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Ballard v. Ballard

Supreme Court of Mississippi

May 25, 2017

CANDICE RAE SHURDEN BALLARD
v.
JOE MARSHALL BALLARD AND TERESA ANN BALLARD

          DATE OF JUDGMENT: 02/01/2016

         DESOTO 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 CRESTMAN WILSON

          BEFORE DICKINSON, P.J., COLEMAN AND BEAM, JJ.

          COLEMAN, JUSTICE

         ¶1. 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.

         ¶2. 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[1] 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.

         FACTS AND PROCEDURAL HISTORY

         ¶3. 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).[2] 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.[3]

         ¶4. 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.

         Based on the court's order, the guardian ad litem compiled three reports detailing her interviews with twenty-one people.

         ¶5. 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 children.

         ¶6. 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 her testimony.

         ¶7. 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 --
A. Alone.
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 ...

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