IN THE SUPREME COURT OF MISSISSIPPI

NO. 94-CA-00172-SCT

WILLIAM C. TOUCHSTONE

v.

MONNA AILENE TOUCHSTONE

DATE OF JUDGMENT: 01/19/94

TRIAL JUDGE: HON. GERALD E. BRADDOCK

COURT FROM WHICH APPEALED: HUMPHREYS COUNTY CHANCERY COURT

ATTORNEY FOR APPELLANT: PAULA N. STENNETT-YANCEY

ATTORNEYS FOR APPELLEE: J. MACK VARNER

SAMUEL D. HABEEB

NATURE OF THE CASE: CIVIL - CUSTODY

DISPOSITION: AFFIRMED - 10/10/96

MOTION FOR REHEARING FILED:

MANDATE ISSUED: 10/31/96

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

McRAE, JUSTICE, FOR THE COURT:

¶1. This appeal arises from a January 21, 1994 order of the Humphreys County Chancery Court

denying and dismissing Dr. William Touchstone's motion seeking modification of the physical

custody of his son, Wesley Carlisle Touchstone. Dr. Touchstone contends that the chancellor erred in

not finding that the mother's alleged violent outbursts and her attempts to build a case of child sexual

abuse against the father were a substantial change of circumstances warranting a change in custody.

He further asserts that Monna Touchstone should not have been allowed to invoke the Rule 503

psychotherapist-patient privilege so as to keep a licensed clinical social worker from testifying

regarding the mother's interference with and "coaching" of the child while he was being examined.

Dr. Touchstone raises several other evidentiary issues as well. Although the Rule 503 privilege does

not extend to licensed clinical social workers, we find that any error in excluding the testimony was

harmless since the mother freely acknowledged her participation in the examination session. Finding

that the chancellor properly focused on the best interests of the child in determining not to make a

change in custody, we affirm his decision.

I.

¶2. Monna and William Touchstone were granted a divorce on grounds of irreconcilable differences
by the Humphreys County Chancery Court on November 10, 1992. Pursuant to the Child Custody

and Property Settlement Agreement entered into by the parties, Monna Touchstone was awarded

primary care, custody and control of the minor child, Wesley, born December 29, 1990. The parents

shared joint legal custody and Dr. Touchstone was granted visitation on the first and third weekends

of each month, as well as on various holidays.

¶3. Asserting that Dr. Touchstone had harassed her, exhibited violent behavior during "visitation

swaps," and caused the child to become "confused, angry and full of hatred," Monna Touchstone

filed a Motion for Citation for Contempt, Motion for Modification of Former Decree and Motion for

Restraining Order and Permanent Injunction on April 15, 1993.

¶4. On November 2, 1993, Dr. Touchstone filed his Motion for Modification of Final Judgment, for

Citation of Contempt, for Restraining Order and Permanent Injunction, and Complaint for Damages.

He asserted that there had been a substantial change in circumstances warranting modification in the

custody arrangement, charging that his former wife "has demonstrated mental instability, hysteria and

an inability to control her anger" and that she had attempted to brainwash Wesley into believing he

had been sexually molested by his father. He further raised claims of slander and intentional infliction

of emotional distress, seeking both compensatory and punitive damages.

¶5. After a three-day hearing, the chancellor found that within days after the divorce was final, "the

parties commenced a vendetta between themselves" and that "[t]he proof shows immediately

following subsequent to the divorce, both parties vented their ire and frustration at the other and

neither is blameless." He found, however, that there was "no parental behavior that poses clear

danger to the minor's mental or emotional health to justify a change in custody" and that there had

been no material change in circumstances adverse to the child's best interests. The chancellor

therefore denied Dr. Touchstone's motion to modify primary physical custody, but increased his

visitation time with his son, and enjoined the parties from bringing other people with them,

"particularly girlfriends and/or boyfriends," when picking up and delivering Wesley.

¶6. Aggrieved by the chancellor's refusal to grant him primary custody of his son, Dr. Touchstone

now asks this Court to determine whether the chancellor erred in not finding that there had been a

change in circumstances since 1992 and that it would be in Wesley's best interests to be placed in his

father's custody; in allowing Monna Touchstone to invoke the Rule 503 psychotherapist-patient

privilege to prevent a licensed clinical social worker from testifying regarding her examination of the

child; and in not admitting certain evidence Dr. Touchstone sought to introduce.

II.

¶7. A series of unpleasant incidents occurring after the November, 1992, divorce form the basis of

Dr. Touchstone's assertions that there has been a material change in circumstances warranting a

change in custody of their minor child, Wesley, as well as of Monna Touchstone's contention that

custody should not be modified. These incidents are related only by their association with weekend

visitation exchanges and their occurrence in the presence of the child. Each involved the exchange of

vicious, profanity-laden accusations and insults between the parties. The battle was heightened by

Monna's inferences that Dr. Touchstone had sexually abused the child. She testified that she took

Wesley to see two clinical social workers, Rivers Carpenter and Brenda Chance, because of her

concern about Wesley's behavior. She alleged that he was making "disturbing" statements such as
"I've touched my Daddy's peepee. My Daddy touches mine," and "My Daddy puts his penis on my

face." Dr. Wood Hiatt, however, who observed Wesley and Dr. Touchstone, testified that the two

had a good father-son relationship.

III.

¶8. In matters concerning child custody, "this Court will not reverse a Chancery Court's factual

findings, be they of ultimate fact or of evidentiary fact, where there is substantial evidence in the

record supporting these findings of fact." Smith v. Jones, 654 So. 2d 480, 485 (Miss. 1995)(quoting

Cooper v. Crabb, 587 So. 2d 236, 239 (Miss. 1991)). Furthermore, the chancellor's findings will not

be disturbed when supported by substantial evidence unless the chancellor abused his discretion, was

manifestly wrong or clearly erroneous or applied an erroneous legal standard. Williams v. Williams,

656 So. 2d 325, 330 (Miss. 1995); Smith, 654 So. 2d at 485; Chamblee v. Chamblee, 637 So. 2d

850, 860 (Miss. 1994).

IV.

¶9. "In all child custody cases, the polestar consideration is the best interest of the child." Sellers v.

Sellers, 638 So. 2d 481, 485 (Miss. 1994); Moak v. Moak, 631 So. 2d 196, 198 (Miss. 1994). This

Court has held that the prerequisites to the modification of a child custody agreement are: "(1)

proving a material change in circumstances which adversely affects the welfare of the child and (2)

finding that the best interest of the child requires the change of custody." Smith v. Jones, 654 So. 2d

480, 486 (Miss. 1995). There must be sufficient evidence in the record supporting the chancellor's

opinion for this Court to say that the chancellor has not abused his discretion. Id. "When the

environment provided by the custodial parent is found to be adverse to the child's best interest, and . .

. the circumstances of the non-custodial parent have changed such that he or she is able to provide an

environment more suitable than that of the custodial parent, the chancellor may modify custody

accordingly." Riley v. Doerner, 677 So. 2d 740, 744 (Miss. 1996).

¶10. Dr. Touchstone contends that Monna's behavior during visitation exchanges, coupled with her

inferences that he had sexually abused the child, constitute a change in circumstances adversely

affecting Wesley and warranting a change in custody. He further asserts that after he was granted

extended visitation privileges, Monna quit her job and moved with Wesley to Fort Lauderdale,

Florida without first notifying him. He also states in his brief that he "is again in court trying to get

telephone contact and visitation with his child." There is no evidence in the record of these

developments nor has this Court been advised of any further proceedings in the chancery court. We

consider only those matters that actually appear in the record and will not rely on mere assertions in

briefs. American Fire Protection, Inc. v. Lewis, 653 So. 2d 1387, 1390 (Miss. 1995). Moreover, we

will not hold the trial court in error for matters not placed before it. Touart v. Johnston, 656 So. 2d

318, 321 (Miss. 1995).

¶11. Looking first at Dr. Touchstone's assertion that his former wife's interference with visitation

privileges amounts to a change in circumstances, we note that the testimony at the hearing focused

on a handful of truly nasty incidents between the Touchstones, all of which happened to take place

when young Wesley was being picked up or delivered by his father. As the chancellor astutely

observed in his written finding of facts, "the parties commenced a vendetta between themselves" and

"[t]he proof shows immediately following subsequent to the divorce, both parties vented their ire and
frustration at the other and neither is blameless." From the record, it appears that the incidents

complained of are more the result of the parties' animosity toward each other rather than a reflection

of either's fitness as parents.

¶12. Dr. Touchstone bases his assertion that Monna's interference with visitation rights warrants a

change in custody on Ash v. Ash, 622 So. 2d 1264 (Miss. 1993). In that case, however, the mother's

continued refusal to comply with custody and visitation arrangements pursuant to the divorce decree

had resulted in "a dispute which two prior chancellors and six attorneys, in more than ten (10) court

proceedings, tackled and could not settle." Ash, 622 So. 2d at 1266. This Court noted that the

chancellor's decision to change custody to the father was correct in light of this "difficult" case, but

that "this case should not be considered as establishing precedent for the taking of such drastic action

in visitation disputes." Id. Moreover, as distinguished from Ash, there is no evidence in the record

before this Court that Monna Touchstone refused to allow Dr. Touchstone to see his child or that

any court orders had been violated.

¶13. Relying on Newsom v. Newsom, 557 So. 2d 511 (Miss. 1990), Dr. Touchstone further contends

that Monna's allegations that he had sexually abused Wesley, not raised in any pleadings but by the

inferences she made in counseling sessions when, by her own admission, she directed the child to

demonstrate "how Daddy touches your peepee . . . ," warrant a change in custody. Newsom was a

highly-publicized case in which the mother's allegations against the father resulted in the children

being subjected to numerous physical and psychological examinations, details of which were revealed

to the press. Newsom, 557 So. 2d at 512-513. The chancellor's decision in that case to change

custody from the father to the mother was not based entirely on the fact that the mother "had

subjected the children to numerous unwarranted physical and psychological examinations, not for

treatment, but for investigation and interrogation," but also on findings that the mother had changed

jobs, residences and day care arrangements frequently after the divorce, and the daughter had

exhibited considerable stress when returned to her mother after visitations. Id. at 516. This Court

further found that the mother's "apparent instability and previous abduction of the children in defiance

of the court order" justified the chancellor's restriction of her visitation privileges under the terms of

the new custody order. Id. at 517. The record in the case sub judice sets forth no such extenuating

circumstances.

¶14. In cases where the argument for a change in custody is built upon specific isolated incidents, we

have found that "[a]n isolated incident, e.g., an unwarranted striking of a child, does not in and of

itself justify a change of custody." Smith, 654 So. 2d at 487 (quoting Tucker v. Tucker, 453 So. 2d

1294, 1297 (Miss. 1984)). Rather, "[i]n situations which appear to be isolated incidents rather than

the normal rule, this Court has stated that it must be the overall circumstances in which a child lives,

likely to remain unchanged in the foreseeable future and adversely impacting a child, to warrant a

change of custody." Tucker, 453 So. 2d at 1297. Moreover, the chancellor must have found that "the

overall circumstances in which a child lives have materially changed and are likely to remain

materially changed for the foreseeable future and, of course, that such change adversely impacts the

child." Id. Although young Wesley has been subjected to some gross unpleasantries between his

parents, the record does not remotely suggest that these episodes are characteristic of the overall

circumstances in which he lives. Whether these circumstances are likely to remain unchanged in the

foreseeable future appears to be entirely dependent upon his parents' ability to control their hostilities

toward each other when with the child.
¶15. The chancellor found that Wesley had not been so adversely affected by his parents' behavior

that a change in custody would be in his best interests. To the contrary, the chancellor stated in his

written findings of fact:

Wife has had the primary continuity of care of the minor child since the divorce with the child

daily attending St. Mary's Preschool and Day Care in Yazoo City. The Court finds from the

evidence that the minor child interacts well with his peers at St. Mary's and is a calm, observant,

playful, inquisitive, and exploratory child with advanced verbal skills for a child his age, and is a

well-rounded three-year-old. This is reflected not only from the law [sic] witnesses, but from

Mrs. Guion, Director of St. Mary's and Defendant's own expert psychiatrist, Dr. Wood Hyatt

[sic]. In fact, Dr. Hyatt [sic] commended the primary custodial parent, Wife, for responsibility

for the child's advanced verbal skills and other attributes.

Indeed, as the chancellor pointed out, Dr. Touchstone's own expert, Dr. Wood Hiatt, a child

psychiatrist, admitted that Wesley appeared to be a secure child with advanced verbal skills. We find

therefore that there is substantial evidence in the record to support the chancellor's finding that there

was no material change in circumstances adversely affecting the minor child's best interests.

V.

¶16. During the hearing, Dr. Touchstone sought to enter into evidence testimony by Rivers

Carpenter, a licenced social worker, that Monna Touchstone had prompted Wesley during an

evaluation session, taking the child by the shoulders, looking at him face to face, and telling him,

"Tell Mrs. Carpenter about what your daddy did to you. Tell Mrs. Carpenter about how he touched

you on your peepee." The chancellor, having previously overruled several objections to less specific

testimony regarding the mother's prompting because "some of the actions of the parent would not be

within the privilege," struck Carpenter's testimony as privileged pursuant to Miss. R. Evid. 503, the

Physician and Psychotherapist-Patient Privilege. Nothing in our Rules of Evidence, however, extends

that privilege to licensed clinical social workers.

¶17. Rule 503(b), the general rule of privilege, provides as follows:

A patient has a privilege to refuse to disclose and to prevent any other person from disclosing

(A) knowledge derived by the physician or psychotherapist by virtue of his professional

relationship with the patient, or (B) confidential communications made for the purpose of

diagnosis or treatment of his physical, mental or emotional condition, including alcohol or drug

addiction, among himself, his physician or psychotherapist, and persons who are participating in

the diagnosis or treatment under the direction of the physician or psychotherapist, including

members of the patient's family.

Rule 503(b) limits the privilege to communications with physicians and psychotherapists. Rule 503(a)

(3) defines "psychotherapist" as "(1) a person authorized to practice medicine . . . while engaged in

the diagnosis or treatment of a mental or emotional condition . . . or (2) a person licensed or certified

as a psychologist under the laws of any state or nation, while similarly engaged." See also Miss. Code

Ann. § 73-31-29. The definitions do not include licenced clinical social workers. Our case law has

done nothing to expand the privilege.
¶18. Miss. Code Ann. § 13-1-21 provides a privilege for communications between a patient and

physician, osteopath, dentist, hospital, nurse, pharmacist, podiatrist, optometrist or chiropractor. As

the Comment to Rule 503 explains, the statute is broader than the Rule. However, licenced clinical

social workers do not fall within the definition of any profession to which the Rule or the general

privilege afforded by the statute apply.

¶19. Licensed social workers are required to maintain the confidentiality of their client

communications pursuant to Miss. Code Ann. § 73-53-29. However, as distinguished from the

medical privilege statutes and Rule 503, the social worker-patient privilege is subject to several

exceptions, including "(e) When the licensee is called upon to testify in court or administrative

hearings concerning matters of adoption, adult abuse, child abuse, child neglect or other matters

pertaining to the welfare of clients of the licensee . . ." See Lauderdale County Department of

Human Services v. T.H.G., 614 So. 2d 377, 383 (Miss. 1992)(no exception to Rule 503 privilege in

termination of parental rights proceedings). Since the welfare of young Wesley was at issue and the

specter of child sexual abuse had been raised by his mother's inferences during psychological

evaluations of the child which she arranged, the § 73-53-29(e) exception to the privilege would have

been applicable, thus allowing Mrs. Carpenter's testimony regarding the mother's "coaching" of the

child.

¶20. The chancellor erred in refusing to admit Mrs. Carpenter's testimony pursuant to Rule 503. Even

had Mrs. Touchstone sought to exclude the testimony pursuant to § 73-53-29, the child

abuse/welfare of the client exception to the social worker-patient confidentiality requirement would

have been applicable. Since Mrs. Touchstone, herself, had testified in detail about the session and had

admitted that she had pulled down Wesley's pants and told him, "Take Mommy's hand and show me

how Daddy touches your peepee," we do not find that exclusion of Mrs. Carpenter's recollection of

the incident warrants reversal.

VI.

¶21. It is undisputed that Monna Touchstone bit Teresa Lungrin on the arm one day when Ms.

Lungrin accompanied Dr. Touchstone to pick up Wesley in Yazoo City. Both Touchstones testified

extensively about the incident as did Dr. Wood Hiatt, Dr. Touchstone's expert witness. When Teresa

Lungrin was asked on direct examination to rehash the incident, the chancellor interrupted, indicating

that the testimony was repetitive and that "we're not here to prosecute or defend Ms. Touchstone or

prosecute or defend Ms. Lungrin." The chancellor then allowed Dr. Touchstone's attorney to make a

brief proffer of what Ms. Lungrin would have testified and stated, "We've already heard all this

testimony, and let's move on."

¶22. Citing no authority, Dr. Touchstone contends that the chancellor erred in refusing to let Teresa

Lungrin testify more fully about the biting incident. We do not consider unsupported assignments of

error. Ellis v. Ellis, 651 So. 2d 1068, 1073 (Miss. 1995); Townsend v. Estate of Gilbert, 616 So. 2d

333, 336 (Miss. 1993). We note, however, that admission of evidence is within the discretion of the

chancellor, who should not be held in error for excluding repetitive and probably irrelevant evidence.

Terrain v. Mockbee, 654 So. 2d 1122, 1130 (Miss. 1995). It does not appear that the chancellor

abused his discretion in this or the other evidentiary matters raised by Dr. Touchstone without the

benefit of any authority or meaningful discussion.
VII.

¶23. In her October 4, 1994 Motion to Strike Segments of Appellant's Brief, Monna sought to delete

allegations in Touchstone's brief that two-year-old Wesley had been given beer to drink by a

neighbor, which, she claims, is unsubstantiated by the record. Dr. Touchstone defended his position

in his October 12, 1994 response to the motion. This Court will consider only those matters that

actually appear in the record and does not rely on mere assertions in briefs. American Fire

Protection, Inc. v. Lewis, 653 So.2d 1387, 1390 (Miss. 1995). The Motion to Strike, and, in all

fairness, the response to that motion, appear to us to be just another in the series of actions and

incidents the parties have used to harass each other at the child's expense, and we therefore, deny that

motion.

¶24. Placing her Motion for Attorney Fees or Appropriate Relief Pursuant to Mississippi Supreme

Court Rule 28(k) and Rule 38 in the context of the record and briefs now before this Court, Monna

Touchstone seeks to sanction her husband (or his attorneys) for what she considers to be a frivolous

appeal. Without substantiating her request, she seeks attorney fees for the fifteen hours her attorney

has spent responding to his "unsupported assertions."

¶25. Rule 38 of the Rules of Appellate Procedure provides for damages in civil appeals determined by

this Court to be frivolous. Given that there are no "good guys" in this case--the record makes it clear

that the actions of both parties and their attorneys were responsible for the initiation and perpetuation

of this litigation--and that the chancellor's ruling that allowed the exclusion of testimony by a licenced

clinical social worker on the basis of Miss. Rule Ev. 503, the patient-psychotherapist privilege, raises

questions of first impression, we deny that motion, affirming the chancellor's assessment of half of all

court costs incurred to each party. We do, however, take this opportunity to discourage attorneys

from using this Court, or the courts below, as an arena for their clients' battles -- be it through the

filing of frivolous motions or the raising of allegations unsupported by the evidence or the law.

VIII.

¶26. The evidence in the record is more a reflection of the parties' animosities toward each other than

of either's fitness as parents. Unfortunately, it appears that the child has become a pawn in his parents'

games. The record supports the chancellor's finding that there has not been a change in circumstances

warranting modification of the custody order. We further see nothing in the evidence to suggest that

the father might be able to provide a more suitable environment for young Wesley. Considering, as

we must, the best interests of the child, we affirm the chancellor's decision.

¶27. JUDGMENT IS AFFIRMED.

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

CONCUR. SULLIVAN, P.J., NOT PARTICIPATING.