324 So.3d 327
Miss. Ct. App.2021Background
- David and Mary Carter divorced after having children; the chancery court previously granted joint legal and physical custody and allowed David weekend visitation every weekend.
- Mary filed to modify custody, alleging David threatened her and allowed the children to roam and stay out late; David responded with multiple motions (including two Rule 12(b) motions and a contempt motion) and extensive interrogatories, many on collateral topics.
- A guardian ad litem (GAL) was appointed; a virtual hearing was held where the court limited introduction of interrogatory answers as irrelevant, heard testimony (including allegations David threatened to “shoot up” a school), and considered motions on the record.
- The GAL recommended continued weekly visitation conditioned on counseling and suggested supervised visits until counseling completion; the chancery court later reduced David’s visitation from four weekends per month to two and ordered the GAL fee split 50/50.
- David appealed, claiming evidentiary exclusion of interrogatories, exclusion of his motion/brief, mischaracterization of witness testimony, denial of self-representation, and error in apportioning GAL fees; the Court of Appeals affirmed, rejecting the arguments and noting deficiencies in David’s appellate brief.
Issues
| Issue | Carter's Argument | Mary’s/Chancery Argument | Held |
|---|---|---|---|
| Exclusion of interrogatory answers at hearing | Court improperly disallowed consideration of many interrogatory answers | Court limited evidence to matters relevant to custody/modification; many interrogatories lacked probative value | Court upheld exclusion as nonrelevant under MRE 401; no abuse of discretion |
| Motion to dismiss / brief excluded from record | Clerk/chancery court excluded his Rule 12(b) motion and attached divorce decree from consideration | Court addressed David’s motions on the record and declined to consider divorce decree because it was irrelevant to custody modification | No error—motions were heard; divorce decree not pertinent to modification |
| Alleged misstatement about son voluntarily leaving home | Court misstated Alonzo’s testimony about being forced out, causing prejudice | Court had struck irrelevant testimony and treated the factor as neutral | No reversible error; statement immaterial and did not affect Albright factor outcome |
| Right to self-representation | Court or prior judge prevented him from self-representing | Current judge allowed David to proceed pro se; prior recusal involved different judge | No merit—constitutional right to self-representation recognized and exercised here |
| Allocation of GAL fees | Fee split ignored David’s limited income (SSI) and he was non-prevailing | Chancellors have discretion; guardian fees treated as court costs and can be apportioned; David requested the hearing | Fee split affirmed—court acted within discretion and David was non-prevailing/requestor of hearing |
Key Cases Cited
- Gateley v. Gateley, 158 So. 3d 296 (Miss. 2015) (standard of review in custody modifications)
- Lenard v. State, 812 So. 2d 1097 (Miss. Ct. App. 2001) (appellate briefs must support issues with reasons and authorities)
- Hughes v. State, 735 So. 2d 238 (Miss. 1999) (rule favoring admission where evidence has probative value)
- Shows v. Cross, 238 So. 3d 1224 (Miss. Ct. App. 2018) (chancellor discretion in allocating GAL fees; GAL fees as court costs)
- Latham v. Latham, 261 So. 3d 1110 (Miss. 2019) (procedure for seeking appellate attorney’s fees)
- Albright v. Albright, 437 So. 2d 1003 (Miss. 1983) (factors for child custody determination)
- Branch v. State, 347 So. 2d 957 (Miss. 1977) (presumption of correctness for trial court judgments)
- Pate v. State, 419 So. 2d 1324 (Miss. 1982) (appellate briefing requirements)
- Carter v. Carter, 304 So. 3d 1160 (Miss. Ct. App. 2020) (background note on prior domestic protection order and concerns about David’s parenting)