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Clark v. Earp

Court of Appeals of Mississippi

August 1, 2017

CANDI CLARK APPELLANT
v.
JAMES DEREK EARP APPELLEE

          DATE OF JUDGMENT: 03/03/2016

         PONTOTOC COUNTY CHANCERY COURT HON. JOHN ANDREW HATCHER TRIAL JUDGE

          ATTORNEY FOR APPELLANT: TOMMY WAYNE DEFER.

          ATTORNEYS FOR APPELLEE: MICHAEL SPENCER CHAPMAN JASON D. HERRING.

          BEFORE GRIFFIS, P.J., WILSON AND WESTBROOKS, JJ.

          GRIFFIS, P.J.

         ¶1. Candi Clark appeals the chancellor's modification of custody. We find no error and affirm.

         FACTS AND PROCEDURAL HISTORY

         ¶2. Candi and James "Derek" Earp are the natural parents of Carly, born in 2007, and Chris, born in 2008.[1] 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.

         ¶3. 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.

         ¶4. 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.[2]

         ¶5. 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.

         ¶6. 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.

         ¶7. 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.

         ¶8. 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, their ...


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