281 So.3d 216
Miss. Ct. App.2019Background
- Joni Warner and Larry Thomas, unmarried parents of minor L.J., were awarded joint legal and physical custody with alternate-week physical custody in a January 26, 2017 final decree; neither party appealed that decree.
- On April 2, 2017, an altercation at a YMCA basketball game occurred; Warner alleges Thomas slapped the child and attempted to assault her; Thomas disputes the account and denies striking the child.
- Warner obtained an ex parte emergency domestic-abuse protective order (later extended through June 14, 2017) based on the April incident; no counseling or anger-management was ordered and no impartial witnesses to the incident testified at the modification hearing.
- Warner filed a Petition for Modification (April 18, 2017) seeking sole custody, alleging a material change in circumstances and that L.J. feared his father; Thomas denied the allegations.
- At the August 13, 2017 hearing both parents and family members testified with sharply conflicting accounts and partisan testimony about the child’s emotional/behavioral changes; the chancery court found no material change adversely affecting the child and denied modification.
- Warner’s motions to reconsider and for a new trial (claiming the statutory presumption against a parent with a history of family violence and newly discovered witnesses) were denied; the trial court found no history of perpetrating family violence and that Warner failed to show newly discoverable, substantive evidence.
Issues
| Issue | Plaintiff's Argument (Warner) | Defendant's Argument (Thomas) | Held |
|---|---|---|---|
| Whether the chancery court erred in denying modification of joint custody | The April 2 incident and ensuing inability of parents to cooperate constitute a material change adversely affecting L.J., warranting sole custody to Warner | The incident is disputed, no material change shown, and the court’s credibility determinations support continuing joint custody | Court affirmed denial: no material change proven; chancellor’s factual findings not manifestly wrong |
| Whether a statutory rebuttable presumption against joint custody was triggered under Miss. Code Ann. § 93-5-24(9) | The protective order and past testimony establish a history of perpetrating family violence, triggering the presumption against joint custody | The incident was isolated, produced no serious bodily injury, and does not establish a pattern or history of family violence | Court affirmed: no history of perpetrating family violence found; presumption not triggered |
| Whether trial court erred by not considering prior (pre-decree) conduct to support modification | Pre- and post-decree conduct together show ongoing risk and justify considering earlier testimony | Pre-decree conduct is subject to res judicata and cannot be used unless tied to post-decree conduct | Court affirmed: pre-decree findings are final; only post-decree changes can justify modification and no link shown |
| Whether the trial court abused discretion in denying motion for reconsideration / new trial based on newly located witness | Warner claimed she found an impartial witness and persistent harassment, warranting a new trial or reconsideration | Thomas argued Warner failed to show why evidence was not discovered earlier and offered no specifics about the new witness or testimony | Court affirmed denial: Warner didn’t show newly discoverable evidence by due diligence or identify witness/content; no abuse of discretion |
Key Cases Cited
- J.P. v. S.V.B., 987 So. 2d 975 (Miss. 2008) (standard for reversing chancellor’s custody determinations)
- Lucas v. Hendrix, 92 So. 3d 699 (Miss. Ct. App. 2012) (appellate review and deference to chancellor’s findings)
- Hensarling v. Hensarling, 824 So. 2d 583 (Miss. 2002) (best interest of the child as polestar consideration)
- Marter v. Marter, 914 So. 2d 743 (Miss. 2005) (procedure for modification: identify material change then apply Albright)
- McDonald v. McDonald, 39 So. 3d 868 (Miss. 2010) (look to overall circumstances in which child lives to determine material change)
- Tidmore v. Tidmore, 114 So. 3d 753 (Miss. Ct. App. 2013) (parental inability to cooperate over time can be detrimental and justify modification)
- Martin v. Stevenson, 139 So. 3d 740 (Miss. Ct. App. 2014) (limits on using pre-decree conduct in modification proceedings absent a link to post-decree conduct)
- Lackey v. Fuller, 755 So. 2d 1083 (Miss. 2000) (res judicata principles and pre-decree conduct in custody matters)
- Brumfield v. Brumfield, 49 So. 3d 138 (Miss. Ct. App. 2010) (single incident without serious bodily injury does not meet statute’s definition of history of perpetrating family violence)
- Albright v. Albright, 437 So. 2d 1003 (Miss. 1983) (factors to determine child custody)