Self v. Lewis
64 So. 3d 578
| Miss. Ct. App. | 2011Background
- Marriage in 1999, two children Brooklyn (2001) and Emily (2003); separation in 2006; divorce granted on irreconcilable differences; Marital Dissolution Agreement awarded Jonathan full physical custody with liberal visitation to Elizabeth and a morals clause; move to Florida proposed in 2009 leading to modification proceeding; chancellor found material change in circumstances and awarded Elizabeth custody; Self appeals.
- Elizabeth sought modification due to anticipated impracticality of visitation if Jonathan moved to Florida; chancellor found Jonathan’s move, morals violations, and business instability adverse to children; Albright analysis favoring Elizabeth.
- Jonathan testified to stable custody, move to Florida for better opportunities, and that Elizabeth’s visitation distance remained feasible; testified to Jessica as new wife and support system; testified to Kammie’s testimony impacting credibility.
- Witnesses generally supported Jonathan’s involvement with children; Elizabeth claimed lack of involvement by Jonathan and greater stability with Elizabeth and Tim; Kammie testified to alcohol and caregiving concerns.
- Final ruling: chancellor’s custody modification to Elizabeth affirmed; no reversible errors found; Jonathan to have visitation and pay child support.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Material change in circumstances required for custody modification | Self contends no material change. | Lewis contends change in circumstances adversely affected the children. | Yes, material change supported modification. |
| De facto joint custody due to liberal visitation | Self argues no de facto joint custody. | Lewis argues visitation created de facto joint custody. | De facto joint custody existed. |
| Move to Florida as part of material change analysis | Self asserts relocation alone not enough for material change. | Lewis argues totality of circumstances supports change. | Move considered with totality; supports modification. |
| Albright factors support modification and best interests | Self challenges factors favoring Elizabeth. | Lewis argues factors favor Elizabeth based on continuity, morals, stability. | Albright factors support Elizabeth; custody modified accordingly. |
Key Cases Cited
- Sudduth v. Mowdy, 991 So.2d 1241 (Miss. Ct. App. 2008) (review standard for custody decisions; abuse of discretion standard)
- Forsythe v. Akers, 768 So.2d 943 (Miss. Ct. App. 2000) (relationship alone not enough for modification; need additional factors)
- Davidson v. Coit, 899 So.2d 904 (Miss. Ct. App. 2005) (conduct indicating harm to child can support modification)
- Lackey v. Fuller, 755 So.2d 1083 (Miss. 2000) (relocation not per se change; totality of circumstances considered)
- Johnson v. Gray, 859 So.2d 1006 (Miss. 2003) (proof requirements for material change in custody)
- Timms v. Pearson, 876 So.2d 1083 (Miss. Ct. App. 2004) (alternate grounds affirmance when right result reached)