Brocato v. Brocato

• Citation: 731 So.2d 1138
• Decision Date: 21 January 1999
• Docket Number: No. 98-CA-00063-SCT.,98-CA-00063-SCT.
• Parties: Leslie Kay King BROCATO v. Christopher Todd BROCATO.
• Court: United States State Supreme Court of Mississippi

731 So.2d 1138

Leslie Kay King BROCATO v. Christopher Todd BROCATO.

No. 98-CA-00063-SCT.

Supreme Court of Mississippi.

January 21, 1999.

Steve McCord, Batesville, Attorney for Appellant.

Robert H. Broome, Batesville, Attorney for Appellee.

Before PITTMAN, P.J., and SMITH and MILLS, JJ.

SMITH, Justice, for the Court:

STATEMENT OF THE CASE

¶ 1. Leslie Kay King Brocato ("Leslie") and Christopher Todd Brocato ("Chris") were married in Phillips County, Arkansas on June 18, 1988. They were divorced by decree of the Panola County Chancery Court on December 18, 1992. There are two minor children of the marriage, Jennifer Brooke Brocato ("Jennifer"), born July 31, 1989, and Edwin Ross Brocato, nicknamed Timber ("Timber"), born April 21, 1985. Timber is the natural son of Leslie and was adopted by Chris.

¶ 2. Following the decree of divorce, Leslie had primary custody, control, care and responsibility of the two children until a Modification of the Divorce Decree on July 26, 1996, when custody of both was given to Chris. This modification was primarily predicated upon Leslie's substance abuse and eating disorder problems. Prior to this modification, Leslie and the two children were living in Desoto, Texas with Leslie's mother. The Order for Modification gave Chris full custody and Leslie limited visitation only in the home of Chris or James King, Leslie's father.

¶ 3. Since the modification, Chris has used the assistance of his parents, Billie and Sammie Brocato, as well as James King, in rearing the children. In fact, at some point soon after the modification in 1996, Chris realized that Jennifer needed a womanly influence and decided to have Jennifer live with his parents in Coahoma County, Mississippi. Meanwhile, Timber had lived with Chris in Batesville until April 1997 when he began staying with James King, his maternal grandfather. Timber's move was caused by frequent discipline problems at both school and home. Chris regularly disciplined Timber, usually with whippings. He testified that once he even beat Timber until he could beat him no more. Frustrated, he finally decided to take Timber to James King, because that was the only person Timber would obey.

¶ 4. In contrast, Jennifer has done very well at her paternal grandparents. Jennifer is enrolled in a parochial school and has overcome her deficiencies since residing with the Brocatos. She has received numerous awards and excellent report cards after a slow start. Billie Brocato, her grandmother, has provided her with maternal care and attention as well as tutors and playmates. Chris comes to see her as often as possible, usually three or four times a month, and talks to her on the phone most everyday.

¶ 5. After completing her rehabilitation at Charter Hospital, Leslie returned to Helena, Arkansas, and lived with her father, James King, and stepmother. She has found employment at the Grand Casino in Tunica County where she works approximately 35 hours per week at $4.75 an hour plus tips. Shortly after Chris left Timber with James King in April of 1997, Leslie moved with Timber to Walls, Mississippi, and enrolled him in Desoto School. James King has continuously provided financial assistance to Leslie and Timber. Timber continues to struggle in school, but the chancellor found that James King's influence was best for the boy.

¶ 6. On July 9, 1997, Leslie petitioned the Panola County Chancery Court for modification of divorce decree. On October 2 and 3, 1997, Chancellor Dennis M. Baker heard testimony. Subsequently, he ordered that the previous decree be modified in part. The court modified the decree with regards to Timber placing him in the custody of Leslie and required that she be solely responsible for his maintenance and support. The court ordered that Jennifer remain in the custody of Chris and that he be solely responsible for her maintenance and support. The court further ordered that visitation be at all reasonable times for Chris and Timber and left intact the decree that Leslie visit Jennifer only at her father's or Chris'.

¶ 7. Aggrieved by the chancellor's findings, the Appellant/ Leslie assigns two errors, as follows:

I. WHETHER THE TRIAL COURT ERRED IN MODIFYING CHILD CUSTODY WITH REGARD TO ONLY ONE OF THE MINOR SIBLINGS.

II. WHETHER THE TRIAL COURT ERRED IN REFUSING TO REQUIRE CHRIS BROCATO TO PAY CHILD SUPPORT FOR THE BENEFIT OF THE MINOR CHILD, EDWIN ROSS (TIMBER) BROCATO.

STANDARD OF REVIEW

¶ 8. Our standard of review in custody cases is well settled and is limited:

"this Court will not reverse a Chancery Court's factual findings, be they of ultimate fact or of evidentiary fact, where there is substantial evidence in the record supporting these findings of fact." Smith v. Jones, 654 So.2d 480, 485 (Miss.1995)(quoting Cooper v. Crabb, 587 So.2d 236, 239 (Miss.1991)

). Furthermore, the chancellor's findings will not be disturbed when supported by substantial evidence unless the chancellor abused his discretion, was manifestly wrong or clearly erroneous or applied an erroneous legal standard. Williams v. Williams, 656 So.2d 325, 330 (Miss. 1995); Smith, 654 So.2d at 485; Chamblee v. Chamblee, 637 So.2d 850, 860 (Miss.1994).

* * * *

There must be sufficient evidence in the record supporting the chancellor's opinion for this Court to say that the chancellor has not abused his discretion.

Touchstone v. Touchstone, 682 So.2d 374, 377 (Miss.1996).

LEGAL ANALYSIS

I. WHETHER THE TRIAL COURT ERRED IN MODIFYING CHILD CUSTODY WITH REGARD TO

ONLY ONE OF THE MINOR SIBLINGS.

¶ 9. In regards to modification of custody, this Court has stated:

"[t]he prerequisites to a child custody modification are: (1) proving a material change in circumstances which adversely affects the welfare of the child and (2) finding that the best interest of the child requires the change of custody." Smith v. Jones, 654 So.2d 480, 486 (Miss. 1995)....This Court has also noted that "[t]he `totality of the circumstances' must be considered." Ash v. Ash, 622 So.2d 1264, 1266 (Miss.1993)(citing Tucker v. Tucker, 453 So.2d 1294, 1297 (Miss.1984)

).

Wright v. Stanley, 700 So.2d 274, 280-81 (Miss.1997). In showing a material change in circumstances in the custodial home, the burden of proof is on the movant. Riley v. Doerner, 677 So.2d 740, 743 (Miss.1996)(citing Ash, 622 So.2d at 1266

).

¶ 10. Leslie asserts that she has shown a material change in circumstances adversely affecting both the children. Chris contends that a material change in circumstances only exists with regards to Timber. In his bench opinion, the chancellor found unusual circumstances existed in that Chris had voluntarily and independently relieved himself of responsibility over Timber, Jennifer was residing full-time with her paternal grandparents, and Leslie had completed her rehabilitation. Under these facts, this Court should agree that a material change in circumstances in the custodial home has been shown by a preponderance of the evidence. See Bredemeier v. Jackson, 689 So.2d 770, 776 (Miss.1997)

(where this Court found that "many things occurred to create material change").

¶ 11. The polestar consideration in child custody cases is the best interests of the child. Riley, 677 So.2d at 744. Both parties assert that the Albright analysis is proper, but Leslie contends that the chancellor's denial of a custody modification with regard to Jennifer was clearly erroneous. In Albright v. Albright, this Court listed the following factors:

Age should carry no greater weight than other factors to be considered, such as: health, and sex of the child; a determination of the parent that has had the continuity of care prior to the separation; which has the best parenting skills and which has the willingness and capacity to provide primary child care; the employment of the parent and responsibilities of that employment; physical and mental health and age of the parents; emotional ties of parent and child; moral fitness of parents; the home, school and community record of the child; the preference of the child at the age sufficient to express a preference by law; stability of home environment and employment of each parent, and other factors relevant to the parent-child relationship.

Albright v. Albright, 437 So.2d 1003, 1005 (Miss.1983).

¶ 12. (1) Age and Sex of the Child— Jennifer is a third-grader. Leslie argues that a nine year-old daughter needs to be under the care and supervision of an adult female. Chris agrees generally, but argues instead that his mother Billie Brocato is the best female adult to care for her. The chancellor found that Jennifer's best interests were served by being in the care of Billie Brocato and the custody of Chris. Billie Brocato clearly adores Jennifer and seemingly has a special bond with her. Jennifer's grades, appearance, attitude, and demeanor have all improved since her residence with Billie Brocato.

¶ 13. (2) Determination of the parent who has the continuity of care prior to the previous modification—Leslie argues that Jennifer has never lived with Chris on a permanent basis since the divorce. Chris counters that when Jennifer arrived at Billie Brocato's after the first modification she was experiencing difficulties in school, her hair was matted, her clothes were too small, and she was introverted. ¶ 14. (3) Parenting skills—Leslie argues that Chris' parenting skills are non-existent as he has not cared for Jennifer on a daily basis. Chris responds that he has provided the best care possible for Jennifer, his mother Billie. Chris pays her bills, and Billie takes care of her by reading her stories, providing her with playmates and tutors, and even letting Jennifer sleep with her when she is scared.

¶ 15. (4) Willingness to provide primary child care—Leslie argues that Chris is not providing primary child care by farming their daughter out to his mother. Chris counters that he provides excellent child care for paying for her to attend a parochial school and...