Davidson v. Coit

• Decision Date: 01 February 2005
• Docket Number: No. 2002-CA-01570-COA.,2002-CA-01570-COA.
• Citation: 899 So.2d 904
• Parties: April Elaine DAVIDSON, Appellant, v. Edwin Daniel COIT, Appellee.
• Court: Mississippi Court of Appeals

899 So.2d 904

April Elaine DAVIDSON, Appellant, v. Edwin Daniel COIT, Appellee.

No. 2002-CA-01570-COA.

Court of Appeals of Mississippi.

February 1, 2005.

Rehearing Denied April 19, 2005.

Sandra Nicole Farrell, attorney for appellant.

Christopher A. Tabb, Brandon, attorney for appellee.

Before LEE, P.J., IRVING and GRIFFIS, JJ.

GRIFFIS, J., for the Court.

¶ 1. April Elaine Davidson appeals the chancellor's judgment modifying custody. We find no error and affirm.

FACTS

¶ 2. Edwin Daniel Coit and April Elaine Davidson were married on July 27, 1991. Two children were born during their marriage, Marilyn Elaine Coit and Kathryn Elizabeth Coit. At the time of the hearing in this matter, Marilyn was nine years old and Kathryn was seven years old. On December 30, 1997, the Chancery Court of Rankin County entered a final judgment of divorce based on irreconcilable differences. In the judgment, Coit and Davidson agreed to share joint physical and legal custody of the children. The judgment provided that the children were to live primarily with Davidson, and Coit would have visitation rights.

¶ 3. On August 14, 2001, Coit filed a motion for modification of custody. The motion asserted two grounds for modification: (1) the minor children have been exposed to Davidson's lesbian lifestyle; and (2) Davidson's live-in girlfriends and mother were raising the children. ¶ 4. After a hearing, the chancellor entered a temporary order that removed the children from Davidson's home and placed them in Coit's custody. After additional hearings, the chancellor issued his findings of facts and conclusion of law that modified the judgment of divorce and granted Coit permanent custody of the children.

¶ 5. Davidson appeals and raises the following issues: (1) the chancellor committed manifest error in granting the modification since there was no substantial change in circumstances since the original custody decree was entered; (2) the chancellor erroneously applied the Albright factors and neglected to make sufficient findings to support his decision; and (3) the chancellor placed too much weight on one individual Albright factor, specifically the moral fitness of the parents.

STANDARD OF REVIEW

¶ 6. This Court will not disturb the findings of a chancellor when supported by substantial evidence unless the chancellor abused his or her discretion, was manifestly wrong, clearly erroneous, or applied an erroneous legal standard. Sanderson v. Sanderson, 824 So.2d 623, 625-26(¶ 8) (Miss.2002).

ANALYSIS

I. Did the chancellor err by granting the motion for modification?

¶ 7. "In cases involving a request for modification of custody, the chancellor's duty is to determine if there has been a material change in the circumstances since the award of initial custody which has adversely affected the child and which, in the best interest of the child, requires a change in custody." Sanford v. Arinder, 800 So.2d 1267, 1271(¶ 15) (Miss.Ct.App. 2001). As such, the non-custodial parent must pass a three-part test: "a substantial change in circumstances of the custodial parent since the original custody decree, the substantial change's adverse impact on the welfare of the child, and the necessity of the custody modification for the best interest of the child." Id. at 1272(¶ 15) (quoting Brawley v. Brawley, 734 So.2d 237, 241(¶ 12) (Miss.Ct.App.1999)). This Court has routinely utilized this test in the area of child custody modifications. See Sanford, 800 So.2d at 1271(¶ 15); Thompson v. Thompson, 799 So.2d 919, 922(¶ 8) (Miss.Ct.App.2001); Brawley, 734 So.2d at 241(¶ 12). In order to clarify the type or magnitude of material changes that warrant a modification of custody, our supreme court explained that when the totality of the circumstances display a material change in the overall living conditions in which the child is found, which are likely to remain changed in the foreseeable future and such change adversely affects the child, a modification of custody is legally proper. Kavanaugh v. Carraway, 435 So.2d 697, 700 (Miss.1983).

¶ 8. In this issue, Davidson argues that Coit did not present sufficient evidence of the first part of the test — a substantial change in circumstances of the custodial parent since the original custody decree. Davidson claims that, at the time of the original divorce, both the court and Coit were aware that she was a lesbian and had a live-in girlfriend. Hence, Davidson reasons that the chancellor committed manifest error by granting the modification because a substantial change in circumstances has not occurred since the original custody decree was entered.

¶ 9. Davidson relies on the following language from Lambert v. Lambert, 872 So.2d 679, 684(¶ 21) (Miss.Ct.App.2003):

To permit a change in custody, there must first be a factual determination based on substantial evidence, presented by the petitioning party, that there has been a substantial and material change in circumstances since the divorce was granted adversely affecting the child and which ... are anticipated to be permanent or continuing such that they would warrant a change in custody. These changed circumstances must be such that they could not be anticipated at the time of the initial determination of custody and of such magnitude as to justify the drastic measure of change in custody.

(Emphasis added in Davidson's brief).

¶ 10. Indeed, Davidson's sexual preference for women was known at the time of the divorce and initial custody determination. However, Coit's motion for modification was not based on the mere assertion that Davidson was a lesbian. Instead, Coit presented evidence that indicated there was a substantial change in circumstances that has occurred since the original custody determination through the children's exposure to her lesbian sexual relationship and that the exposure has adversely affected the children.

¶ 11. Paul Davey, a qualified expert in the area of adolescent, child and family therapy, testified that since the custody award, the children have admitted to him that most of their primary care is provided by Davidson's live-in girlfriend and that they have been exposed to their mother's sexual behavior. Davey testified to the following:

Q. And has [their] mother's living arrangements had any impact and does her current living arrangement have an impact on these two little girls?

A. It appears so, yes sir.

Q. Okay. Tell the Court how this is having an impact on the two little girls.

A. The most current sessions — and I'm going to jump ahead away from the '96 visits and come forward to the visits that actually began in 2000 and this year because I think there is a difference between those periods of time.

Beginning in 2000 and this year, Marilyn began telling me about her mother's current live-in relationship, someone she identified as Nikki and then later as Tina and it turns out that this is actually the same person.

She began to talk with me about her mom and Nikki sharing the bedroom and them watching movies together in the living room.

On the appointment of March 23rd of 2000, she told me her mom and Nikki watched movies in the living room, quote, "there are naked women on the t.v. kissing each other and lying next to each other like this" and then she demonstrated by acting affectionate kissing and then she said, "yuk".

The girls reported — and again, more so Marilyn than Katy, Marilyn being the older child — that most of their primary care was provided by Nikki, that she was the one who took care of them and at the most recent appointments — and I'm coming forward now to appointments in October of last year and May of this year — what Marilyn and Katy told me was that Nikki took most of the care of them, that their mother had to rest when she got home and that their mother didn't feel like doing a lot with them and, so, it was Nikki who actually provided the care for them and played with them and did things with them.

Katy specifically at the visit of October of last year said that "Nikki took care of us, cooks for us, cleans the house and takes us places and plays with us. She fixes us breakfast and is good to us."

When asked about her mother, she said her mother didn't do too much, that she didn't feel good.

I asked her if that was true all of the time and she responded, "All the time."

I asked her if that was the case everyday and she responded, "Every day."

Q. Now, Mr. Davey, you have talked to the father. Do you think he is a fit person for custody of these two children?

A. Appears to be from my vantage point, yes, sir.

Q. And do you think — what is your opinion as to the present living arrangements with these two little girls living with their mother with the way that their mother is living?

A. They have had to make some adjustments because there has been more than one girlfriend who has been living in and Marilyn has gotten to the age where she has started to notice that her mother is sharing a bed with another woman and she is paying attention to that in a way that was different — that is different — from how she paid attention to it when she was younger.

When she was younger, it was something that was merely noticed and now there is more than just notice on Marilyn's part. She is paying attention to the fact that her mother is sharing the bed with another woman.

Q. Do you think that this activity of her mother's is detrimental in particular to Marilyn?

A. From the standpoint of her development, in my opinion, it appears to be so, yes, sir. She is noticing and paying attention to the fact that her mother is sharing a bed with another woman, she's — both of the girls have talked about the movies that their mother and her girlfriend watch with naked women rolling around together on the t.v.

Given the age of the girls particularly is not something that is not going to be particularly good for them mentally.

¶ 12. This Court has held that the sexual relations of an unmarried custodial parent cannot be the...