229 So. 3d 148
Miss. Ct. App.2016Background
- Dale Miller and Jessica Smith divorced after prior criminal incarcerations; Dale sought custody of two children (Smitty and Margaret); DNA testing showed Dale is Margaret’s biological father but not Smitty’s.
- Allegations arose that Dale sexually abused Jessica’s older daughter (Kristen); a guardian ad litem (GAL) was appointed and ultimately recommended Dale receive custody of both children.
- The chancery court found Dale did not stand in loco parentis to Smitty, terminated any parental rights as to Smitty, awarded custody of Margaret to Jessica, and limited Dale to supervised visitation with Margaret based on abuse testimony; court ordered Dale to pay child support and share college expenses.
- Dale moved for a new trial and appealed, asserting errors including wrongful termination of parental rights, exclusion from Kristen’s testimony, denial of a new trial after the GAL’s supplemental report, ignoring the GAL recommendation, and erroneous custody/visitation rules.
- The trial court explained its findings including detailed Albright-factor analysis and reasons for rejecting the GAL recommendation; this appeal challenges those determinations.
Issues
| Issue | Plaintiff's Argument (Miller) | Defendant's Argument (Smith / Trial Court) | Held |
|---|---|---|---|
| 1) In loco parentis / parental rights re: Smitty | Miller: He functioned as Smitty’s parent and is entitled to parental rights/visitation | Court: Miller failed to prove a parental relationship; natural-parent presumption favors others | Court affirmed termination of Miller’s parental rights re: Smitty (substantial evidence supports finding no in loco parentis) |
| 2) Excluding Miller from Kristen’s testimony | Miller: Exclusion violated confrontation clauses and M.R.E. 615/617; prejudiced his defense | Court: Confrontation inapplicable (civil case); counsel present and cross-examined Kristen; no prejudice shown | No reversible error — exclusion did not deny due process |
| 3) Denial of new trial (Rule 59) | Miller: New evidence in GAL’s supplemental report / injustice warrants new trial | Court: No intervening law, newly available evidence, or clear legal error demonstrated | Denial of new trial affirmed (abuse of discretion not shown) |
| 4) Chancellor rejecting GAL recommendation | Miller: GAL recommended Miller for custody; chancellor erred in rejecting it | Court: Chancellor considered GAL report, explained reasons, applied Albright factors | Affirmed — chancellor may reject GAL if reasons are stated and supported by evidence |
| 5) Custody, visitation, and college support re: Margaret | Miller: Custody award to Jessica and supervised visitation / shared college costs were improper | Court: Chancellor’s Albright analysis favored Jessica; supervised visitation appropriate given abuse testimony; college costs properly split | Custody, supervised visitation, and college-support order affirmed |
Key Cases Cited
- Arrington v. Arrington, 80 So.3d 160 (Miss. Ct. App. 2012) (standard of review in domestic-relations cases)
- In re Dissolution of Marriage of Wood, 35 So.3d 507 (Miss. 2010) (chancellor’s factual findings reviewed for manifest error)
- Phillips v. Phillips, 45 So.3d 684 (Miss. Ct. App. 2010) (appellate review standards)
- Montgomery v. Montgomery, 20 So.3d 39 (Miss. Ct. App. 2009) (best interest of the child as polestar)
- Hensarling v. Hensarling, 824 So.2d 583 (Miss. 2002) (best-interest principle in custody appeals)
- Hammers v. Hammers, 890 So.2d 944 (Miss. Ct. App. 2004) (deference to chancellor where substantial evidence exists)
- Bower v. Bower, 758 So.2d 405 (Miss. 2000) (appellate restraint in custody matters)
- Farve v. Medders, 128 So.2d 877 (Miss. 1961) (in loco parentis defined)
- W.R. Fairchild Constr. Co. v. Owens, 224 So.2d 571 (Miss. 1969) (elements of in loco parentis)
- Davis v. Vaughn, 126 So.3d 33 (Miss. 2013) (natural-parent presumption vs. in loco parentis)
- Floyd v. Floyd, 949 So.2d 26 (Miss. 2007) (requirement to state reasons when rejecting GAL recommendations)
- Moorman v. Moorman, 28 So.3d 670 (Miss. Ct. App. 2009) (consideration of sibling separation in custody decisions)
- Robison v. Lanford, 841 So.2d 1119 (Miss. 2003) (procedures for in-chambers child interviews)
- Brooks v. Roberts, 882 So.2d 229 (Miss. 2004) (grounds for relief under Rule 59)
- M.C. Morris v. Inside Outside Inc., 185 So.3d 413 (Miss. Ct. App. 2016) (standard for reviewing denial of Rule 59 motion)
- Avery v. State, 119 So.3d 317 (Miss. 2013) (prejudice required for reversal when exclusionary rule not enforced)
- Woulard v. State, 832 So.2d 561 (Miss. 2002) (same principle concerning prejudice)
- Albright v. Albright, 437 So.2d 1003 (Miss. 1983) (Albright factors for custody determinations)