Curry v. McDaniel, No. 2009-CA-00577-COA (Miss. App. 5/25/2010), 2009-CA-00577-COA.

CourtCourt of Appeals of Mississippi
Docket NumberNo. 2009-CA-00577-COA.,2009-CA-00577-COA.
Decision Date25 May 2010

Page 1

No. 2009-CA-00577-COA.
Court of Appeals of Mississippi.
May 25, 2010.







¶ 1. The Rankin County Chancery Court awarded legal and physical custody of C.H.,1 a minor child, to her father, Joseph R. McDaniel, based on a finding that a material change in circumstances had occurred since its previous judgments that warranted changing C.H.'s custody from her mother, Teressa C. Curry. Curry appeals. Finding no reversible error with the chancery court's judgment, we affirm.


¶ 2. In November 2001, McDaniel and the Mississippi Department of Human Services (DHS) entered into a stipulated agreement of paternity in the Rankin County Chancery Court, and McDaniel was adjudicated the natural father of C.H., a child born out of wedlock to Curry in March 2001. The paternity judgment was silent as to custody. In March 2007, based on information that Curry had plans to move to Tennessee with C.H., McDaniel filed a complaint in the chancery court in which he requested the court to set child support in an amount to be deducted from his wages, secure his visitation rights, amend C.H.'s birth certificate to reflect McDaniel's surname, and provide other relief. Curry filed a cross-complaint for child custody and support. On May 8, 2007, the parties entered into a stipulated agreement to allow for a family master to hear the matters pertaining to "child custody, child support, name change, and visitation." On June 21, 2007, Curry and McDaniel entered into an agreed order establishing child support, visitation, name change, and related relief which was approved by the family master and affirmed by the chancellor. The order, however, was silent as to custody. In November 2007, DHS also filed a complaint in the Rankin County Chancery Court against McDaniel, seeking past and future support of the child, a withholding order, and health insurance.

¶ 3. In December 2007, McDaniel filed a petition in the Rankin County Chancery Court charging that a material change in circumstances had occurred since the court's June 2007 decree was entered and that the change adversely affected the safety and welfare of C.H. Two evidentiary hearings were held in the matter, the first on September 4, 2008, and the second on February 12, 2009. The only witnesses who testified at the hearings were Curry, McDaniel, and McDaniel's wife of one year, Yolonda McDaniel. Yolanda and McDaniel had lived together for three years prior to their marriage, and Yolanda has known McDaniel and C.H. for four years. Curry is also married. She and her husband married in April 2008.

¶ 4. On March 11, 2009, the chancery court issued a judgment finding that since rendition of the past final judgments in this cause, a material change in circumstances had occurred which warranted the court changing custody of C.H. from Curry to McDaniel. Taking into consideration Tucker v. Tucker, 453 So. 2d 1294 (Miss. 1984) and Albright v. Albright, 437 So. 2d 1003 (Miss. 1983), the court held that it was in the best interest of C.H. that custody be changed, and the court awarded legal and physical custody of the minor child to McDaniel. The court granted Curry liberal visitation rights and held that due to Curry's health and unemployment, she would not be required to pay child support.

¶ 5. Curry appeals asserting the following assignments of error:

I. The chancellor committed manifest error in not treating this case solely as one for modification of custody.

II. Had the chancery court used the proper standard of modification, McDaniel would not have prevailed.

III. The chancellor committed manifest error in considering testimony he had previously found inadmissible.

IV. The chancellor's consideration of evidence pertaining to Curry's disability was discriminatory and in violation of the spirit of federal law.

V. The chancellor's Albright analysis was fatally flawed.


¶ 6. "The matter of child custody is a matter within the sound discretion of the chancellor." Sturgis v. Sturgis, 792 So. 2d 1020, 1023 (¶12) (Miss. Ct. App. 2001). In reviewing the award of child custody, this Court will affirm the decision of the chancellor unless that decision is manifestly wrong, clearly erroneous, or the chancellor applied an erroneous legal standard. Roberson v. Roberson, 814 So. 2d 183, 184 (¶3) (Miss. Ct. App. 2002). "[F]indings of fact made by a chancellor may not be set aside or disturbed upon appeal if they are supported by substantial, credible evidence." Marascalco v. Marascalco, 445 So. 2d 1380, 1382 (Miss. 1984) (citations omitted).


I. The chancellor committed manifest error in not treating this case solely as one for modification of custody.

II. Had the chancery court used the proper standard of modification, McDaniel would not have prevailed.

¶ 7. Curry contends that chancellor erroneously treated this case as an initial-custody matter, rather than as one for custody modification. Curry submits that the chancellor acknowledged that she has had de facto custody of C.H. for most of C.H.'s life, and despite the chancellor's decision to award McDaniel custody of C.H. based on a material change of circumstances, the chancellor did not seriously consider this case to be a modification case. Curry contends that the chancellor gave short shrift to the material-changes requirement and proceeded directly to a best-interest analysis under Albright.

¶ 8. Prior to issuing his final ruling, the chancellor provided a detailed discussion from the bench following the close of evidence in the case and explained to the parties what the law mandates in cases where a party is seeking modification of a previous-custody determination as compared to an initial-custody determination. The chancellor pointed to the case of Tucker, wherein the supreme court reiterated that:

A decree for child custody shall not be modified so as to change custody from one parent to the other unless, subsequent to the original decree, there has been a material change in circumstances under which the child is living with the custodial parent which adversely affects the child's welfare.

Tucker, 453 So. 2d at 1297 (citations omitted). The chancellor explained that even if the court finds a material change in circumstances has occurred and the change has adversely affected the child, the court still must determine whether it is in the best interest of the child to change custody: always keeping in mind, the best interest and welfare of the child are the polestar considerations. See id. (citing Denney v. Denney, 453 So. 2d 693, 694 (Miss. 1984)).

¶ 9. The chancellor found in this instance that there had been no custody determination decided or approved by the court prior to McDaniel's petition for custody modification. Because there had not been a first-time finding by the court regarding custody of C.H, the chancellor viewed this matter as a "straight custody case." The chancellor explained that when there has been no previous custody determination, a material-changes test is not required; rather, Mississippi law instructs chancellors to apply an Albright analysis in order to determine in whose custody does the best interest of the child lie. He stated, however, that even if there had been a prior custodial award by the court, a material change in circumstances adversely affecting the welfare of C.H. was sufficiently demonstrated to the court. The chancellor articulated his reasoning as follows:

The [court] finds in this particular case, even arguendo, if there had been a prior custodial award by a [court] that in this particular case under the circumstances, and those circumstances, I'm talking about negative hygiene issues with this little girl while she has been with the mother; an academic failure, failure to make academic progress under parental attention. This instance of endangerment to the child or potential danger to the child resulting from driving recently without a driver's license and with impaired vision, all of those things in their totality would equate with a material change of circumstances adverse to the child which would adversely affect, potentially, the health of the child.

¶ 10. This Court has held that "the material[-]changes standard used in modification proceedings is dependent on there being a prior determination of custody." C.W.L v. R.A., 919 So. 2d 267, 271 (¶10) (Miss. Ct. App. 2005) (quoting Law v. Page, 618 So. 2d 96, 101 (Miss. 1993)). But, in cases where no prior determination of custody has been considered, "the proper standard of law to be applied is that found in divorce proceedings, which is the best interest of the minor child." Id. (citations omitted). Once the father of a child born out of wedlock acknowledges the child as his own, "the father is deemed on equal footing with the mother as to parental and custodial rights to that child." Williams v. Stockstill, 990 So. 2d 774, 776 (¶9) (Miss. Ct. App. 2008) (citing Smith v. Watson, 425 So. 2d 1030, 1033 (Miss. 1983)). This Court has further held that "there is no law to support a different burden of proof for fathers of children born out of wedlock who delay in seeking custody[;] [t]he law is that unless a prior custody determination has been made, custody is determined by the Albright factors." Id. at 776 (¶8) (citing Law, 618 So. 2d at 101; Romans v. Fulgham, 939 So. 2d 849, 852 (¶4) (Miss. Ct. App. 2006); C.W.L., 919 So. 2d at 271 (¶10); S.B. v. L.W., 793 So. 2d 656, 658 (¶7) (Miss. Ct. App. 2001)).

¶ 11. As the chancellor correctly found, there has not been a custody determination either decided or approved by the court...

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