283 So.3d 269
Miss. Ct. App.2019Background
- Divorce (July 24, 2014): judgment awarded Bryan legal and physical custody of two minor daughters (both autistic; one uses a feeding tube); Sherry awarded limited visitation per Marital Dissolution Agreement.
- May 2015 agreed order: parties modified visitation—Sherry received unsupervised and extended summer visitation; Bryan retained legal and physical custody; parties agreed the children could stay in Virginia with Sherry.
- Children lived with Sherry in Virginia from May 2015 until September 2017 (~2+ years); during that time they attended Virginia schools and received therapy; teachers and therapists in Virginia testified Sherry was engaged and the children made progress.
- Sept 2017: Bryan removed the children from Virginia after a vacation, brought them to live with him in Clinton, Mississippi, enrolled them in local schools, then moved residences and schools again shortly thereafter; Mississippi teachers later reported isolated concerns about hygiene, clothing, and exhaustion; teachers did not report DHS involvement.
- Sherry filed a motion to modify custody (Oct 3, 2017). At trial (Nov 1, 2017), after Sherry rested, Bryan moved to dismiss under Rule 41(b). Chancellor granted dismissal (finding no substantial/material adverse change) and denied reconsideration. Appellate court reversed and remanded for the trial to proceed.
Issues
| Issue | Plaintiff's Argument (Sherry) | Defendant's Argument (Bryan) | Held |
|---|---|---|---|
| Whether a material change in the custodial home occurred since the 2014 decree | The cumulative changes after the children returned to Bryan—loss of his prior support system, rapid moves, new cohabitation, multiple school changes, caregiver instability, and teacher reports of hygiene/therapy lapses—constitute a material, adverse change | Conditions mirror pre-divorce problems; incidents were isolated, teachers never reported DHS, children not abused or neglected, relocation alone is not dispositive | Majority: Reversed dismissal — Sherry presented sufficient evidence of a material, adverse change to survive a Rule 41(b) motion; remand for full trial on custody modification |
| Whether the chancellor failed to consider the totality of the circumstances | Chancellor ignored cumulative effect of multiple changes and their impact on special-needs children; should have weighed all factors together | Chancellor appropriately weighed evidence and found no ongoing adverse effect; many concerns were corrected or isolated | Majority: Chancellor erred in granting dismissal without fully considering totality; trial must continue to allow full factfinding |
| Proper standard for involuntary dismissal in bench custody trial | Plaintiff: Evidence, if uncontradicted, would oblige a finding for plaintiff; dismissal inappropriate | Defendant: Judge may view evidence fairly (not favorably) and dismiss if compelled to find for defendant | Court: On appeal review uses substantial-evidence/manifest-error standard; here dismissal improper because plaintiff met burden to survive Rule 41(b); if adverse change ultimately found, chancellor must proceed to Albright analysis |
Key Cases Cited
- Voss v. Doughty, 242 So. 3d 952 (Miss. Ct. App. 2018) (sets out elements for custody modification: material change, adverse effect, then Albright factors)
- Giannaris v. Giannaris, 960 So. 2d 462 (Miss. 2007) (material change must be unforeseeable at the time of the original decree)
- Gainey v. Edington, 24 So. 3d 333 (Miss. Ct. App. 2009) (a change in overall living conditions and totality of circumstances test)
- Powell v. Powell, 976 So. 2d 358 (Miss. Ct. App. 2008) (relocation plus other factors can amount to material change; court must consider totality of circumstances)
- Brocato v. Brocato, 731 So. 2d 1138 (Miss. 1999) (custodial parent's voluntary relief of responsibility by sending child to relatives can be a material change)
- Albright v. Albright, 437 So. 2d 1003 (Miss. 1983) (framework for evaluating child’s best interests after a material-change finding)
- Shows v. Cross, 238 So. 3d 1224 (Miss. Ct. App. 2018) (bench-trial Rule 41(b) dismissal standard: judge must consider evidence fairly, not necessarily in plaintiff’s favor)