Eleridge E. McCracking, Jr. v. Vivian McCracking Brown Champaigne
Annotate this Case
Download PDF
IN THE COURT OF APPEALS
OF THE
STATE OF MISSISSIPPI
NO. 2000-CA-01030-COA
ELERIDGE E. MCCRACKING, JR.
v.
VIVIAN MCCRACKING BROWN CHAMPAIGNE
DATE OF TRIAL COURT
JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEY FOR APPELLANT:
ATTORNEY FOR APPELLEE:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
APPELLANT
APPELLEE
06/13/2000
HON. THOMAS WRIGHT TEEL
HARRISON COUNTY CHANCERY COURT
JULIET LAWSON JOWETT
MACK A. BETHEA
CIVIL - DOMESTIC RELATIONS
ELERIDGE MCCRACKING ADJUDGED IN CONTEMPT
OF COURT. VISITATION OF ELDEST DAUGHTER
TERMINATED.
DISPOSITION:
AFFIRMED -10/23/01
MOTION FOR REHEARING FILED: 11/7/2001; denied 1/22/2002
CERTIORARI FILED:
MANDATE ISSUED:
2/12/2002
BEFORE KING, P.J., BRIDGES, AND IRVING, JJ.
KING, P.J., FOR THE COURT:
¶1. This is an appeal from a final judgment, and a denial of motion for reconsideration against Eleridge E.
McCracking, Jr. (McCracking) in the Harrison County Chancery Court. McCracking was found in
contempt of court for failing to pay adjudicated child support of $540 and medical expenses in the amount
of $85.82. The court also granted Mrs. Vivian McCracking Brown Champaigne (Champaigne) a judgment
against McCracking in the amount of $625.82 and required that McCracking be responsible for certain
counseling costs and attorney's fees. Both parties were to refrain from speaking disparagingly of one
another in front of the children. The court also suspended McCracking's rights to visitation with one of the
minor children. Aggrieved by the court's ruling, McCracking has appealed and stated his issues as follows:
I. Whether the lower court abused its discretion in finding McCracking in contempt of court;
II. Whether the lower court abused its discretion by taking all of McCracking's visitation
rights with his eldest daughter;
III. Whether the lower court abused its discretion by ordering McCracking to pay child
support for his eldest daughter of whom he had no legal custody or right to visitation, and
who refused visitation with him;
IV. Whether the lower court abused its discretion by refusing to find Champaigne in
contempt of court for refusing to allow visitation and failing to provide income tax
information;
V. Whether the lower court committed reversible error by allowing an audiotape into
evidence that was admittedly a copy that had been compiled by Champaigne from her home
and office then dubbed to indicate the dates when the calls were made with no showing that
the original was not available or that the copy was an authentic copy; and
VI. Whether the lower court committed reversible error by relying on a letter written by the
psychologist appointed to give therapy to McCracking and his eldest daughter when the
psychologist did not provide the therapy, but conferred with a clinical social worker who had
interviewed them.
FACTS
¶2. The McCrackings were divorced on September 15, 1992. Mrs. Champaigne was awarded custody of
the couple's two minor children. There was one child, Rebecca, born of the marriage and Jessica, born to
Mrs. Champaigne prior to the marriage but adopted by Mr. McCracking during the marriage. Since their
divorce, the parties have returned to court several times regarding the custody and support of the minor
children.
¶3. By 1995, Jessica refused visitation with McCracking. As a result, the court entered an agreed order
which (1) allowed Jessica to visit McCracking when she desired and (2) made Mrs. Champaigne
responsible for Jessica's support. In December 1996, McCracking filed a motion for contempt and
modification seeking custody of the minor children. Mrs. Champaigne filed her response and counterclaim
alleging continued harassment as well as failure to pay child support.
¶4. The court required psychological evaluations of Mr. McCracking, Mrs. Champaigne and Jessica and
set this petition for an August 13, 1998 hearing. On November 5, 1998, the court ordered that Mrs.
Champaigne have primary custody of the minor children and that Mr. McCracking resume paying child
support for both children in the amount of $775 per month.
¶5. After a June 11 and June 14, 1999 hearing on the parties' respective requests for contempt citations, the
chancellor temporarily suspended visitation between McCracking and Jessica pending their counseling by
Dr. Simone, a psychologist. On September 30, 1999, the chancellor entered an order which (1) held
McCracking in contempt for failure to pay child support and medical expenses; (2) suspended his rights to
visitation with Jessica; and (3) detailed his visitation schedule with Rebecca.
ISSUES AND ANALYSIS
I.
Whether the lower court abused its discretion in finding McCracking in contempt of court.
¶6. McCracking argues that he was not in arrears on child support, and therefore should not have been held
in contempt of court for an arrearage of child support nor for deducting twenty dollars per month from his
support payments. McCracking alleges that under the order of January 18, 1995, he was allowed to deduct
twenty dollars per month from child support payments as reimbursement for monies owed to him by Mrs.
Champaigne. However, Mrs. Champaigne established that she had paid McCracking in full.
¶7. A party may not unilaterally alter or modify his child support obligation. Cumberland v. Cumberland,
564 So. 2d 839, 847 (Miss. 1990). Once child support payments are past due they become vested and
cannot be modified. Thurman v. Thurman, 559 So. 2d 1014, 1016 (Miss. 1990). A citation for contempt
is proper when "the contemner has willfully and deliberately ignored the order of the court." Bredemeier v.
Jackson, 689 So. 2d 770, 777 (Miss. 1997). Child support obligations may be enforced by the court's
contempt powers. Lahmann v. Hallmon, 722 So. 2d 614 (¶19) (Miss. 1998). However, inability to
comply with the court's order is a defense to an action for contempt. The court found that McCracking had
not paid the requested child support, and that he was not unable to comply with the court's order. This
finding is supported by the record before this Court.
¶8. A citation for contempt is determined upon the facts of each case and is a matter for the trier of fact.
Milam v. Milam, 509 So. 2d 864, 866 (Miss. 1987). It is committed to the sound discretion of the trial
court, and this Court will not reverse where the chancellor's findings are supported by substantial credible
evidence. Ligon v. Ligon, 743 So. 2d 404 (¶5) (Miss. Ct. App. 1999).
II.
Whether the lower court abused its discretion by taking all of McCracking's visitation rights
with his eldest daughter.
III.
Whether the lower court abused its discretion by ordering McCracking to pay child support
for his eldest daughter of whom he had no legal custody or right to visitation, and who
refused visitation with him.
¶9. Because issues II and III are interwoven, we have addressed them jointly.
¶10. McCracking alleges that the suspension of his visitation with Jessica was a constructive termination of
parental rights and an abuse of discretion. McCracking suggests that this constructive termination of
parental rights was not supported by the evidence, and done without full regard for the respective rights of
the parties.
¶11. Visitation and the restrictions placed upon it are within the discretion of the chancery court. Newsom
v. Newsom, 557 So. 2d 511, 517 (Miss. 1990); Clark v. Myrick, 523 So. 2d 79, 83 (Miss. 1988). While
visitation between parent and child is to be encouraged, Suess v. Suess, 718 So. 2d 1126 (¶15) (Miss. Ct.
App. 1998), it must always be governed by the best interest of the child. Id. The chancellor recognized a
significant impairment of the relationship between McCracking and Jessica. In an effort to address this
matter, the chancellor required that the parties attend and successfully complete parenting classes offered
by the local mental health agency, or an equivalent program. The court also directed that when feasible,
Jessica should be included in these counseling sessions.
¶12. The court found that McCracking failed to make a genuine effort to repair his relationship with Jessica,
and accordingly directed a cessation of visitation. The chancellor mandated that, notwithstanding the
cessation of visitation, McCracking was to continue providing support for Jessica. The court determined
that while McCracking's relationship with his eldest daughter had deteriorated, that did not relieve him of the
responsibility to provide child support.
¶13. In Caldwell v. Caldwell, 579 So. 2d 543, 548 (Miss. 1991), the court stated that:
The amount of money that the noncustodial parent is required to pay for the support of his minor
children should not be determined by the amount of love the children show toward that parent. The
proper inquiry, as we have often stated, is what is in the best interest of the child. In reaching that
conclusion, the chancellor must balance the needs of the child against the parent's financial ability to
meet those needs. (quoting Holston v. Holston, 58 Md. App. 308, 473 A. 2d 459, 463 (1984),
cert. denied, 300 Md. 484, 479 A. 2d 372 (1984)).
The court noted that it was in the best interest of the child that she continue to receive child support from
McCracking, and that the public policy of this State does not countenance the voluntary termination of
parental rights for the sole purpose of avoiding child support.
¶14. The record supports the chancellor's findings and this Court accordingly finds no abuse of the
chancellor's discretion.
IV.
Whether the lower court abused its discretion by refusing to find Champaigne in contempt of
court for refusing to allow visitation and failing to provide income tax information.
¶15. McCracking alleges that the trial court should have found Mrs. Champaigne in contempt of court for
refusing to allow visitation and not providing income tax information. The chancellor made specific findings
on each of these matters. Where the chancellor's findings of fact are supported by substantial evidence, and
not contrary to law, this Court is obligated to defer to them. Holloman v. Holloman, 691 So. 2d 897, 898
(Miss. 1996).
¶16. As to the issue of visitation, the chancellor stated:
Eleridge also states that Vivian denied him several visitations. Rather than going through the testimony,
suffice it to say, his argument is technically plausible but equitably incorrect. Basically, the provision
about holiday visitation relates an even year-odd year visitation schedule for the father, however, it
fails to state, as would generally be implied in this jurisdiction, that the mother has the alternative
schedule. Then he uses the weekend provision to state the mother denied him weekend visitation
during three holidays.
¶17. On the issues of the tax information, the chancellor observed:
The Court did not find Mrs. Champaigne in contempt for her failure to furnish the tax information to
the Defendant because her behavior, when compared to that of the Defendant, was relatively mild and
did not warrant a contempt finding.
¶18. Because both of these findings are supported by substantial evidence, this Court finds no abuse of
discretion in this assignment of error.
V.
Whether the lower court committed reversible error by allowing an audiotape into evidence
that was admittedly a copy that had been compiled by Champaigne from her home and office
then dubbed to indicate the dates when the calls were made with no showing that the original
was not available or that the copy was an authentic copy.
¶19. McCracking alleges prejudice by entry of the audiotape into evidence and by allowing the witnesses to
rely on its contents in forming their opinions of him and his relationships with his children, when the tape was
not authenticated.
¶20. Mississippi Rules of Evidence 901(a) states that:
The requirement of authentication or identification as a condition precedent to admissibility is satisfied
by evidence sufficient to support a finding that the matter in question is what its proponent claims.
¶21. The tapes were introduced into evidence after counsel for both parties questioned Mrs. Champaigne
regarding the origin of the tapes. The chancellor determined that the tapes complied with the evidentiary
rules and allowed the tapes to be entered into evidence.
¶22. In Rushing v. Rushing, 724 So. 2d 911 (¶11) (Miss. 1998), the court stated:
The relevance and admissibility of evidence are largely within the discretion of the trial court and
reversal may be had only where that discretion has been abused . . . . Unless the trial judge's
discretion is so abused as to be prejudicial to a party, this Court will not reverse his ruling. Stewart v.
Stewart, 645 So. 2d 1319, 1320 (Miss. 1994) (quoting Century 21 Deep S. Properties v. Corson,
612 So. 2d 359, 369 (Miss. 1992)).
Finding no abuse of that discretion, we hold this issue to be without merit.
VI.
Whether the lower court committed reversible error by relying on a letter written by the
psychologist appointed to give therapy to McCracking and his eldest daughter when the
psychologist did not provide the therapy, but conferred with a clinical social worker who
interviewed them.
¶23. McCracking contends that the court erred in relying on a letter written by a psychologist who did not
provide therapy to McCracking and Jessica together. McCracking argues that the letter was the basis of the
court's opinion that all visitation should stop.
¶24. This is expert testimony and covered by Rules 702 and 703 of the Mississippi Rules of Evidence,
which provide:
Rule 702. Testimony by Experts
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the
evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill,
experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the
testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles
and methods, and (3) the witness has applied the principles and methods reliably to the facts of the
case.
Rule 703. Bases of Opinion Testimony by Experts
The facts or data in the particular case upon which an expert bases an opinion or inference may be
those perceived by or made known to the expert at or before the hearing. If of a type reasonably
relied upon by experts in the particular field in forming opinions or inferences upon the subject, the
facts or data need not be admissible in evidence in order for the opinion or inference to be admitted.
Facts or data that are otherwise inadmissible shall not be disclosed to the jury by the proponent of the
opinion or inference unless the court determines that their probative value in assisting the jury to
evaluate the expert's opinion substantially outweighs their prejudicial effect.
Because Rule 703 specifically allows expert opinion to be based upon second hand information, this issue is
without merit.
¶25. THE JUDGMENT OF THE CHANCERY COURT OF HARRISON COUNTY IS
AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.
McMILLIN, C.J., SOUTHWICK, P.J., BRIDGES, THOMAS, LEE, IRVING, MYERS,
CHANDLER AND BRANTLEY, JJ., CONCUR.
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
