287 So.3d 303
Miss. Ct. App.2019Background
- Kendra Munday and Robert McLendon divorced in 2013; original agreement awarded Kendra primary physical custody and Robert alternating visitation (including five weeks in summer) and joint legal custody.
- Kendra moved from Leakesville, Mississippi to Abbeville, Louisiana on December 1, 2016; Robert alleged she failed to notify him of address/school information and interfered with visitation and communication.
- Robert filed for modification and contempt in December 2016, alleging missed make-up visitations, withheld contact, and that the child arrived at his home with severe sunburns, flea bites, and poor hygiene; the GAL was appointed and a temporary order issued.
- The GAL investigated, interviewed both homes, noted excessive school absences in Louisiana, possible parent-coaching, communication breakdowns, and recommended modification of physical custody to Robert after applying the Albright factors.
- Trial occurred February 1, 2018 after the chancellor denied Kendra’s last-minute continuance request to obtain the GAL report; the chancellor adopted the GAL report, found a material change in circumstances adversely affecting the child, awarded physical custody to Robert (joint legal custody retained), found Kendra in civil contempt for denying visitation, and ordered Kendra to pay reduced child support.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a material change in circumstances justified modifying custody | Kendra: relocation alone/changes did not constitute material change and chancellor did not specify the material change | Robert: totality of circumstances (move, missed school, hygiene, communication breakdown, removal from family) constituted material change adversely affecting child | Court: Affirmed — totality of circumstances (as found and adopted from GAL) constituted a material change that adversely affected the child |
| Whether the chancellor properly applied Albright factors in awarding physical custody to Robert | Kendra: many factors neutral or favored mother; chancellor misweighed factors | Robert: Albright factors (parenting skills, school/community record, stability) favor father given evidence of absences, hygiene concerns, proximity to extended family | Court: Affirmed — chancellor’s Albright analysis reasonably weighed credibility and evidence; several factors favored Robert, one favored Kendra, others neutral |
| Whether denial of continuance to allow Kendra to review GAL report was an abuse of discretion | Kendra: she lived far away, lacked opportunity to review GAL report and submit evidence on absences; denial caused manifest injustice | Robert: counsel had report, trial proceeded; no contemporaneous objection at trial and no evidence showing manifest injustice | Court: Affirmed — denial within discretion; counsel waived objections by not objecting at trial; Kendra failed to show manifest injustice |
Key Cases Cited
- Smith v. Smith, 97 So. 3d 43 (Miss. 2012) (standard of appellate review for custody decisions)
- Albright v. Albright, 437 So. 2d 1003 (Miss. 1983) (listing factors for custody determination)
- Powell v. Powell, 976 So. 2d 358 (Miss. Ct. App. 2008) (elements required to modify custody)
- Bredemeier v. Jackson, 689 So. 2d 770 (Miss. 1997) (need to show material change that adversely affects child before modification)
- Robinson v. Brown, 58 So. 3d 38 (Miss. Ct. App. 2011) (relocation’s impact as a factor in modification analysis)
- White v. White, 26 So. 3d 342 (Miss. 2010) (apply Albright after finding material change)