of the phrasing of the chancellor's order, we initially understood that Mr. Robison on remand had agreed that no further conversation by the chancellor with the parties' daughter should be held. Therefore we found the issue waived by the party who was alleging error.

¶ 2. On motion for rehearing, though, Mr. Robison has provided proof that he did not agree to the chancellor's refusal to conduct a hearing. Instead, by letter he informed the chancellor that he objected to another in-chambers conference unless it was on the record. Mr. Robison has moved that the record be supplemented with that letter, a motion that we grant. Thus he objected only to the chancellor's conducting of an in-chambers discussion unless it complied with our directive, namely, that in some manner a record of the conversation be made. Mr. Robison's motion for rehearing is granted, the former opinion is withdrawn, and we now reverse and remand.

FACTS

¶ 3. Thomas Lee Robison and Carol Denise Robison, now Lanford, were married in 1990. They had one child, Britney, born in 1991. In December 1992, Mr. Robison filed for divorce. It was granted on the grounds of irreconcilable differences by a decree dated March 25, 1993.

¶ 4. The divorce decree incorporated the parties' agreement to joint legal custody of the child. The agreement also provided that Mr. Robison was to have primary physical custody of the child during nine *1037 months of the year from September through May and that Mrs. Lanford was to have primary physical custody in June through August. Each party was awarded reasonable visitation rights during the period of the other's custody. Mr. Robison was to pay $150 per month child support for the three months in which Mrs. Lanford had physical custody of the child.

¶ 5. Mr. Robison filed a motion to modify custody on December 9, 1997. He sought sole custody of the child as well as child support from Mrs. Lanford. Mrs. Lanford answered the claim and filed a cross-motion seeking sole custody as well as child support from Mr. Robison. The dispute was settled by consent modification decree dated December 30, 1998. The decree left custody unchanged but clarified visitation.

¶ 6. In late March 1999, Mrs. Lanford noticed bruising on the child's buttocks. The child informed her that the bruising was a result of a spanking by her father. Mrs. Lanford took the child to a hospital emergency room where she was treated by Dr. Wheelis. The doctor noted that there were two circular bruises about six centimeters in diameter on the child's backside and diagnosed physical abuse. Mr. Robison stated that the child was spanked with a paddle because she had lied and also stolen something, and that excessive force was not used. The matter was referred to a social services agency for an investigation into possible child abuse. Although the report is not in the appellate record, the testimony showed that the investigation found the evidence to be inconclusive. No further action was taken.

¶ 7. Approximately one month later, Mrs. Lanford filed a new petition to modify the former decree and to give her sole legal and physical custody of the child. While that was pending, the chancellor granted the parties' joint motion for the Department of Human Services to conduct a detailed study of the living environment of both parents. The study concluded that either home would provide a stable environment for the child.

¶ 8. A hearing was held on July 28, 1999. The court reviewed the results of the home studies, listened to testimony of the parties, and held an in-chambers conference alone with the minor child. The court found that it would be in the best interest of the child for Mrs. Lanford to have physical custody with visitation privileges for Mr. Robison. Mr. Robison appealed.

¶ 9. In our initial consideration of the appeal, we remanded for additional development of the record. The chancellor responded to that remand order. We now decide the appeal.

DISCUSSION

1. Evidence to support change in circumstances

¶ 10. The evidence in the record is sparse to support that there was a material change in circumstances adverse to the interest of the child, or that the mother's receiving custody was in the child's best interest. Pace v. Owens, 511 So.2d 489, 490 (Miss.1987). The chancellor stated in her 1999 order that "it would be in Britney's best interest that her custody be awarded to her mother, Ms. Lanford, at this time." The chancellor did not discuss any material change in circumstances in the decree. She said that it was her "duty to weigh all of the evidence, and take it into consideration and to make a decision about where this child shall live at this point in her life." She found "that it would be in Britney's best interest that her custody be awarded to her mother, Ms. Lanford, at this time."

¶ 11. Proceedings that address a request for modification of custody should *1038 follow these steps: (1) the initial burden is on the party seeking the change to demonstrate that there has been a material change in the circumstances affecting the child; (2) if that is shown, it must also be shown that the change is detrimental to the child's welfare; and (3) finally, the chancellor must find that the change in custody is in the child's best interest. Bredemeier v. Jackson, 689 So.2d 770, 775 (Miss.1997).

¶ 12. On remand, the chancellor explained the implicit findings that she had earlier made, and gave them explicitly. The chancellor had relied in significant measure on the fact that Britney had once been bruised by her father during a spanking. That spanking, administered for lying about the taking of some candy, was found to be excessive. That "made it apparent that a parent does not know how and where to administer appropriate discipline.... Testimony of the father's drinking, temper, and inappropriate discipline were red flags to the court that the child's custody should be changed."

¶ 13. The chancellor then stated that because of these initial items of evidence, the parties gave permission for her to talk with Britney in chambers.

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Bluebook (online)
822 So. 2d 1034, 2002 WL 422997, Counsel Stack Legal Research, https://law.counselstack.com/opinion/robison-v-lanford-missctapp-2002.