OF JUDGMENT: 02/01/2016
COUNTY CHANCERY COURT HON. PERCY L. LYNCHARD, JR.
ATTORNEYS FOR APPELLANT: JERRY WESLEY HISAW H. R. GARNER
ATTORNEYS FOR APPELLEES: A. E. (RUSTY) HARLOW, JR. KATHI
DICKINSON, P.J., COLEMAN AND BEAM, JJ.
Appellant Candice Ballard and Appellee Joe Marshall Ballard
were married in 2006. The parties' marriage was turbulent
at best, and they ultimately agreed to an irreconcilable
differences divorce with the chancery court to decide issues,
among others, of child custody and visitation, equitable
division of property, and attorneys' fees. The chancery
court entered a final order in the matter in 2016.
The bulk of Candice's appeal revolves around the chancery
court's order denying her custody of the parties'
three minor children based upon the chancery court's
determination that both Candice and Marshall were
"unfit" and that neither should be awarded custody
pursuant to Mississippi Code Section 93-5-24-(9)(a)(ii) (the
"family-violence presumption"). The chancery court
awarded custody to the Mississippi Department of Human
Services but placed the children with Marshall's parents.
Candice challenges the custody decision, arguing the
chancellor relied strictly on hearsay to establish her
"unfitness" and history of family violence. Candice
also claims error in the division of the marital estate
because the chancellor failed to apply the
Ferguson factors. Further, Candice argues she
should have received attorney's fees because her parents
paid her fees, and she must pay them back. Finally, Candice
alleges the chancery court failed to decree possession of the
lot upon which the marital home had been situated before its
destruction by fire. As to the issues of custody and division
of the marital estate, we reverse and remand; with respect to
attorney's fees, we affirm.
AND PROCEDURAL HISTORY
On June 10, 2006, Candice and Marshall married in Ashland,
Mississippi. Three children were born during the marriage:
(1) Jane (born in 2007); (2) John (born in 2009); and (3)
Jill (born in 2011). Neither party disputes the fact that
Marshall is not the biological father of Jill, who was born
as a result of a marital-separation affair.
On January 5, 2015, Marshall filed a Complaint for Divorce,
and Candice filed an answer and countercomplaint on January
27, 2015. The chancery court appointed a guardian ad litem,
directing the guardian ad litem to investigate allegations of
neglect surrounding the children and prepare a report
concerning her investigation. The order also provided that,
the GAL will be designated as an expert witness under Rule
706 of the Mississippi Rules of Evidence . . . [t]herefore,
the opinions and recommendations offered by the GAL, and the
factual basis derived in the course of the investigation,
shall be governed by Rule 702, Rule 703, Rule 803(6), (8),
(24) & (25); and Rule 804 of the Mississippi Rules of
Evidence, and any other applicable rules governing the
presentation of expert opinions.
on the court's order, the guardian ad litem compiled
three reports detailing her interviews with twenty-one
Relevant to our discussion, the guardian ad litem's
interviews uncovered multiple anecdotes that detailed
domestic violence within the home. Specifically, the guardian
ad litem noted she felt "that the fighting was a result
of the actions and attitudes of both parties, although it
does appear that Marshall was often the party that escalated
to physical violence." The guardian ad litem specified
there was no evidence that either parent ever physically
abused the children. Even though some of the interviews
detailed fighting between the couple, as to the
family-violence presumption, the guardian ad litem stated she
"does not feel that the presumption would apply to the
facts of this case." Moreover, the guardian ad litem
recommended the parties share joint legal custody of the
The case went before the chancery court on February 16, 2016.
The guardian ad litem testified at trial extensively as to
the findings in her three reports, which consisted entirely
of interviews. Candice lodged numerous objections, arguing
the guardian ad litem's testimony on what she was told in
interviews constituted hearsay. The chancery court overruled
the objections and allowed the guardian ad litem to present
evidence from her reports, including interviews with the
children outlining domestic abuse witnessed and the often
poor conditions of the home and lack of food on many
occasions. The guardian ad litem additionally testified about
her interviews with school officials regarding their
interactions with Marshall and Candice, with the school
officials favoring Marshall as the more concerned and
involved parent - a finding that Candice vehemently denied in
The parties put on evidence regarding the division of marital
property. Finally, Candice testified about her request for
attorney's fees. The following exchange took place
between Marshall's counsel and Candice:
Q. Mr. Garner is a very good attorney, and he's been paid
by your parents, right, your mother?
A. Uh-huh. Yes.
Q. Okay. And --
Q. What are you supposed to do about that? Are you going to
be paying your mother back?
A. I sure am.
Q. How are you going to do ...