287 So.3d 980
Miss. Ct. App.2019Background
- R.M. (born July 2014) lived with mother Randi Butler under an agreed January 12, 2015 chancery-court order granting Butler physical custody and joint legal custody.
- Father Joseph Mozingo filed to modify custody (Mar. 24, 2017), alleging a material change: Butler moved five times since R.M.’s birth and showed financial/household instability.
- Trial (Mar. 8, 2018) produced testimony that Butler had five distinct residences, a second child for whom she alone provided, some financial-reporting errors, a prior license suspension, and an earlier misdemeanor arrest (pre-R.M. birth).
- Evidence also showed the week-on/week-off schedule then in place had been working; multiple witnesses (including Mozingo) described R.M. as healthy, active, and doing well.
- The chancellor found a material change and that it adversely affected R.M., reapplied the Albright factors, and awarded physical custody to Mozingo.
- The Court of Appeals held the record supports a material-change finding but lacks substantial evidence the change adversely affected R.M.; it reversed and rendered the custody modification.
Issues
| Issue | Plaintiff's Argument (Butler) | Defendant's Argument (Mozingo) | Held |
|---|---|---|---|
| Whether a material change in the custodial home occurred | Moves alone do not constitute a material change | Five moves + financial instability + household instability show material change | Court: Material change supported by substantial evidence |
| Whether the material change adversely affected the child | No evidence of harm; schedule working; child healthy | Instability from moves harms child and warrants custody change | Court: No substantial evidence of adverse effect; finding unsupported |
| Whether court could reweigh Albright factors and modify custody | Reweighing premature absent affirmative adverse-effect finding | Reweighing appropriate because material change established | Court: Reweighing was improper without affirmative adverse-effect finding; modification vacated |
Key Cases Cited
- Butler v. Butler, 218 So. 3d 759 (Miss. Ct. App. 2017) (sets three-prong custody-modification test)
- Albright v. Albright, 437 So. 2d 1003 (Miss. 1983) (standard factors for custody determinations)
- Giannaris v. Giannaris, 960 So. 2d 462 (Miss. 2007) (requirement that material change must adversely impact the child)
- Welton v. Westmoreland, 180 So. 3d 738 (Miss. Ct. App. 2015) (multiple moves + other instability can support material change)
- Bredemeier v. Jackson, 689 So. 2d 770 (Miss. 1997) (must separately and affirmatively determine adverse effect)
- Ballard v. Ballard, 434 So. 2d 1357 (Miss. 1983) (adverse-impact requirement for modification)
- Riley v. Doerner, 677 So. 2d 740 (Miss. 1996) (rare cases may justify change absent explicit adverse-effect finding when environment is dangerous)
- Spain v. Holland, 483 So. 2d 318 (Miss. 1986) (caution against penalizing mobility in a mobile society)
- Lorenz v. Strait, 987 So. 2d 427 (Miss. 2008) (parental misconduct alone may be insufficient for modification absent shown harm)