Before Prather, C.j., Smith And Waller, JJ.
The opinion of the court was delivered by: Prather, Chief Justice
DATE OF JUDGMENT: 07/03/97
TRIAL JUDGE: HON. HARVEY T. ROSS
COURT FROM WHICH APPEALED: BOLIVAR COUNTY CHANCERY COURT
NATURE OF THE CASE: CIVIL - DOMESTIC RELATIONS
DISPOSITION: REVERSED AND REMANDED - 3/18/1999
STATEMENT OF THE FACTS AND CASE
¶1. EJW and JJ were married in 1975. WHW began an adulterous affair with EJW while she was married to JJ, and, in November, 1986, EJW gave birth to twins named JJJ and MBJ. EJW and JJ divorced on grounds of irreconcilable differences in 1990; EJW did not disclose her affair with WHW until after the divorce. The divorce decree found the twins to be issues of the marriage, and JJ and EJW were awarded joint custody of the children.
¶2. In 1991, WHW and EJW married. The couple obtained, without JJ's consent, blood tests which showed to a high probability that WHW was the biological father of the twins. The couple thereafter filed a paternity action to declare that WHW was the father and to terminate any parental rights which JJ had with the children. The case was tried in December, 1991, resulting in a finding that WHW was the father of the twins. On appeal, however, the Mississippi Court of Appeals reversed and remanded with additional instructions, including that EJW appear in her individual capacity, that a guardian ad litem be appointed to investigate on behalf of the children, and that a new hearing be held before the Chancellor or jury. Before the date of a second paternity trial, WHW moved for additional blood testing, which was duly ordered by the Court. JJ refused to submit to the testing, however, and the Chancellor declined either to enforce his order requiring that JJ be tested or, alternatively, to enter a default judgment in favor of WHW.
¶3. During a January 22, 1997 hearing, Diane Arnold, a licensed professional counselor, testified that the twins were in the primary custody of EJW and WHW and that, while they carried the legal surname "J", the twins themselves used the surname "W" in their dealings with friends. Arnold further testified that the twins were aware of the circumstances surrounding the paternity controversy but that the twins were very well-adjusted and "seem to have adapted to the situation that they are placed in by the adults in their lives." Arnold testified that both JJ and the Ws, who shared custody of the twins, provided a "loving, caring" environment for the children. Arnold testified that she accordingly felt it in the best interests of the twins to maintain a relationship with both the W and J families.
¶4. On cross-examination, Arnold conceded that JJJ in particular had a "hard time dealing with the name J" and that she preferred the surname W. When asked about the twins' preference as to their custody and visitation, Arnold responded:
"A: JJJ said that if she didn't have to come to Cleveland every two weeks that she would not come. She would choose not to come. MBJ said that he did not know whether he would or not. I think what they both said was that it was because of just the fact that they had things that they were doing at home, you know activities that they were participating in, that sometimes it was not convenient. It had nothing to do with whether or not they loved JJ or not."
"Q: These are children that you diagnosed as being intelligent, flexible, adaptive, and not disturbed and no ...