IN THE SUPREME COURT OF MISSISSIPPI

NO. 94-CA-00441-SCT

SANDRA MARIA JACKSON BREDEMEIER

v.

GARY DEAN JACKSON

DATE OF JUDGMENT: 04/15/94

TRIAL JUDGE: HON. J. N. RANDALL JR.

COURT FROM WHICH APPEALED: HARRISON COUNTY CHANCERY COURT

ATTORNEY FOR APPELLANT: WALTER W. TEEL

ATTORNEY FOR APPELLEE: HERBERT J. STELLY

NATURE OF THE CASE: CIVIL - DOMESTIC RELATIONS

DISPOSITION: AFFIRMED - 2/27/97

MOTION FOR REHEARING FILED:

MANDATE ISSUED: 3/20/97

BEFORE PRATHER, P.J., PITTMAN AND McRAE, JJ.

McRAE, JUSTICE, FOR THE COURT:

¶1. This is an appeal from a judgment by the Chancery Court of Harrison County which awarded

custody of minors Christopher Dean Jackson (Christopher) and Michelle Nicole Jackson (Michelle)

to Gary Dean Jackson (Gary) and required Sandra Jackson Bredemeier (Sandra) to pay monthly child

support of $300 to Gary. In his written opinion, the chancellor determined that the original physical

custody arrangement was not satisfactory and that the best interest of the children would be met by

placement with the father. We agree with the findings of the chancellor and hereby affirm his

placement of the children with and award of child support to the father, Gary Jackson.

FACTS

¶2. Sandra and Gary married on May 26, 1979, and divorced on March 5, 1991. They are the parents

of two children, Christopher and Michelle. Gary and Sandra divorced on the grounds of

irreconcilable differences.

¶3. In the original divorce decree, the chancery court granted Sandra and Gary joint legal and

physical custody of the children, and by agreement of the parents, the children lived in the mother's
house for one month and then the father's house one month, switching at the conclusion of each

month. Gary was required to maintain medical insurance on the children and to divide with Sandra all

non-insured costs for the children. Additionally, if Gary did not have access to a group or workrelated policy, the children could be added to Sandra's group-related policy with Gary making

payments to Sandra for the cost of the policy. Both parties were required to confer before engaging

the services of any medical care providers. Gary was also required to pay Sandra $300 per month for

child support for the minor children.

¶4. Following the divorce, both parties remarried, and from March 1991 to September 1991, Gary

maintained the majority of the physical custody of the children. Gary filed a Complaint for

Modification on June 9, 1992, seeking to modify the amount of child support, to require that no child

support be paid, to require Sandra to maintain the medical insurance on the children, and to order

that all other terms of the previous judgment remain in full force and effect. Sandra answered and

counterclaimed, requesting the court to end the swapping schedule of the children, since it was highly

disruptive, and to award her primary physical custody of the children. She also requested a judgment

for all past due child support and support-related sums owing up to the hearing of the case.

¶5. In April 1993, the chancellor appointed Dr. Virginia DeRoma, a psychologist, to evaluate the

children, and he reduced Gary's support payments to every other month, to account for those months

when the children did not reside with him. Subsequently, the court, in July 1993, entered a temporary

order which granted physical custody of Christopher to Gary and physical custody of Michelle to

Sandra. Each party was required to pay the support expense for the child of which he or she had

physical custody.

¶6. The chancellor determined in January 1994 that since the July 1993 order was temporary, it

should allow a trial on the complaint for modification. In subsequent motions, Gary sought primary

custody of both children, while Sandra sought custody of Michelle, along with an order of contempt

against Gary for failure to pay medical bills and child support. Upon hearing the evidence presented,

the chancellor granted joint legal custody to Sandra and Gary, the same legal status as the original

divorce decree. However, he also granted Gary the primary physical custody of the children, subject

to Sandra's rights of visitation. The chancellor also ordered Sandra to pay Gary $400 per month in

child support, with certain limitations. The order required Gary to pay for major medical and hospital

insurance for the children. Both parents were to split all health care expenses not covered by the

insurance. The court also delineated visitation privileges for Sandra on weekends, holidays, and

summer vacations. The chancellor denied Sandra's claims for contempt against Gary and her request

for attorney's fees.

¶7. Sandra immediately filed a motion to reconsider on April 19, 1994, seeking to overturn the

chancellor's earlier order. In an April 22, 1994 order, entered after the motion to reconsider, the

chancellor affirmed his earlier order, except that he decreased Sandra's monthly child support

obligation to $300. It is from this decision she appeals to this Court.

DISCUSSION

I. The court erred in not declaring a mistrial, not recusing itself, and allowing improper,

prejudicial and irrelevant evidence into the record.
A. Improper, prejudicial and irrelevant evidence.

¶8. The evidentiary problem in this case arises with the chancellor's decision to allow in evidence a

letter from the Bredemeiers (Sandra and Greg) to the Mississippi Board of Psychological Examiners.

In the letter, the Bredemeiers criticized the practices of Dr. William Gasparrini, in relation to his

evaluating the children for the court in the child custody case. Specifically, they suggested that

Gasparrini purposely discredited Sandra in his evaluations and possibly acted negligently.

¶9. Sandra argues that Gary's counsel purposely introduced the letter to bias and prejudice the court,

since the court frequently used Dr. Gasparrini as an expert. She says that the letter, which complains

about Gasparrini, has nothing to do with whether or not she should be able to keep her daughter. On

the contrary, this letter is relevant. It was written by the appellant, and it was in reference to the

ongoing custody case. Relevant evidence is evidence "having any tendency to make the existence of

any fact that is of consequence to the determination of the action more probable or less probable than

it would be without the evidence." MidSouth Rail Corp. v. O'Connor, 672 So.2d 1176, 1182 (Miss.

1996); Mississippi Rules of Evidence, Rule 401.

¶10. Evidence, though relevant, may be excluded "if its probative value is substantially outweighed by

the danger of unfair prejudice, confusion of the issues, or misleading of the jury, or by considerations

of undue delay, waste of time, or needless presentation of cumulative evidence." M.R.E., Rule 403.

The determination of relevancy of evidence is left to the sound discretion of the trial judge, whose

determination will not be reversed in the absence of clear abuse. Watts v. State, 635 So.2d 1364,

1367 (Miss. 1994); Williams v. State, 543 So.2d 665, 667 (Miss. 1989). For a case to be reversed on

the admission or exclusion of evidence, the ruling must result in prejudice and harm or adversely

affect the party's substantial right. Terrain Enter., Inc. v. Mockbee, 654 So.2d 1122, 1131 (Miss.

1995).

¶11. At trial, Sandra's counsel asked her why the letter was sent, to which she responded that Dr.

Gasparrini was not the original court-ordered psychologist, and that he may have had a problem with

her cutting his pay in a previous job. However, as the letter reflects, the Bredemeiers were obviously

dissatisfied with Dr. Gasparrini's conclusions, and they alleged in the letter that his conduct may have

been negligent. Dr. Gasparrini's testimony bears directly on this case, for the court reviewed his and

Dr. Virginia DeRoma's recommendations. The charges of negligence gave the court pause, and

forced the court to examine Dr. Gasparrini's report and testimony for undue influence, which the

chancellor ordinarily would not have had to do.

¶12. The court also expressly made clear that this letter was relevant to the personalities of the

people trying to gain custody of the children, and that it would not base its decision on the letter

alone. Further, the court found that Dr. Gasparrini was not subject to outside influence, thus

indicating that those who wrote the letter may have been obstructive.

¶13. The chancellor's statements about a possible "obstruction of justice" was not prejudicial to the

appellants. In fact, as the chancellor noted, the source of prejudice was the letter from the

Bredemeiers to the Board of Psychological Examiners. However, when balanced against the letter's

probative value, that prejudice was outweighed. Thus, the letter was correctly admitted, and the

chancellor did not abuse his discretion.
B. Recusal

¶14. Sandra also urges that the chancellor erred in not recusing himself. Canon 3(C)(1) of the Code

of Judicial Conduct requires disqualification of a judge when his or her "impartiality might reasonably

be questioned, including but not limited to instances where: (a) he [or she] has a personal bias or

prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the

proceeding." Code of Judicial Conduct, Canon 3(C)(1). In other words, would a reasonable person,

knowing all the circumstances, harbor doubts about the judge's impartiality? Frierson v. State, 606

So.2d 604, 606 (Miss. 1992); Rutland v. Pridgen, 493 So.2d 952, 954 (Miss. 1986). This Court

presumes that a judge, sworn to administer impartial justice, is qualified and unbiased. To overcome

the presumption, the evidence must produce a "reasonable doubt" about the validity of the

presumption. Turner v. State, 573 So.2d 657, 678 (Miss. 1990). This Court reviews a judge's refusal

to recuse himself using the manifest error standard. Davis v. Neshoba County Gen. Hosp., 611

So.2d 904, 905 (Miss. 1992).

¶15. Sandra correctly notes that the question deals with the reasonable person standard. However,

the judge learned about the letter through examination by counsel. Most appropriate is Sandra's

notation of the discussion regarding the judge's friendship with Dr. Gasparrini. The chancellor stated

at the hearing that he had high regard for Dr. DeRoma, the other psychologist, and Dr. Gasparrini.

The chancellor also stated that he was friends with both of the attorneys in the case, to which neither

attorney had an objection. Since the judge had used Dr. Gasparrini before, he should have had no

reason to think that his use this time would be improper. Further, a reasonable person would not

consider the judge's knowledge of the attorneys and court-appointed experts sufficient reasons to

harbor doubts about the judge's impartiality.

¶16. Because the judge's relationship to Dr. Gasparrini did not appear to cast doubts on his

impartiality, and because the judge evaluated the doctor's recommendations for indication of undue

influence, the court did not err in not recusing itself from this case.

C. Mistrial

¶17. Thirdly, the appellant assigns as error the trial judge's failure to declare a mistrial. A trial judge is

in a better position to assess the effect of incidents which may require a mistrial than is this Court on

appeal, and this Court will not reverse on the failure to grant a mistrial unless the trial judge abused

his discretion in overruling the motion for a mistrial. Walker v. State, 671 So.2d 581, 622 (Miss.

1995); Chase v. State, 645 So.2d 829, 848-49 (Miss. 1994).

¶18. Sandra argues that the introduction of the letter to the Board of Psychologists was sufficient to

warrant a mistrial. Given the discussion above regarding the relevance of the document, along with

the judge's correct decision not to recuse himself, we find this argument to be without merit. The

court did not abuse its discretion by failing to grant a mistrial.

II. The court erred in failing to award custody of the female minor child to the appellant.

¶19. Sandra stresses that Michelle should be with her for several reasons, including the need for the

female child to be with her mother and Sandra's primary role as a housewife, which would allow her

to spend full time to take care of Michelle. Sandra basically asks for reinstatement of the prior
temporary custody arrangement, because nowhere in her argument does she mention a desire to have

custody of Christopher and Michelle.

¶20. The thrust of the appellant's argument is that the chancellor did not correctly apply the test

found in Albright v. Albright, 437 So.2d 1003 (Miss. 1983), regarding factors to be considered

when determining the best interest and welfare of the child in a custody proceeding. Both parties

agree that Albright is the proper test:

Age should carry no greater weight than other factors to be considered, such as: health, and sex

of the child; a determination of the parent that has had the continuity of care prior to the

separation; which parent has the best parenting skills and which has the willingness and capacity

to provide primary child care; the employment of the parent and responsibilities of the

employment; physical and mental health and age of the parents; emotional ties of parent and

child; moral fitness of parents; the home, school and community record of the child; the

preference of the child at the age sufficient to express a preference by law; stability of home

environment and employment of each parent, and other factors relevant to the parent-child

relationship.

Id. at 1005.

¶21. In the ordinary modification proceeding, the non-custodial party must prove: (1) that a

substantial change in circumstances has transpired since issuance of the custody decree; (2) that this

change adversely affects the child's welfare; and (3) that the child's best interests mandate a change of

custody. Bubac v. Boston, 600 So.2d 951, 955 (Miss. 1992). A chancellor's finding of fact on such a

matter will not be set aside or disturbed on appeal unless the finding is manifestly wrong or is not

supported by substantial credible evidence. Polk v. Polk, 589 So.2d 123, 129 (Miss. 1991). It is

similarly so whether the fact be found expressly or by necessary implication, and whether the finding

relates to an evidentiary fact or an ultimate fact. Spain v. Holland, 483 So.2d 318, 320 (Miss. 1986).

¶22. In considering whether there has been such a change in circumstances, the totality of the

circumstances should be considered. Tucker v. Tucker, 483 So.2d 318, 319 (Miss. 1986). Even

though under the totality of the circumstances a change has occurred, the court must separately and

affirmatively determine that this change is one which adversely affects the children. Id.

¶23. Although there is no "hard and fast" rule that the best interest of siblings will be served by

keeping them together, this Court has been extremely hesitant to separate siblings when their parents

divorce. Sellers v. Sellers, 638 So.2d 481, 484 (Miss. 1994); Franklin v. Kroush, 622 So.2d 1256,

1256 (Miss. 1993); Arnold v. Conwill, 562 So.2d 97, 100 (Miss. 1990). We have previously stated

that:

The Court shall in all cases attempt insofar as possible, to keep the children together in a family

unit. It is well recognized that the love and affection of a brother and sister at the ages of these

children is important in the lives of both of them and to deprive them of the association

ordinarily would not be in their best interests.

Sparkman v. Sparkman, 441 So.2d 1361, 1362 (Miss. 1983), quoting dicta from Mixon v. Bullard,

217 So.2d 28 (Miss. 1968).
¶24. The testimony from the psychologists is very revealing. Dr. DeRoma examined Gary, Sandra,

Christopher, and Michelle, and made several conclusions. Tests revealed that both children view their

father more favorably than they do their mother. DeRoma also noted that the Bredemeiers had

instances of excessive physical discipline while the Jacksons had none. She also noted that the

stepmother, Linda Jackson, had a positive relationship with both children, while the stepfather, Dr.

Bredemeier, had a strained relationship with them.

¶25. DeRoma stated in her deposition that she believed that the children should be kept in the same

household, wherever the judge decided to place them. And, while noting that both Gary and Sandra

had strengths and weaknesses which would factor into her recommendation, she noted that Gary

showed greater strength in the educational area than Sandra. Finally, she acknowledged that both

children expressed a desire to live with Gary. In her final recommendation, DeRoma noted that the

testing data she analyzed suggested that the children's adjustment would be best promoted in the

custody of Mr. Jackson.

¶26. Dr. Gasparrini also evaluated Christopher and Michelle. He recommended that Christopher be

allowed to remain with his father, while participating in some kind of counseling with his mother.

After interviewing Michelle, Gasparrini noted that she would probably adjust better if she were

allowed to live in one home throughout most of the year and have visits on a regular basis from the

non-custodial parent. At trial, he recommended that the father have custody of both children.

¶27. In his bench opinion, the chancellor determined that because both parties agreed to modification,

there was no need to show that there was a material and substantial change in circumstances since

entry of the original divorce decree and that the change adversely affected the children.

Unfortunately, the chancellor did not reference any authority for his decision to do so. Nonetheless,

even under the regular modification test, we believe that the chancellor's decision is not manifestly

wrong.

¶28. The material change in circumstances warranting the modification is evident in this case. All

parties and the court agreed that the split custody arrangement was not working. Both psychologists

felt that the children should be in the same household, wherever that was. In a similar case, this Court

upheld a chancellor's finding that "the advent of school age was a material change in circumstances

that rendered the split custody of the child useless and even harmful to the child." Torrence v.

Moore, 455 So.2d 778, 780 (Miss. 1984). In the instant case, there is no single incident that required

a modification of custody. Rather, under the totality of the circumstances, many things occurred to

create material change--both parties remarried, custody was temporarily modified, and the parties

could not make either of the custody arrangements work. See Gurney v. Gurney, 899 P.2d 52, 55

(Wyo. 1995)(finding that when parents are unable to make joint custody arrangement work, a change

in circumstances justifying modification exists); Rodriguez v. Rodriguez, 801 S.W.2d 80, 84 (Mo.

Ct. App. 1990)(finding that failure of custody arrangement where children changed residences

between father's and mother's was one of several changes in circumstances warranting modification).

¶29. Further, there is no question that all parties believed that the children were being adversely

affected as a result of the first custody arrangement and the temporary arrangement. In his written

opinion, the chancellor stated that he considered all of the Albright factors and the possibility of

breaking up the entire family unit, as well as the value of Dr. Gasparrini's statements in light of the
criticisms made by the Bredemeiers. It is clear that the chancellor kept in mind the best interests of

the children in reaching his conclusion.

¶30. This Court's decision in Stevison, 560 So.2d at 180, is analogous to the case sub judice. The

change in custody fits within the "unusual circumstances" exception, laid out in Spain v. Holland:

"We do not foreclose the consideration by our trial courts of peculiar or unusual circumstances

adversely affecting the children over and above the effect attendant upon the mere increase in miles

between children and the non-custodial parent." Holland, 483 So.2d at 321. In the Stevison case, the

unusual circumstances were split custody and the poor relationship between the mother and her son.

Stevison, 560 So.2d at 180. The mother had custody of the daughter and moved to Alaska,

separating the daughter and son, who previously were able to visit with each other every day. Id.

This Court found that the chancellor was not manifestly wrong in deciding to modify child custody.

Id. Similarly unusual circumstances are present in this case. Like the judge in Stevison, the chancellor

here previously split custody of the sibling children. Further, Christopher and his mother have a very

strained relationship, like the mother and son in Stevison. These unusual circumstances justify the

chancellor's decision.

¶31. This Court also previously held that a chancellor did not err in awarding custody of a child to his

father, where even though the mother may have presented enough evidence at trial to let one

conclude that custody should have been awarded to her, the weight of the evidence in favor of the

mother was not so great as to make an award of custody to the father erroneous. Chamblee v.

Chamblee, 637 So.2d 850, 861 (Miss. 1994). Again, even though the chancellor never determined

Sandra to be an unfit mother, and even though he recognized her many good qualities, the evidence is

not so great as to make the grant of custody to Gary erroneous.

¶32. Sandra's assertion that the chancellor ignored many of the Albright factors is mistaken.

Although the court had no statutory basis for considering Michelle's preference, this does not make

the chancellor's decision manifestly wrong. A reading of the chancellor's opinion above reveals that

he considered many factors in determining the placement of the children. The court reiterated that its

primary consideration was the best interests of the children. Therefore, the chancellor cannot be held

in error for awarding custody of Michelle to her father, Gary.

III. The court erred in not finding the defendant/appellee in contempt of court for the failure

to pay past due child support and medical bills.

¶33. The original divorce decree required Gary to pay child support to Sandra in the amount of $300

per month, along with payment of certain medical and other expenses. Sandra asserts that between

March 1993 and March 1994, Gary only paid her $150, which left a balance of $3,450 in back child

support payments. Further, Sandra states that there are various medical bills for which Gary should

be required to reimburse her.

¶34. This Court will not reverse a chancellor upon a finding of fact short of manifest error. Milam v.

Milam, 509 So.2d 864, 866 (Miss. 1987). Contempt is to be determined upon the facts of an

individual case and is a matter for the trier of fact. Id. A citation for contempt is proper only when

the contemner has willfully and deliberately ignored the order or the court. Stevison, 560 So.2d at

180; Cooper v. Keyes, 510 So.2d 518, 519 (Miss. 1987). The chancellor determined that Gary had

made any outstanding child support payments and we find no error here. Accordingly, there is no
basis for holding Gary in contempt and this point of error is without merit.

IV. The court erred in awarding the amount of child support to the appellee.

¶35. Sandra claims that there should have been no grant of child support to Gary, because she should

have retained custody of Michelle. Sandra notes that her income is only $152 per month, and her

ability to get another job to pay her $30,000 per year is irrelevant.

¶36. This Court consistently has held that it will not disturb a chancellor's determination of child

support "unless the chancellor was manifestly in error in his finding of fact and manifestly abused his

discretion." Grogan v. Grogan, 641 So.2d 734, 741 (Miss. 1994). "The process of weighing

evidence and arriving at an award of child support is essentially an exercise in fact-finding, which

customarily significantly restrains this Court's review." Cupit v. Cupit, 559 So.2d 1035, 1036-37

(Miss. 1990). When a chancellor makes a ruling without specific findings of fact, this Court assumes

that the chancellor resolved any factual disputes in favor of the appellee. Goode v. Village of

Woodgreen Homeowners Ass'n, 662 So.2d 1064, 1071 (Miss. 1995).

¶37. This Court recognizes several factors for a chancellor to consider in child support cases: (1) the

health of the husband and his earning capacity; (2) the health of the wife and her earning capacity; (3)

the entire sources of income of both parties; (4) the reasonable needs of the wife; (5) the reasonable

needs of the child; (6) the necessary living expenses of the husband; (7) the estimated amount of

income taxes the respective parties must pay on their incomes; (8) the fact that the wife has the free

use of the home, furnishings and automobile, and (9) such other facts and circumstances bearing on

the subject that might be shown by the evidence. Dufour v. Dufour, 631 So.2d 192, 194 (Miss.

1994).

¶38. It is apparent from the record that the chancellor took into consideration the incomes of Gary

and Sandra. In this instance, the court determined that Sandra could be working as a registered nurse,

and that her obligation to her children would not decrease just because she chose not to work full

time. It is further reasonable for the non-custodial parent to pay child support to the custodial parent,

even if it is a wife paying to her husband. The chancellor did not give any specific reasons for giving a

$300 award of child support to the father. However, we must assume that the chancellor's reasons

support his decision. Therefore, the court did not err in awarding child support to Gary.

V. The court erred in not awarding attorney's fees and costs to the appellant.

¶39. Sandra's position is that since the court should impose contempt on Gary, and that since he

should be forced to pay arrearages in support payments, he should also be forced to pay Sandra's

attorney's fees. Gary asserts that since Sandra could make $30,000 per year, she cannot say that she

is unable to pay her attorney.

¶40. The award of attorney fees in divorce cases is left to the discretion of the chancellor, assuming

he follows the appropriate standards. Dunn v. Dunn, 609 So.2d 1277, 1286 (Miss. 1992). The fee

should be fair and should only compensate for services actually rendered after it has been determined

that the legal work charged for was reasonably required and necessary. Id.Unless the chancellor is

manifestly wrong, his decision regarding attorney fees will not be disturbed on appeal. Id.; Trunzler

v. Trunzler, 431 So.2d 1115, 116 (Miss. 1983). Generally, unless the party requesting attorney fees
can establish the inability to pay, such fees should not be awarded. Dunn, 609 So.2d at 1287.

¶41. Sandra has failed to show that she is unable to pay her attorney fees. Moreover, since the court

was not in error for failing to grant a mistrial, there is no basis for the her allegation that the

chancellor was manifestly wrong in deciding not to award Sandra attorney's fees and costs. This

claim too, is without merit.

CONCLUSION

¶42. As to all points of error, we conclude that the chancellor committed no error and therefore

affirm his decision.

¶43. JUDGMENT IS AFFIRMED.

LEE, C.J., PRATHER AND SULLIVAN, P.JJ., PITTMAN, BANKS, ROBERTS, SMITH

AND MILLS, JJ., CONCUR.