Butler v. Mozingo

• Decision Date: 12 November 2019
• Docket Number: NO. 2018-CA-00673-COA,2018-CA-00673-COA
• Citation: 287 So.3d 980
• Parties: Randi Lynn BUTLER, Appellant v. Joseph Parker MOZINGO, Appellee
• Court: Mississippi Court of Appeals

287 So.3d 980

Randi Lynn BUTLER, Appellant

v.Joseph Parker MOZINGO, Appellee

NO. 2018-CA-00673-COA

Court of Appeals of Mississippi.

November 12, 2019

ATTORNEY FOR APPELLANT: PHILLIP LLOYD LONDEREE, PETAL

ATTORNEYS FOR APPELLEE: SHEILA HAVARD SMALLWOOD, HATTIESBURG, JOHN D. SMALLWOOD

EN BANC.

C. WILSON, J., FOR THE COURT:

¶1. This is a child-custody-modification case. Randi Butler and Joseph Mozingo are the parents of R.M., a minor.¹ Butler appeals from the Forrest County Chancery Court's judgment granting Mozingo's request for custody modification and for other relief. To obtain a change in custody, Mozingo had to prove by a preponderance of the evidence that "(1) a material change of circumstances ... occurred in the custodial home since the most recent custody decree, (2) the change adversely affect[ed] the child, and (3) the child's best interests mandate[d] a change in custody." Butler v. Butler , 218 So. 3d 759, 762 (¶11) (Miss. Ct. App. 2017). Upon review, the chancellor did not err in finding that a material change in circumstances occurred in R.M.'s custodial home. But the chancellor's de facto determination that the change adversely affected R.M. is not supported by substantial evidence in the record. We therefore reverse and render the chancery court's order modifying custody.

FACTS AND PROCEDURAL HISTORY

¶2. Although never married, Butler and Mozingo engaged in an intimate relationship that resulted in the conception of R.M. Butler gave birth to R.M. in July 2014. On January 12, 2015, the chancery court entered an agreed order that adjudicated Mozingo as the natural father of R.M., granted the parties joint legal custody of R.M., granted physical custody and child support to Butler, and granted visitation to Mozingo.

¶3. About two years later, on March 24, 2017, Mozingo filed a complaint seeking modification of custody and for other relief. In his complaint, Mozingo alleged that there had been a substantial change in circumstances in Butler's home since January 2015 and that the change had an adverse impact on R.M. According to Mozingo, Butler had made "numerous moves in the past two ... years due in part to her inability to maintain gainful employment." Mozingo also contended that Butler's "actions over the past two years show[ed] poor judgment as well as poor parenting skills with regard to the health and welfare of [R.M.]" Accordingly, Mozingo sought physical custody of R.M. and child support from Butler.

¶4. On April 25, 2017, the chancery court entered an agreed temporary order for the parties to exchange physical custody of R.M. on a weekly basis during June and July 2017. On August 28, 2017, the chancery court entered a second agreed temporary order for the parties to share joint legal and physical custody of R.M. until further order of the court. On March 8, 2018, the chancery court held a trial on Mozingo's complaint. Butler, Mozingo, Mozingo's mother, Mozingo's girlfriend, and Butler's sister-in-law testified during the trial.

¶5. Butler's testimony revealed five moves that entailed both different residences and living arrangements, the birth of a second child (whose father provides Butler no child support), a driver's license suspension for an unpaid traffic violation, and an arrest for a misdemeanor incident that occurred prior to R.M.'s birth—all within the three years since the chancery court entered the January 2015 agreed order. According to Butler's testimony, she first lived with her brother and his wife. She then moved into her own apartment. After that, she moved into a larger home with her mother. Next, she moved in with a friend and her friend's two children. And finally, Butler moved into a three-bedroom trailer, which she was leasing to own from her friend Mandy Odom. Butler testified that she had been living in the trailer for about a year and that Odom was also living in the trailer until Odom finished remodeling her house.

¶6. Mozingo testified he should have physical custody of R.M. due to Butler's lack of stability. But he also stated that the week-on-week-off schedule had worked well for them and that he "personally [did] not have a problem with the week on, week off." According to Mozingo, R.M. has been in good health, and Butler has done nothing to cause him to believe that she was being negligent or not taking care of R.M.

¶7. Mozingo's mother likewise testified that the week-on-week-off schedule had worked well and that R.M. was in good health, "active[,] and bright." Mozingo's girlfriend testified that Mozingo wanted physical custody of R.M. to provide him with stability. Mozingo's girlfriend agreed that Mozingo seemed to be enjoying the week-on-week-off schedule and that the schedule was "good." Butler's sister-in-law testified that Butler is a very good mother and that the week-on-week-off schedule had been working "okay."

¶8. At the end of the trial, the chancellor made an on-the-record finding that

there has been a material change in circumstances that has been adverse to the minor child, namely, [R.M.], and that material change in circumstances has to do with the five different residence[s] and the lack of stability in [Butler's] household, that [Butler has] moved five times since [R.M.] was born. And he's only three-and-a-half years old.

The chancellor went on to address the Albright² factors and ultimately awarded physical custody to Mozingo. On April 2, 2018, the chancery court entered a judgment modifying custody. Similar to the chancellor's bench finding, the judgment stated that

[Butler]'s testimony reflected that she and the minor child had made several moves since the [agreed order] was entered in January of 2015 .... Based on these moves, the Court finds that a material change in circumstances has occurred in the home of ... Butler which has had an adverse effect on the minor child of the parties.

Aggrieved, Butler appealed.

¶9. On appeal, Butler contends that the chancellor erred in finding a material change in the custodial home. According to Butler, Mozingo likewise did not establish an adverse effect on R.M. at trial. Butler contends that, in fact, the undisputed evidence offered at trial demonstrated that the parties' custody and visitation schedule was working well and had no ill effects on R.M.

STANDARD OF REVIEW

¶10. "The standard of review in child custody cases is limited. Reversal occurs only if a chancellor is manifestly wrong or applied an erroneous legal standard." Floyd v. Floyd , 949 So. 2d 26, 28 (¶5) (Miss. 2007). "So long as there is substantial evidence in the record that, if found credible by the chancellor, would provide support for the chancellor's decision, this Court may not intercede simply to substitute our collective opinion for that of the chancellor." Hammers v. Hammers , 890 So. 2d 944, 950 (¶14) (Miss. Ct. App. 2004) (quoting Bower v. Bower , 758 So. 2d 405, 412 (¶33) (Miss. 2000) ).

DISCUSSION

¶11. "To obtain a change in custody, the moving party must prove by a preponderance of the evidence that (1) a material change of circumstances has occurred in the custodial home since the most recent custody decree, (2) the change adversely affects the child, and (3) the child's best interests mandate a change in custody." Butler , 218 So. 3d at 762 (¶11). In weighing a petition for modification, "chancellors are charged with considering the ‘totality of the circumstances.’ " Giannaris v. Giannaris , 960 So. 2d 462, 467 (¶10) (Miss. 2007) (quoting Tucker v. Tucker , 453 So. 2d 1294, 1297 (Miss. 1984) ). "Before custody should be changed, the chancellor should find that the overall circumstances in which a child lives have materially changed and are likely to remain materially changed for the foreseeable future and, of course, that such change adversely impacts upon the child." Id. (emphasis omitted).

¶12. Viewing the record as a whole, substantial evidence supports the chancellor's finding that a material change of circumstances occurred in R.M.'s custodial home. As noted by the chancellor, Butler has moved five times since R.M.'s birth. Generally, "the mere moving of the custodial parent does not constitute a material change in circumstances for child custody modification purposes." Welton v. Westmoreland , 180 So. 3d 738, 749 (¶34) (Miss. Ct. App. 2015) (quoting Giannaris , 960 So. 2d at 468 (¶11) ). But "it is the effect the move has on the child and the custody arrangement that is dispositive." Id. (quoting Pearson v. Pearson , 11 So. 3d 178, 182 (¶10) (Miss. Ct. App. 2009) ). This Court has previously upheld a chancellor's finding of material change where multiple moves are coupled with other evidence indicating a lack of stability. Id. at (¶35) (referencing the "considerable discretion" we afford chancellors).

¶13. In this case, Butler's five moves each entailed not only different residences but also materially different living arrangements. The chancellor determined "the five different residences and the lack of stability in [Butler's] household" constituted a material change in circumstances. (Emphasis added). Reviewing the record, additional evidence of a "lack of stability in [Butler's] household" was adduced at trial. For example, the chancellor noted that Butler "does not have the financial resources to pay the financial obligations that were listed on her financial statement." And, since R.M.'s birth, Butler has had a second child for whom she bears sole financial responsibility because the child's father pays no child support. Mindful of our limited standard of review, we conclude that the chancellor's finding of a material change in R.M.'s custodial home is supported by substantial evidence and therefore is not manifestly wrong.

¶14. Still, even when the record supports a finding that a material change in circumstances in the custodial home has occurred, the chancellor "must separately and affirmatively determine that this change is one which adversely affects the child[ ]." Bredemeier v. Jackson , 689 So. 2d 770, 775 (Miss. 199...