192 So. 3d 317
Miss. Ct. App.2015Background
- Parents divorced in 2004; joint legal and physical custody originally; Greg was awarded physical custody in 2010 after a prior modification.
- In 2013 Catherine petitioned for contempt and asked to modify custody to obtain more time with their son Gavin; Greg counterclaimed for contempt and increased support.
- Trial held June 6, 2014; chancellor denied contempt claims but modified custody, awarding joint legal and joint physical custody and ordering Greg to pay $300/month support and keep health insurance.
- Chancellor relied heavily on Gavin’s testimony that he wanted alternate-week custody and on perceived emotional effects caused by Greg’s strict enforcement of the visitation order.
- Majority reversed, holding the chancellor erred because she did not identify a material change in the custodial home, did not find an adverse effect on the child, and failed to apply the Albright best-interest factors; concurrence would remand because a material change arguably was shown.
Issues
| Issue | Catherine's Argument | Greg's Argument | Held |
|---|---|---|---|
| Whether a material change in custodial-home circumstances occurred since the last custody decree | Greg’s strict, inflexible enforcement of visitation and conduct hurt Gavin and thus created a material, adverse change | No material change; evidence did not show harm or changed custodial-home conditions | No — majority: record lacks proof of a material change in Greg’s home that adversely affects Gavin; reversal and render |
| Whether the adverse-effect requirement was satisfied | Gavin’s testimony and alleged ‘‘rebellious’’ behavior show adverse emotional impact | Gavin’s ‘‘hurt feelings’’ do not rise to the required adverse effect on mental/emotional health | Not sufficiently shown — majority |
| Whether the chancellor applied Albright best-interest factors | Modification was justified; child’s preference and emotional harm implicated best interests | Chancellor failed to make required Albright analysis; thus modification unsupported | Reversed because Albright factors were not addressed (remedy: majority renders; concurrence would remand) |
| Whether visitation modification would have been appropriate instead of custody change | Catherine sought more liberal visitation; child wanted more time with mother and siblings | Greg relied on court order and concerns about mother’s home; argued custody change unnecessary | Majority: visitation modification would have been an appropriate, less drastic remedy than changing custody |
Key Cases Cited
- Powell v. Powell, 976 So.2d 358 (Miss. Ct. App. 2008) (elements for custody modification: material change, adverse effect, best interest)
- Giannaris v. Giannaris, 960 So.2d 462 (Miss. 2007) (modification must be based on conduct posing danger to child’s mental or emotional health)
- Bredemeier v. Jackson, 689 So.2d 770 (Miss. 1997) (adverse effect must be separately and affirmatively determined)
- Albright v. Albright, 437 So.2d 1003 (Miss. 1983) (Albright factors govern child’s best-interest analysis)
- White v. White, 26 So.3d 342 (Miss. 2010) (after finding adverse material change, apply Albright factors)
- A.M.L. v. J.W.L., 98 So.3d 1001 (Miss. 2012) (no need to consider adverse-effect and Albright unless material change shown)
- In re E.C.P., 918 So.2d 809 (Miss. Ct. App. 2005) (child preference alone, without more, does not constitute material change)
- Best v. Hinton, 838 So.2d 306 (Miss. Ct. App. 2002) (child preference unsupported by other proof insufficient for custody change)
- Cox v. Moulds, 490 So.2d 866 (Miss. 1986) (standard for modifying visitation: prior decree not working and change is in best interests)