Kim Stewart v. Greg Stewart, 309 So.3d 44

Background

Greg and Kim Stewart divorced in December 2015; Kim received physical custody of two daughters (Laura and Hannah) and the parties shared legal custody.
Post-divorce conflicts included a January 2016 911 call by Laura from Greg’s home, counseling ordered for the family, and disputes over visitation that led to multiple contempt motions and CPS investigations (all unsubstantiated).
The court appointed Shannon Rainey as family counselor (to interview Laura about the 911 call); Kim secretly recorded counseling sessions, prompting Rainey’s recusal and replacement by Debra Carr. Cynthia Re was later appointed guardian ad litem (GAL).
Greg filed for custody modification in July 2016, alleging Kim’s interference and that post-divorce events (including Hannah’s academic issues) constituted a material change affecting the children’s welfare.
After extensive hearings, the chancery court (Sept. 5, 2018) awarded Greg primary physical custody, found Kim in civil contempt for surreptitious recordings, assessed GAL and contempt-related attorney fees against Kim, and imposed sanctions under Miss. Code § 93-5-24(9)(c) for unfounded abuse allegations.
Kim appealed raising 28 assignments of error; the Court of Appeals affirmed the chancery court in all respects.

Issues

Issue	Plaintiff's Argument (Kim)	Defendant's Argument (Greg)	Held
Subject-matter jurisdiction over modification	Greg’s complaint failed to plead a specific post-decree material change; request for “permanent primary” custody mislabeled	Complaint pleaded specific post-decree changes (interference, school failure) sufficient; label not jurisdictional	Court: jurisdiction proper; pleadings met Rule 8 and alleged material changes with specificity.
Unclean-hands defense	Greg breached divorce order (failed to take ordered anger-management), so doctrine should bar his modification	Greg’s omission was inadvertent, not willful misconduct; court must decide custody in children’s best interest	Court: unclean-hands not triggered; not willful misconduct and cannot override child-best-interest duty.
Appointment/qualification of Rainey (court counselor)	Rainey was not properly designated or qualified as expert; her 706/702 reliability was insufficient	Rainey was appointed with parties’ agreement, consented on record, had long counseling history with family, and her testimony was admissible	Court: no error — Rule 706 procedures followed; Rainey appropriately treated as expert and her opinions were admissible and reliable.
GAL appointment and reliance on GAL report	GAL was not properly qualified as expert; GAL relied on inadmissible hearsay	GAL was appointed under Rule 706, no timely objection to qualifications; GAL may rely on hearsay per Rule 703 and relevant precedent	Court: GAL properly appointed and qualified; testimony and report admissible and supported other trial evidence.
Exclusion of Kids Hub forensic-records	Court erred excluding Kids Hub interviews (forensic interviews were relevant)	DHS/CPS already found allegations unsubstantiated; records were considered for ID and other witnesses testified	Court: exclusion not reversible; any error harmless given unsubstantiated findings and other evidence.
Custody modification (material change; Albright factors; best interests)	No sufficient post-decree material change; findings unsupported — court improperly credited certain witnesses	Evidence of repeated interference, coaching, counseling disruption, Hannah’s school problems, and other factors showed material change adverse to children; Albright applied to totality	Court: substantial credible evidence supported material-change finding; court reasonably applied Albright factors and awarded primary physical custody to Greg.
Contempt for secret recordings of counseling sessions	No explicit order forbade recording; recordings done to protect child and record truth; cannot be contempt	Recordings violated counseling order’s purpose, undermined therapeutic process, caused counselor’s recusal and thwarted court-ordered counseling	Court: contempt findings upheld — recordings violated the court’s counseling orders and interfered with process; Kim’s defenses insufficient.
Fees and sanctions under §93-5-24(9)(c) and GAL fee allocation	Kim did not personally report to CPS; cannot be sanctioned under statute; GAL-fee split unsupported	Allegations were unfounded and traceable to conduct in Kim’s custody and influence; chancellor may apportion GAL costs to non-prevailing party	Court: statutory sanctions and fee allocations supported by record; GAL-fee apportionment within chancery discretion.
Appellate attorney-fee motion (Rule 27)	N/A	Greg sought appellate fees (approx. half trial award) but failed to supply affidavits/time records	Court: denied without prejudice for failure to comply with Rule 27(a) / Latham requirements.

Key Cases Cited

Roberts v. Roberts, 110 So. 3d 820 (Miss. Ct. App. 2013) (pleading must allege post-decree material change to permit custody modification)
Rush v. Rush, 932 So. 2d 794 (Miss. 2006) (catalog of custody types under § 93-5-24)
Latham v. Latham, 261 So. 3d 1110 (Miss. 2019) (Rule 27(a) requires affidavits/time records for appellate-fee motions)
Ballard v. Ballard, 255 So. 3d 126 (Miss. 2017) (limits on relying on GAL hearsay when it is sole basis for chancellor’s finding)
McDonald v. McDonald, 39 So. 3d 868 (Miss. 2010) (GALs properly appointed under Rule 706 may rely on hearsay in forming opinions)
Albright v. Albright, 437 So. 2d 1003 (Miss. 1983) (factors guiding child-custody decisions)
Mabus v. Mabus, 847 So. 2d 815 (Miss. 2003) (modification requires post-judgment material change adverse to child)
Story v. Allen, 7 So. 3d 295 (Miss. Ct. App. 2008) (equity precludes rewarding a parent for conduct that produced continuity-of-care advantage)
Smith v. Smith, 206 So. 3d 502 (Miss. 2016) (chancellor must make independent custody findings; GAL report is advisory)
Heisinger v. Riley, 243 So. 3d 248 (Miss. Ct. App. 2018) (equitable consideration of parental misconduct in Albright analysis)