OF JUDGMENT: 03/03/2016
COUNTY CHANCERY COURT HON. JOHN ANDREW HATCHER TRIAL JUDGE
ATTORNEY FOR APPELLANT: TOMMY WAYNE DEFER.
ATTORNEYS FOR APPELLEE: MICHAEL SPENCER CHAPMAN JASON D.
GRIFFIS, P.J., WILSON AND WESTBROOKS, JJ.
Candi Clark appeals the chancellor's modification of
custody. We find no error and affirm.
AND PROCEDURAL HISTORY
Candi and James "Derek" Earp are the natural
parents of Carly, born in 2007, and Chris, born in
2008. On February 6, 2012, an agreed order was
entered awarding Candi and Derek joint legal custody of the
minor children, with Candi having physical custody.
In 2012, Candi and the children moved in with Candi's
boyfriend, Bobby Joe Chilcutt. On December 3, 2013, Bobby
severely beat Candi and held her hostage in the home for
approximately sixteen hours. Candi and the children
subsequently moved in with her aunt. However, four months
later, Candi and the children moved back in with Bobby.
Although Bobby was charged with felony aggravated assault,
Candi chose not to pursue the charge.
On April 15, 2014, Derek filed a "complaint for
emergency relief, contempt, modification of custody [and]
other relief" and sought custody of the children.
Thereafter, on April 17, 2014, an order was entered wherein
the parties agreed not to have "overnight guests of the
opposite sex, not related by blood and marriage, while the
minor children [were] in his/her care, custody and
control." However, the record shows Candi disregarded
this order and continued to live with Bobby and allow him to
be present around her children.
Candi subsequently filed an answer to Derek's complaint
and a counterclaim for contempt and modification. In her
counterclaim, Candi claimed Derek had failed to pay child
support and that the original agreed order did not address
payment of extracurricular activities and school expenses. As
a result, Candi moved to modify the original agreed order to
address the additional expenses. Candi further moved for the
appointment of a guardian ad litem (GAL). A GAL was
thereafter appointed in August 2014.
On August 27, 2015, Bobby severely beat Candi again and
choked her until she became unconscious. Additionally, Bobby
hit Candi's nephew in the face and threw his own son over
the couch by the neck. All of this occurred in front of
Carly. Law enforcement was called, and Bobby was charged with
domestic aggravated assault. Candi was subsequently granted a
restraining order against Bobby.
Derek filed a motion for emergency relief on September 16,
2015, and sought "emergency and/or temporary physical
custody" of the children. Following an emergency
hearing, the chancellor denied Derek's motion.
Specifically, the chancellor found as follows:
The Court finds that whatever emergency may have existed was
with the presence of [Bobby]. He's out of the home.
He's agreed to be permanently restrained and is
permanently restrained from being around [Candi] or the
children, and any danger that may have existed as a result of
that is not a threat now to the children, based on the
evidence that I have heard so far. There are some concerns,
but that's not the same thing as evidence. That may prove
to be the case when we have a hearing on the merits. This is
not a determination, a res judicata determination . . . .
[T]hough that may change completely on a hearing on the
merits, right now, the Court finds there is no emergency that
warrants a change of custody of the children, and, therefore,
the request for that is denied at this particular time.
A trial on the merits was held beginning December 9, 2015.
During trial, Candi testified that Bobby did not regularly
threaten violence or use profanity in front of the children.
However, multiple videos were admitted into evidence from
various visitation exchanges between Candi and Derek, which
showed Bobby's violent behavior in front of the children.
After Candi was confronted with this evidence, she
acknowledged Bobby's violent nature, but stated,
"[Bobby] was only like that towards [her] and them,