168 So. 3d 1085
Miss. Ct. App.2013Background
- Darby Carson and Jesse Butler divorced in 2009; Butler was awarded physical custody of their daughter Aubrey (born Dec. 16, 2008) and the parties shared joint legal custody.
- An agreed order later modified Carson’s visitation; in Aug. 2010 Carson filed for contempt and custody modification alleging Butler exposed Aubrey to alcohol and was not providing primary care.
- Butler counterclaimed for contempt and sought sole custody, alleging Carson exposed Aubrey to alcohol, left her with others, and failed to return the child after visitations.
- A trial in Feb. 2011 produced a temporary visitation order; at final hearing the chancery court found no substantial adverse material change and denied custody modifications, adopting the temporary visitation schedule permanently.
- Carson appealed, arguing the chancery court erred in (1) failing to find a material change in circumstances and (2) refusing to increase her visitation.
Issues
| Issue | Plaintiff's Argument (Carson) | Defendant's Argument (Butler) | Held |
|---|---|---|---|
| Whether there was a material change in circumstances warranting custody modification | Butler’s multiple romantic relationships, drinking/parties, and leaving Aubrey in daycare/with relatives show a material change harming Aubrey | Butler maintained his home is stable, he loves Aubrey, had curbed partying, and changes did not harm Aubrey | No material adverse change found; chancery’s refusal to modify custody affirmed |
| Whether visitation should be increased | Current schedule is inadequate; Butler forces Carson to relinquish time and his work limits care, so more visitation is in Aubrey’s best interest | Butler’s schedule and the existing order provide sufficient and stable visitation; parties may agree to additional time | Visitation award (more than standard liberal visitation) affirmed; chancery did not abuse discretion |
Key Cases Cited
- Bryant v. Bryant, 105 So.3d 1146 (Miss. Ct. App. 2012) (appellate standard for custody modification findings)
- White v. White, 26 So.3d 342 (Miss. 2010) (standard for reviewing chancery findings)
- Albright v. Albright, 437 So.2d 1003 (Miss. 1983) (best-interest-of-the-child is controlling in custody matters)
- Sullivan v. Sullivan, 102 So.3d 1194 (Miss. Ct. App. 2012) (two-part test for custody modification: material change and best interest)
- Cantin v. Cantin, 78 So.3d 943 (Miss. Ct. App. 2012) (consider totality of circumstances for material-change inquiry)
- Tidmore v. Tidmore, 114 So.3d 753 (Miss. Ct. App. 2013) (visitation is within chancery court’s discretion)
- Marshall v. Harris, 981 So.2d 345 (Miss. Ct. App. 2008) (defines a minimum liberal visitation benchmark)