Evidence of Pre-Divorce Conduct in a Modification

July 3, 2014 § 1 Comment

The chancellor granted Marquis Stevenson’s petition for modification of custody, taking the child from his ex-wife Tanisha Martin. Tanisha appealed. One assignment of error was the chancellor’s exclusion of evidence of Marquis’s past domestic violence.

The COA, in Martin v. Stevenson, decided February 11, 2014, found no error. Judge Carlton, for the majority, said this:

¶32. We review a trial judge’s decision of whether to admit or exclude evidence under an  abuse-of-discretion standard of review. Rushing v. Rushing, 724 So. 2d 911, 914 (¶11)  (Miss. 1998) (citations omitted).  In Lackey v. Fuller, 755 So. 2d 1083, 1085 (¶¶6-7) (Miss.  2000), the parties obtained an irreconcilable-differences divorce, and the wife later asked for  modification of the final judgment.  At the hearing, the chancellor allowed into evidence  testimony regarding the wife’s predivorce conduct. Id. at 1086 (¶11). In its discussion of
res judicata as it applies to divorce proceedings and child-custody issues, the Mississippi  Supreme Court stated:

We begin with the principles of res judicata[,] which command that a final judgment preclude[s] thereafter all claims that were or reasonably may have been brought in the original action.  The familiar rule that a judgment for alimony, custody[,] or support may be modified only upon a showing of a post-judgment material change of circumstances is a recognition of the force of res judicata in divorce actions.

Id. at (¶13) (citations omitted). The supreme court concluded that the wife’s predivorce  conduct was res judicata and that the only evidence the chancellor should have admitted was evidence pertaining to post-judgment conduct. Id. at 1087 (¶18).

¶33. In the present case, the record shows that at the September 28, 2011 hearing, Tanisha’s attorney tried to question Marquis about charges that arose prior to the divorce proceeding. Upon the objection of Marquis’s attorney, the chancellor asked Tanisha’s  attorney whether there had been any continuation of Marquis’s conduct since the divorce decree and stated: “[U]nless you can tie some current conduct to that past conduct, I’m going to have to sustain the objection.” Because Tanisha’s attorney could not provide any evidence
of domestic violence by Marquis since the divorce, the chancellor found the evidence not relevant and sustained the objection. The issue arose again during Tanisha’s testimony, and the chancellor again explained that he would sustain the objection as to any matters that occurred prior to the divorce decree but would allow testimony regarding any actions since that time.

¶34. Based on the record and applicable law, we find no abuse of discretion in the s past acts of domestic violence.  At the hearing for modification of custody, Tanisha was only able to offer proof of acts that divorce. Tanisha failed to offer any evidence of current conduct occurring since the divorce. Because Tanisha failed to properly raise this claim for consideration in the original divorce decree, she is barred from raising the issue now. This assignment of error therefore lacks merit.

This is a fairly common situation in modification cases, and this case is a helpful guide to how the chancellor should address it.

This case is also an interesting wrinkle on application of the statutory principle that a history of domestic violence may be a basis to deny custody. A previous post on that subject is here.

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