Caples v. Caples, 94-CA-00509-SCT

• Decision Date: 19 December 1996
• Docket Number: No. 94-CA-00509-SCT,94-CA-00509-SCT
• Citation: 686 So.2d 1071
• Parties: Edgar CAPLES v. Gwendolyn Ratliff CAPLES.
• Court: Mississippi Supreme Court

Page 1071

686 So.2d 1071

Edgar CAPLES v. Gwendolyn Ratliff CAPLES.

No. 94-CA-00509-SCT.

Supreme Court of Mississippi.

Dec. 19, 1996.

Edgar Caples, Allen, pro se.

Jerome L. Lohrmann, Jackson, for appellee.

Before PRATHER, P.J., and BANKS and McRAE, JJ.

BANKS, Justice, for the Court:

In this custody modification case there was a failure to comply with Rule 81 of the Mississippi Rules of Civil Procedure with respect to notice of hearing. We, therefore reverse.

I.

On October 25, 1990 the appellant, Edgar Caples, (Edgar) and the appellee, Gwendolyn Ratliff Caples, (Gwendolyn) were granted a Decree of Divorce from the 303rd Judicial District Court of Dallas County, Texas. This decree ordered joint custody of the parties' minor son Edgar Stephen Caples (Stephen). The provisions of the joint custody decree gave Gwendolyn the right to establish the child's domicile and the right of physical possession of the child. At the time of the divorce, Gwendolyn and Stephen did reside in Jackson, Mississippi.

On May 18, 1993, Gwendolyn submitted a complaint for modification in the Chancery Court of the First Judicial District of Hinds County, Mississippi. Edgar answered the complaint and motion to dismiss claiming that the Mississippi court lacked jurisdiction. A hearing was held on August 4, 1993, which resulted in an order of continuance pending a decision by the 303rd Judicial District Court of Dallas County, Texas waiving jurisdiction to the Mississippi court. The court reconvened on January 18, 1994. Edgar, however, was not present. Counsel for Gwendolyn filed an order from the Texas court waiving jurisdiction in favor of the Mississippi court.

Gwendolyn testified that she had suffered a reduction in salary from her job of approximately $2,550 to $1,550 per month, and a reduction in child support received from Edgar of $133 to $108 per week. Gwendolyn stated that she could not afford housing, and that she and Stephen resided with relatives due to the financial burden imposed by the joint custody. The court ordered modification of the Texas joint custody decree but provided that Edgar would have visitation rights.

On February 24, 1994, the chancery court convened again to considered Edgar's motion for new trial. Edgar claimed that the modification granted at the January 18 hearing should be set aside because there was no material change in circumstances to justify modification of custody. Also, Edgar claimed that the order waiving jurisdiction to the Mississippi court was invalid. The Chancellor found that the 303rd Judicial District, Dallas County did transfer jurisdiction to the Mississippi court. The motion for a new trial was denied.

II.

Edgar argues that the modification of child custody was manifest error because it was not based upon a material change in circumstances. Edgar claims that the only change in circumstances is some minor inconvenience to the plaintiff in supporting the terms and conditions of the joint custody. Conversely, Gwendolyn argues that a material change in circumstances does exist to the degree necessary to justify modification of the child custody, and that such modification is in the best interest of the child.

"The 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). Ash v. Ash, 622 So.2d 1264 (Miss.1993). Tucker v. Tucker, 453 So.2d 1294 (Miss.1984). Moreover, implicit in the above prerequisites is the standard that "... a decision to change custody ... must not be made hastily or without ample justification." Ash v. Ash, 622 So.2d at 1266 (Miss.1993). In order to properly consider this issue, a detailed analysis of the "totality of the circumstances" is required. Tucker v. Tucker, 453 So.2d 1294 (Miss.1984).

III.

Edgar's contention that the original custody determination only subjects the appellee to minor inconvenience is without merit. Testimony given by Gwendolyn to the Chancery Court reflects sufficient evidence to constitute a material change in circumstance since the original child custody decree was awarded by the Texas court. First, Gwendolyn has sustained a $12,000 reduction in her annual income. The child support received by Gwendolyn from Edgar has been reduced by $25 per week pursuant to an order from the District Court of the 303rd Judicial District, Dallas County, Texas. Although Gwendolyn did not appear at the hearing to contest the modification affecting the parent-child relationship, the Texas court made a finding that the change in child support was in the best interest of the child. Gwendolyn incurs visitations related costs in an amount equivalent to the child support payment of Edgar per month for each spring and summer session. The child and Gwendolyn must travel seven and one-half to eight hours by car because Gwendolyn is responsible for visitation transportation to Edgar's residence in Texas. A balanced consideration of the above testimony indicates a change in circumstance to Gwendolyn that can be reasonably characterized as beyond mere inconvenience.

Gwendolyn's testimony does, however, raise some doubt as to the gravity of the detriment these circumstances have had on Stephen. When questioned regarding the progress of the joint custody, Gwendolyn stated that Stephen is perfectly fine and that he suffered no ill affects whatsoever. We have held that "[i]t is only that behavior of a parent which clearly posits or causes danger to the mental or emotional well-being of a child (whether such behavior is immoral or not), which is sufficient basis to seriously consider the drastic legal action of changing custody." Ballard v. Ballard, 434 So.2d 1357, 1360 (Miss.1983); Smith v. Jones, 654 So.2d 480, 486 (Miss.1995). This rule was clarified in Tucker v. Tucker, 453 So.2d 1294, 1297 (Miss.1984) where this Court described the sort of change which indicates a desirability for modification of custody as "... one in the overall living conditions in which the child is found." Id. at 1297. While the above testimony suggests no direct harm that Stephen has experienced due to the joint custody decree, it is doubtful that the existing custody situation is in the best interest of the child.

In addition to the economic pressure that joint custody provision has exerted on Gwendolyn and Stephen, she claims that Edgar has used the joint custody vehicle to work a hardship on her and Stephen. Gwendolyn testified that Edgar has forced her to appear in Texas court proceedings about eight times on contempt charges that were based on petty and insignificant issues. Moreover, not only has Gwendolyn been held in contempt but she has incurred approximately $20,000 in legal fees and expenses as a result. Gwendolyn is raising Stephen under serious financial pressure and as a result has not been able to afford housing. Gwendolyn contends that the cost of complying with the joint custody requirement has impaired her ability to provide for her son. Hence, the overall living conditions in which Stephen is found have declined, at least in part, due to the custody provision.

The trial court did not commit manifest error in its decision to modify custody. The standard applied to determine manifest error is well-settled in our jurisprudence. "[T]he Supreme Court will not reverse a chancellor's findings of fact where the Court finds those facts by substantial credible evidence in the record unless the chancellor committed manifest error." Morrow v. Morrow, 591 So.2d 829 (Miss.1991). The trial court relied upon uncontroverted testimony given by Gwendolyn as to...