Tracey Carol Gaddis v. Bennie Richard Wilkerson, Jr.
235 So. 3d 1446
| Miss. Ct. App. | 2018Background
- Richard Wilkerson and Tracey Gaddis divorced in 2008; they have joint legal and joint physical custody of their son under a detailed custody schedule that was modified in 2013 and again challenged in 2016.
- The 2013 agreement provided week-on/week-off summer custody, alternating Wednesdays for church visits, and alternating weekend custody (first, third, fifth weekends).
- In April 2016 Richard filed to modify the custody schedule seeking sole physical custody (claiming a material change) or alternatively equal time year-round during the school year; Tracey moved to dismiss but the court denied dismissal.
- At a bench hearing the chancellor found no material change warranting sole custody and denied Richard’s request for equal school-year time, but concluded limited schedule adjustments were in the child’s best interest.
- The chancellor converted Richard’s alternating Wednesday 5:30–7:30 p.m. periods to overnight custody and split spring break into alternating 4/3 day periods; Tracey may see the child on his birthday when it falls during Richard’s period.
- Richard appealed, arguing the modifications were improper and that the judgment was not final and appealable; the Court of Appeals affirmed.
Issues
| Issue | Plaintiff's Argument (Wilkerson) | Defendant's Argument (Gaddis) | Held |
|---|---|---|---|
| Whether there was a material change in circumstance to justify sole physical custody | Claimed material change adversely affecting child; sought sole custody | No material change; existing joint custody appropriate | No material change found; sole custody denied |
| Whether the chancellor could modify the existing custody schedule absent a material change | Argued for broader equal time during school year as alternative remedy | Argued existing joint-physical schedule should remain | Court treated schedule adjustments like visitation modifications and allowed limited changes in child’s best interest |
| Whether extending Wednesday visits to overnight was proper | Requested overnight to provide more meaningful time and reduce exchanges/conflict | Opposed changing established times | Court approved overnight extension, finding it beneficial and reduced parental conflict |
| Whether the judgment was final and appealable under Rule 54(b) | Argued judgment was appealable final order | Defendant implicitly contended it resolved custody matters and was final | Court held the judgment adjudicated the petition’s merits and was final and appealable |
Key Cases Cited
- Chesney v. Chesney, 849 So. 2d 860 (Miss. 2002) (standard limiting appellate review of chancery court domestic-relations findings)
- Carter v. Carter, 204 So. 3d 747 (Miss. 2016) (chancellor’s factual findings upheld if supported by substantial credible evidence)
- Porter v. Porter, 23 So. 3d 438 (Miss. 2009) (clarifies that “primary physical custody” does not convert joint physical custody into de facto sole custody)
- H.L.S. v. R.S.R., 949 So. 2d 794 (Miss. Ct. App. 2007) (to modify a visitation-style schedule, the prior schedule must not be working and modification must serve the child’s best interest)
- Banks v. City Fin. Co., 825 So. 2d 642 (Miss. 2002) (final-judgment rule: an order is final if it ends litigation on the merits and leaves nothing for the court but execution)
- Catlin v. United States, 324 U.S. 229 (U.S. 1945) (defining finality for appeal as ending litigation on the merits)