Stark v. Anderson

748 So. 2d 838, 1999 WL 619569
CourtCourt of Appeals of Mississippi
DecidedAugust 17, 1999
Docket98-CA-00117-COA
StatusPublished
Cited by10 cases

This text of 748 So. 2d 838 (Stark v. Anderson) 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
Stark v. Anderson, 748 So. 2d 838, 1999 WL 619569 (Mich. Ct. App. 1999).

Opinion

748 So.2d 838 (1999)

Wendy Lee Werner Atkins Anderson STARK, Appellant,
v.
David Michael ANDERSON, Appellee.

No. 98-CA-00117-COA.

Court of Appeals of Mississippi.

August 17, 1999.

*839 M. Channing Powell, Gulfport, Attorney for Appellant.

William T. Reed, Pascagoula, Attorney for Appellee.

BEFORE SOUTHWICK, P.J., BRIDGES, AND IRVING, JJ.

BRIDGES, J., for the Court:

¶ 1. Wendy Lee Werner Atkins Stark (Wendy) appeals from a judgment of the Chancery Court of Jackson County modifying a child custody decree. David Michael Anderson (David) asked the court to modify the existing custody arrangement between him and his ex-wife, Wendy, who had been granted custody of the minor child in the judgment of divorce. The court granted David's petition for modification of the final judgment of divorce, and Wendy appeals arguing that the chancery court committed manifest error by (1) accepting the proposed findings of fact and conclusions of law prepared by David's counsel, (2) finding that substantial material changes in circumstances adverse to the *840 child had occurred since the final judgment of divorce, (3) finding that under the totality of the circumstances, the best interest of the child would be served by transferring custody from the mother to the father, and (4) awarding custody to David which would split the residency of the two siblings living in Wendy's home. Finding no errors in the proceedings below, we affirm.

FACTS

¶ 2. David and Wendy were married on December 6, 1991. They had one child, David Michael Anderson, II (Davey). Subsequently, the parties divorced on April 21, 1994, by order of the Chancery Court of Jackson County, Mississippi. The divorce was obtained on the ground of irreconcilable differences, and the parties agreed to the terms of a separation and property settlement agreement which was incorporated into the final judgment. The judgment specified that Wendy would have custody of the six month old child, with reasonable visitation rights in favor of David. Additionally, David was ordered to pay fourteen percent of his adjusted gross income per week in child support. Subsequent to the dissolution of their marriage, both parties remarried: Wendy married Brian Stark on May 20, 1994 and David married Lisa on June 24, 1995.

¶ 3. On July 29, 1997, David filed a petition for modification of the final judgment seeking permanent custody of the child. David's basis for his motion to modify custody was that substantial and material changes had occurred because Wendy had neglected some of the child's needs and had failed to provide a stable environment for the child. On August 26, 1997, Wendy filed her answer denying the allegations in David's petition, and filed a counter-complaint[1] seeking modification of the final judgment of divorce. Wendy argued that substantial and material circumstances had arisen requiring an increase in the amount of child support paid by David as provided in the final judgment of divorce. A trial was held on August 26, 1997, and the chancellor ordered each attorney to submit a proposed judgment to the court within seven days. Counsel for Wendy filed a proposed judgment, and counsel for David filed proposed findings of fact and conclusions of law. On November 12, 1997, the chancellor adopted the findings of fact and conclusions of law in total as submitted by David's counsel. The chancery court then entered a judgment modifying the custody provisions of the prior judgment of divorce and awarded David custody of Davey. Aggrieved by the chancellor's decision, Wendy has perfected this appeal.

STANDARD OF REVIEW

¶ 4. The standard of review applied by this State in domestic relations matters is abundantly clear. This Court will not disturb the chancellor's findings unless the chancellor was manifestly wrong, the court abused its discretion, or the court applied an erroneous legal standard. Sandlin v. Sandlin, 699 So.2d 1198, 1203 (Miss.1997). Thus, on appeal, this Court will uphold the chancellor's findings of fact that are not manifestly wrong and are supported by substantial, credible evidence. Sarver v. Sarver, 687 So.2d 749, 753 (Miss.1997) (citing Pittman v. Pittman, 652 So.2d 1105, 1108 (Miss.1995)).

ARGUMENT AND DISCUSSION OF LAW
I. THE CHANCERY COURT ERRED IN ACCEPTING PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW FROM APPELLEE'S COUNSEL WHEN HE ORDERED THAT COUNSEL FOR BOTH SIDES SUBMIT A PROPOSED JUDGMENT FOR HIS INSPECTION.
II. THE CHANCERY COURT ERRED BY ACCEPTING IN ITS *841 COMPLETE FORM THE PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW PREPARED BY APPELLEE'S COUNSEL.

¶ 5. Since these issues both deal with the proposed findings of fact and conclusions of law, we will discuss them together.

¶ 6. Wendy maintains that the chancellor erred when he ordered both attorneys to provide a proposed judgment, and then adopted verbatim the findings of fact and conclusions of law submitted by David's counsel. Wendy argues that this Court should not give deference to the findings of fact and conclusions of law which are not supported by substantial evidence and should instead review the record de novo. After reviewing the record and the findings of fact and conclusions of law adopted by the chancellor, we cannot say that he manifestly erred in his decision. The Mississippi Supreme Court has consistently held that a trial court can adopt verbatim, in whole or part, the findings of fact and conclusions of law submitted by a party. Chamblee v. Chamblee, 637 So.2d 850, 858 (Miss.1994), Omnibank v. United Southern Bank, 607 So.2d 76, 83 (Miss.1992), Rice Researchers, Inc. v. Hiter, 512 So.2d 1259, 1265 (Miss.1987). The Mississippi Rules of Civil Procedure addresses findings by the court in Rule 52 and provides the following:

In all actions tried upon the facts without a jury the court may, and shall upon the request of any party to the suit or when required by these rules, find the facts specially and state separately its conclusions of law thereon and judgment shall be entered accordingly.

M.R.C.P. 52. As noted in Rice Researchers, Inc., "[t]he rule mentions nothing about the method that the chancellor should employ in achieving these objectives." Rice Researchers, Inc., 512 So.2d at 1265. The appellant contends that the chancellor erred by adopting verbatim the findings of fact and conclusions of law provided by the appellee. However, the Mississippi Supreme Court held in Rice Researchers, Inc., that "the matter of whether a trial court may adopt verbatim, in whole or part, the findings of fact and conclusions of law of a party is within the court's sound discretion." Id. In the case sub judice, the chancery court properly requested each party to submit a proposed judgment. After considering these submissions, the chancellor adopted the appellee's proposed findings of fact and conclusions of law. The chancellor acted within his authority. Id. However, the Mississippi Supreme Court has held that,

[w]hile an appellate court may not summarily disregard findings adopted by a trial judge verbatim from the submission of the prevailing party, the appellate court must view the challenged findings of fact and the appellate record as a whole with a more critical eye to ensure that the trial court has adequately performed its judicial function.

Id. This is not a de novo review as the appellant suggests.

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Cite This Page — Counsel Stack

Bluebook (online)
748 So. 2d 838, 1999 WL 619569, Counsel Stack Legal Research, https://law.counselstack.com/opinion/stark-v-anderson-missctapp-1999.