151 So. 3d 272
Miss. Ct. App.2014Background
- Regina Weathers and Scotty Guin divorced in 2008; initial decree awarded Regina primary custody of Jacob and Brittany.
- In June 2013, Scotty filed for modification alleging material changes: Regina drank in the children’s presence, made disparaging remarks, threatened to move the children out of state, and allowed injuries to the children.
- On July 8, 2013, the chancery court entered an order transferring permanent legal and physical custody of Jacob to Scotty, imposed restrictions on both parents, and ordered Regina to pay $100/month child support (terminating Scotty’s prior $250/month obligation), but the order did not identify a material change or make individual Albright findings.
- No transcript of any July 1, 2013 hearing was provided; the modification order states parties appeared with counsel and was "approved as to form" by both attorneys, although Regina contends she never consented to the substance and filed a motion to set aside the order.
- The chancery court later entered a contempt order finding Regina in contempt for unpaid child support and making disparaging remarks; Regina appealed only the custody modification order.
Issues
| Issue | Plaintiff's Argument (Weathers) | Defendant's Argument (Guin) | Held |
|---|---|---|---|
| Whether custody may be modified without a hearing or the custodial parent’s consent | Modification was entered without a hearing and without Regina’s consent; required findings and proof were lacking | Court had a one-day hearing, interviewed children in chambers, and parties’ counsel approved the order as to form | Reversed: record lacks transcript/findings; chancery failed to identify material change and make Albright-factor findings; remanded for further proceedings |
| Whether the chancery court made requisite findings of material change before modifying custody | No material-change finding was made; modification unsupported | Court purportedly found best interest of child justified transfer (per order) | Reversed: order fails to identify specific material change; insufficient to support modification |
| Whether the chancery court applied Albright factors | Regina argues Albright factors were not addressed individually | Guin asserts Albright factors were considered | Reversed: court did not make specific findings on each Albright factor; omission is reversible error |
| Whether child-support order may stand given custody reversal | Regina contests imposition of support and lack of basis tied to custody change | Guin relied on modification order shifting custody and support | Reversed as to child support pending resolution of custody on remand (support depends on custody outcome) |
Key Cases Cited
- Klein v. McIntyre, 966 So. 2d 1252 (Miss. Ct. App. 2007) (consent-order language and attorney "approved as to form" issues; absent consent, court must make findings)
- Samples v. Davis, 904 So. 2d 1061 (Miss. 2004) (purported consent judgments must be announced in open court and supported by record)
- Albright v. Albright, 437 So. 2d 1003 (Miss. 1983) (framework for determining child-custody best interests)
- McDonald v. McDonald, 39 So. 3d 868 (Miss. 2010) (chancellor must identify material change of circumstances and apply Albright factors)
- Marter v. Marter, 914 So. 2d 743 (Miss. 2005) (proper approach: identify specific change then apply Albright factors)