McCarty v. McCarty
2011 Miss. App. LEXIS 47
| Miss. Ct. App. | 2011Background
- Lisa Kole and Jeremy McCarty divorced in 2004 with joint physical custody of Julianna and Jacob.
- In 2009, Jackson County Chancery Court modified to grant Jeremy sole physical custody and Lisa visitation.
- A guardian ad litem (GAL) was appointed in 2007; GAL reported concerns about Julianna and recommended temporary custody to Jeremy.
- The GAL’s February 2009 final report concluded a material change in circumstances due to Lisa’s interference and manipulation of the children’s relationship with their father.
- Lisa introduced Karen’s nineteen-page letter as evidence; the court also admitted the GAL reports but excluded Jeremy’s pre-divorce DUI records.
- The chancellor found a material change in circumstances and applied the Albright factors, awarding Jeremy permanent custody; Lisa appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the GAL evidence was given proper weight | Kole argues GAL reports unreliable and biased. | McCarty contends GAL performed duties and provided credible findings the court can credit. | No abuse of discretion; GAL reports properly weighed. |
| Whether Karen's letter improperly influenced the decision | Letter showed Jeremy’s instability and was improperly considered. | Court properly found letter venting and not dispositive of his emotional stability. | Letter given limited evidentiary value; no reversible error. |
| Whether pre-divorce behavior (DUIs) was improperly admitted | Pre-divorce conduct should be relevant to present custody decision. | Pre-divorce behavior was not relevant to post-divorce modification. | Court acted within discretion; no error in excluding pre-divorce conduct. |
| Whether there was a material change in circumstances adverse to the children | No material change shown beyond Lisa’s dislike of Karen. | Lisa’s post-divorce behavior and hostility constituted a material change. | Substantial evidence supports a material change in circumstances. |
| Whether the Albright factors supported the custody modification | Albright factors found in Lisa’s favor in several respects. | Albright factors, considered in totality, support Jeremy’s custody. | Court’s on-record Albright analysis supported Jeremy’s custody. |
Key Cases Cited
- Lorenz v. Strait, 987 So.2d 427 (Miss. 2008) (standard for reviewing custodial-modification decisions)
- Settle v. Galloway, 682 So.2d 1032 (Miss. 1996) (review for manifest error or abuse of discretion)
- Chamblee v. Chamblee, 637 So.2d 850 (Miss. 1994) (credibility and weight-of-evidence issues for the lower court)
- Blake v. Clein, 903 So.2d 710 (Miss. 2005) (admission or suppression of evidence within trial court discretion)
- In re D.K.L., 652 So.2d 184 (Miss. 1995) (when GAL must be appointed; court-ordered appointment considerations)
- Mercier v. Mercier, 717 So.2d 304 (Miss. 1998) (tender-years doctrine limitations; age considerations)
- Montgomery v. Montgomery, 20 So.3d 39 (Miss.Ct.App. 2009) (tender-years doctrine diminished; age-based presumptions weakened)
- Albright v. Albright, 437 So.2d 1003 (Miss. 1983) (Albright factors for child custody best interests analysis)
- Sturgis v. Sturgis, 792 So.2d 1020 (Miss.Ct.App. 2001) (on-the-record analysis of Albright factors)
- Brewer v. Brewer, 919 So.2d 135 (Miss.Ct.App. 2005) (custody decision considerations and standards)
- Ferguson v. Ferguson, 782 So.2d 181 (Miss.Ct.App. 2001) (totality-of-the-circumstances in custody modification)