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Thompson v. Zillinger

June 25, 1998

THOMPSON
v.
ZILLINGER



Before Prather, C.j., Banks And Smith, JJ.

The opinion of the court was delivered by: Smith, Justice, For The Court:

TINA ZILLINGER THOMPSON v. SAM ZILLINGER, ALLEN ZILLINGER AND MAGGIE ZILLINGER

THIS OPINION IS NOT DESIGNATED FOR PUBLICATION AND MAY NOT BE CITED, PURSUANT TO M.R.A.P. 35-A

DATE OF JUDGMENT: 11/19/96

TRIAL JUDGE: HON. JANE R. WEATHERSBY

COURT FROM WHICH APPEALED: WASHINGTON COUNTY CHANCERY COURT

NATURE OF THE CASE: CIVIL - DOMESTIC RELATIONS

As in most child custody cases, there are numerous parties involved in the case at bar. The child whose custody is at issue is M.Z. *fn1 , the five-year-old daughter of Tina Zillinger Thompson (Tina) and Sam Zillinger (Sam). From a prior marriage, Tina has two boys, R.F., eleven years old, and N.F., nine years old. Tina and Sam are now divorced and Tina is remarried to Terry Thompson. Tina and Terry do not have any children together. Tina's mother is Laura Moore. Sam's parents are Maggie and Allen Zillinger.

There are also numerous experts involved in this case. Paul Davey is a licensed professional counselor with the Adolescent Child and Family Clinic in Jackson, Mississippi. Mr. Davey is the Court-appointed psychological expert and has provided counseling to M.Z. since February 1995. Dr. Patricia Gaines is also a licensed professional counselor who has provided therapy and counseling to both Sam and M.Z. However, the record does not indicate Dr. Gaines' place of employment. Sue Frothingham is a licensed professional counselor with the Community Counseling Center in Greenville, Mississippi. Ms. Frothingham has provided counseling to R.F. and N.F. Brenda Chance Donald is a licensed clinical social worker at the Shepherd's Staff Counseling Ministries in Jackson, Mississippi. Ms. Donald has seen Tina, Terry Thompson, Laura Moore, R.F. and N.F. on three (3) occasions for two (2) hours each time. Ms. Donald was called by Tina as an expert witness. The Washington County Chancery Court entered a Final Decree of Divorce and Temporary Order as to Child Custody on September 28, 1995, nunc pro tunc , June 29, 1995, wherein Tina and Sam were granted a divorce based upon irreconcilable differences and temporary custody of M.Z. was granted to Sam, to be exercised by him with the assistance and participation of the paternal grandparents, Maggie and Allen Zillinger. By the terms of this Order, Tina was granted the right to supervised visitation with M.Z., and Tina was further prohibited from having M.Z. in the presence of her half-brother, R.F. This Order specifically found that "[M.Z.] has been sexually abused on more than one occasion by her older half-brother, [R.F.], child of [Tina] from a previous marriage, while entrusted by this Court unto [Tina]'s care and custody and despite its Order against contact between [R.F.] and [M.Z.]" Additionally, a supplemental hearing was scheduled for October 1995, whereby the parties could present further evidence touching upon the care and custody of M.Z.

Pursuant to the October 1995 hearing and by Order dated October 30, 1995, nunc pro tunc , October 17, 1995, the Washington County Chancery Court granted permanent custody of M.Z. to Sam. Additionally, Tina was granted the right to unsupervised visitation with M.Z., however, Tina was still prohibited from allowing M.Z. to have contact with R.F. Also, by virtue of this Order, Tina and Sam were directed to select and follow the recommendations of respective therapists for themselves and M.Z., as recommended by Paul Davey.

On July 9, 1996, Tina filed a Petition for Citation for Contempt, wherein she requested "that [Sam Zillinger] be cited for contempt for his failure to abide by the terms of the Final Decree." Specifically, Tina alleged that Sam had "not followed the recommendations of respective therapists as recommended by Paul A. Davey in his letter of May 16, 1996, wherein Mr. Davey recommends that Sue Frothingham begin seeing [M.Z.] individually." Although there is no copy in the court records, the court transcript reveals that on July 16, 1996, Sam filed a Response and Counter-Petition to Tina's Petition. Thereafter, on November 18, 1996, Tina filed a Motion to Modify Final Decree wherein she asked that she be given custody of M.Z. Tina alleged there had been a material change of circumstances and that information had been made available indicating that Sam's conduct was so immoral as to be detrimental to M.Z.

On November 19, 1996, a hearing to address the above referenced Motions was held in the Chancery Court of Sunflower County, Honorable Jane R. Weathersby presiding. By Order dated December 12, 1996, nunc pro tunc , November 19, 1996, Chancellor Weathersby found Tina to be in contempt for allowing contact between M.Z. and R.F. contrary to the Court's prior Order. The chancellor further found that Tina failed to demonstrate by a preponderance of the evidence that material and significant changes in circumstances which are adverse to M.Z.'s interests warranted a change in M.Z.'s custody from Sam to Tina. It was further ordered that Tina be granted supervised visitation with M.Z. and that Tina shall not permit or cause any contact between M.Z. and R.F.

On December 18, 1996, Tina filed a Motion to Reconsider wherein she averred that the chancellor's ruling was against the overwhelming weight of the evidence and totally inconsistent with the law as it pertains to child custody and visitation. In addition, by letter dated January 24, 1997, Tina's attorney, Honorable Nick Crawford, requested that the chancellor provide "Findings of Fact and Conclusions of Law used in her ruling, as set forth by Rule 52(a) of the Mississippi Rules of Civil Procedure." Tina's Motion to Reconsider was denied by Chancellor Weathersby on January 30, 1997.

Aggrieved by the lower court's decision, Tina appeals, by and through her attorney, and raises the following issues:

I. WHETHER THE LOWER COURT'S RULING IS AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE SUBMITTED AT THE ...


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