Candice Rae Shurden Ballard v. Joe Marshall Ballard
255 So. 3d 126
| Miss. | 2017Background
- Candice and Marshall Ballard divorced after a turbulent marriage; three minor children were at issue (one child not biologically Marshall's). Chancery court appointed a guardian ad litem (GAL) who produced three reports based on interviews and testified at trial.
- Trial court found both parents unfit, applied the statutory family-violence presumption, declined to perform an on-the-record Albright best-interest analysis, awarded custody to DHS with placement at Marshall's parents' home, divided marital property 50/50, and denied Candice attorney’s fees.
- Candice appealed, arguing the chancery court relied on inadmissible hearsay from the GAL to find her unfit and trigger the family-violence presumption; that the court failed to make Ferguson factor findings for property division; that she should have attorney’s fees because her parents paid her counsel; and that the court failed to address disposition of the lot where the marital home stood.
- The GAL had recommended joint legal custody and stated the family-violence presumption did not apply; most allegations of parental violence in the record derived from third-party interviews in the GAL reports rather than live witnesses.
- The chancery court also placed an equitable lien on potential insurance proceeds from the burned marital home to pay fees and split any remainder; it did not address title/disposition of the lot itself.
Issues
| Issue | Plaintiff's Argument (Ballard) | Defendant's Argument (Marshall) | Held |
|---|---|---|---|
| Whether court erred by relying on GAL hearsay to find Candice unfit and trigger family-violence presumption | GAL testimony/reports were inadmissible hearsay and the only substantive proof of Candice's unfitness; court should not have credited it | Court historically admits GAL hearsay; substantial evidence supported findings | Reversed as to custody — chancery court erred to rely on GAL hearsay as substantive evidence; remanded; Albright analysis required if presumption found on remand |
| Whether chancery court made adequate Ferguson findings for equitable property division | Court failed to make on-the-record Ferguson factor findings or state inapplicability | Trial court noted equal contribution and split 50/50; claimed lack of evidence on other factors | Reversed and remanded — Ferguson factors must be considered on the record or inapplicability stated |
| Whether Candice was entitled to attorney’s fees because her parents paid counsel and she must repay them | Unrebutted testimony shows she must repay parents; precedent supports fee awards under such circumstances | Trial court acted within discretion; Candice said she could repay and had possible insurance proceeds | Affirmed — trial court did not abuse discretion in denying fees given facts (she can repay; possible other funds) |
| Whether court failed to decree disposition of lot after house burned | Lot was marital property and must be classified/divided | Trial court accounted for insurance proceeds but not the lot | Remanded — chancery court must account for and distribute the lot on remand |
Key Cases Cited
- Ferguson v. Ferguson, 639 So. 2d 921 (Miss. 1994) (sets eight-factor test for equitable division of marital property)
- Albright v. Albright, 437 So. 2d 1003 (Miss. 1983) (framework for child custody best-interest analysis)
- McDonald v. McDonald, 39 So. 3d 868 (Miss. 2010) (limits use of GAL hearsay as substantive evidence; evidentiary rules apply in chancery court)
- Lowrey v. Lowrey, 25 So. 3d 274 (Miss. 2009) (requires on-the-record Ferguson analysis or express finding of inapplicability)
- Armstrong v. Armstrong, 618 So. 2d 1278 (Miss. 1993) (attorney-fee awards are discretionary; fees may be required where party cannot pay and borrows from family)