Parental Actions Against the Best Interest of the Child and Remand

November 21, 2017 § Leave a comment

In Darnell v. Darnell, 167 So.3d 195, 198 (Miss. 2014) (Darnell I), the MSSC remanded the case to the chancellor with directions to consider two statements of a minor child that he had excluded in the trial.

The chancellor had awarded the father, Duff Darnell, custody of the child based largely on conduct of the mother, Carla Darnell. After remand, the judge addressed the statements of the child and made a detailed Albright analysis, after which he again awarded custody to Duff. Carla appealed, and the MSSC affirmed in Darnell v. Darnell, decided October 26, 2017.

The court’s opinion addresses two important issues: parental misconduct toward the other parent; and what the judge is required to consider on remand.

On parental misconduct, the chancellor spelled out what he found to be Carla’s misconduct:

… the actions of the mother, Carla Darnell, taking visitation away from the father, filing charges with the military against the father, accusing the father of being a child molester, and disparaging the father in the small community where the family resided, coupled with her telling the child that the child should tell everybody that he wants to stay with her and not the father adversely impacts the minor child. Darnell II, at ¶7.

The MSSC, in a unanimous opinion by Justice Randolph, rejected Carla’s argument that the chancellor had failed to consider the child’s statements in making his findings:

¶7. That argument is without merit, for the chancellor entered a detailed, twenty-nine page amended final judgment. He addressed the statements made by C.D. to his teacher, Dana Walker, and principal, Machelle Dyess, and Dyess’s testimony regarding those statements. He also considered those statements in conjunction with Dr. Scott Benton’s testimony. He found that no witness who had knowledge of C.D. making the two specific statements testified that C.D. actually had been abused. No evidence was presented that any sexual abuse occurred. The chancellor stated in his order that he considered the three reports of the GAL, the exhibits, and testimony of the parties and witnesses at trial. He found [the conduct set out above].

¶8. Based on the record, the chancellor considered the statements and found that those statements did not change the outcome of his award of custody to Duff. “[T]he chancellor is the finder of fact, and the assessment of witness credibility lies within his sole province.” Carambat v. Carambat, 72 So. 3d 505, 510 (Miss. 2011). The chancellor’s findings are supported by substantial evidence; thus he did not manifestly err in that regard.

The takeaway here on this issue is twofold:

(1)  The kind of conduct found by the chancellor is a combination lethal to your client’s claim for custody. You should not come to court with a similar set of facts in the expectation that the judge will not see your client in an unfavorable light.

(2)  The chancellor is the finder of fact and assessor of credibility, and, if there is substantial evidence in the record to support his or her findings, those findings will stand on appeal.

As for how the chancellor handled the remand, the record shows that he simply revised his original findings, addressing the excluded evidence as the MSSC directed him to do. No hearing was held, and no further evidence was taken. Carla argued on appeal that by not holding a new hearing the chancellor had erred by failing to take into account the new developments and facts pertaining to custody at the time of the remand. The MSSC rejected Carla’s claim:

¶12. On remand, this Court specifically instructed the chancellor to make:

new findings of fact and conclusions of law in which the first two statements made by C.D. to Dyess and Walker are considered as admissible evidence. Because of the additional evidence, the chancellor also should conduct a new Albright analysis showing the reasons for his ruling, and it would be helpful if he specifically stated why he disagreed with the guardian ad litem’s recommendations.

Id. at 210. This Court did not instruct the chancellor to hold a new hearing, change his findings and conclusions, or consider new evidence of C.D.’s current condition.

¶13. Carla, citing Vaughn v. Davis, 36 So. 3d 1261 (Miss. 2010), argues that the general rule for remanded child custody cases requires a chancellor to consider the child’s circumstances at the time of remand, rather than at the time of the previous hearing. However, this Court has never made such a pronouncement. This Court specifically instructed the chancellor in Vaughn to consider the minor’s present circumstances, if the chancellor made a determination of desertion. Id. at 1267. No such instruction was given to today’s chancellor. This issue is without merit.

In other words, the remanding opinion of the appellate court is the law of the case from that point forward. The chancellor is obligated to do only what the appellate court directs him or her to do. In this case, the chancellor simply took the two statements into account in his amended findings of fact and conclusions of law. No further hearing; no new evidence. The Darnell I remand had not directed the chancellor to conduct an new hearing or to consider evidence arising after the initial trial date.

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