Elliott v. Elliott, 2002-CA-00846-COA.

• Decision Date: 28 October 2003
• Docket Number: No. 2002-CA-00846-COA.,2002-CA-00846-COA.
• Citation: 877 So.2d 450
• Parties: Catherine Ann ELLIOTT, Appellant, v. George Woods ELLIOTT, Jr., Appellee.
• Court: Mississippi Court of Appeals

877 So.2d 450

Catherine Ann ELLIOTT, Appellant, v. George Woods ELLIOTT, Jr., Appellee.

No. 2002-CA-00846-COA.

Court of Appeals of Mississippi.

October 28, 2003.

Rehearing Denied February 3, 2004.

Certiorari Denied July 15, 2004.

Stephen L. Beach, Jackson, attorney for appellant.

Debra Lynn Allen, Jackson, attorney for appellee.

Before McMILLIN, C.J., BRIDGES and THOMAS, JJ.

BRIDGES, J., for the Court.

¶ 1. George and Catherine (also referred to in the record as Catharine and hereinafter called "Cathy") Elliott were divorced by a judgment of divorce citing irreconcilable differences. There were two children born to the marriage, Justin and Amie. There was a judgment modifying the original judgment of divorce and the court awarded joint legal and physical custody of the two children to the parties. The judgment modified visitation so that the parties shared parenting with Cathy having the children three days a week and twenty-four weekends a year and George having the children two days a week and twenty-eight weekends a year.

¶ 2. Cathy filed a petition for modification stating that she had moved to Flagstaff, Arizona, because she was in a "desperate financial situation" and had to move to earn more money. George filed a counterclaim for contempt and modification seeking to have Cathy held in contempt and seeking to modify the custodial arrangement to award him sole physical and legal custody of Justin and Amie.

¶ 3. The chancellor found Cathy to be in contempt of court, found that the move to Arizona constituted a material change in circumstances such that modification of the custody arrangement was warranted, and awarded George sole physical and legal custody. Cathy was awarded certain specific visitation rights. Cathy filed a motion for a new trial, or in the alternative, to alter or amend the judgment which was later denied by the chancellor. Cathy now appeals to this Court.

STATEMENT OF THE ISSUES

I. WHETHER THE CHANCERY COURT ERRED IN GRANTING THE COUNTERCLAIM FOR MODIFICATION AND CONTEMPT OF THE FINAL JUDGMENT OF THE DIVORCE AND AWARDING FULL CUSTODY OF THE MINOR CHILDREN TO GEORGE ELLIOTT.

II. WHETHER THE CHANCERY COURT ERRED IN FINDING CATHERINE ELLIOTT IN CONTEMPT RESULTING IN INCARCERATION.

FACTS

¶ 4. Cathy and George Elliott were divorced on grounds of irreconcilable differences on June 19, 1997, in the Chancery Court of Madison County. Cathy and George had two children born of the marriage, Justin Garrit Elliott and Amie Catharine Elliot. Originally, Cathy had primary custody under the technical terms of the agreement and George had visitation. However, within two to three weeks after the divorce, Cathy and George established a joint parenting relationship, which rotated physical custody to the benefit of all and with the children never having to attend daycare.

¶ 5. On issues surrounding visitation rights and payment of insurance and medical expenses, the parties each filed petitions for contempt and modification of the divorce decree. After a hearing, the chancellor held that Cathy was in contempt of court for violation of the final judgment of divorce regarding Father's Day visitation. In addition, the court also modified said final judgment to change custody of the Elliotts' minor children to joint legal and physical custody and rearranged the visitation rights of Cathy and George.

¶ 6. Following the decision of the chancellor, Cathy filed a motion for a new trial, amendment of judgment, and for findings of fact and conclusions of law. After a hearing was conducted on this motion, the chancellor elaborated on his findings of fact but made no conclusions of law on the record. The chancellor also reaffirmed his decision to change custody to joint legal and physical custody with primary physical custody to Cathy.

¶ 7. After applying for several new positions in her capacity as a registered nurse, Cathy received an offer of employment in Flagstaff, Arizona, that would increase her income from around $38,000 to around $56,000 per year. Cathy filed a petition for modification to change George's visitation rights based on her move to Arizona and she also filed a notice of change of address pursuant to Rule 8.06 of the Mississippi Uniform Rules of Chancery Court.

¶ 8. In response to Cathy's move, George filed a counterclaim for contempt and modification and alleged that Cathy was in contempt of court for moving to Arizona and that the chancery court should grant full custody of the minor children to him for this action. George's counterclaim also requested a temporary order placing Cathy in jail for moving the children to Arizona.

¶ 9. A hearing was held on the motions filed by the parties before Chancellor Gail Shaw-Pierson, who was assigned to the case after Chancellor Lutz withdrew as the chancellor. At the conclusion of the testimony given by witnesses, the chancellor immediately ordered that Cathy be placed in the custody of the Madison County Sheriff and incarcerated until the minor children were brought back to Mississippi. After arrangements were made to transport the minor children back to Mississippi, Cathy was released from jail and the court reconvened the hearing.

¶ 10. At the conclusion of the hearing, the chancellor opined that Cathy had come before the court with unclean heads and denied her petition for modification. She also found that Mississippi was the "home state" of the minor children and that the actions of Cathy, in moving to Arizona with the children, was "tantamount to parental kidnapping but for the grant of joint physical and legal custody." She then granted sole physical and legal custody of the minor children to George with specified visitation granted to Cathy and also released Cathy from incarceration.

¶ 11. Again, Cathy filed a motion for a new trial or in the alternative to alter or amend the judgment, which motion was denied by order of the court. Cathy now appeals to this Court.

ANALYSIS

I. WHETHER THE CHANCERY COURT ERRED IN GRANTING THE COUNTERCLAIM FOR MODIFICATION AND CONTEMPT OF THE FINAL JUDGMENT OF THE DIVORCE AND AWARDING FULL CUSTODY OF THE MINOR CHILDREN TO GEORGE ELLIOTT.

¶ 12. Our standard of review of the decision of a chancellor is limited and we will reverse only where the decision is manifestly wrong or clearly erroneous or the chancellor has applied an erroneous legal standard. Creel v. Cornacchione, 831 So.2d 1179, 1183(¶ 14) (Miss.Ct.App.2002).

¶ 13. In considering whether a change in custody is warranted, the Court looks to the following:

First, a party must show that since entry of the judgment or decree sought to be modified, there has been a material change in circumstances which adversely affects the welfare of the child. Smith v. Jones, 654 So.2d 480, 486 (Miss.1995). Second, the party must also show that the best interest of the child requires a change in custody. Id. We further note that not every change in circumstances is so adverse that a modification of custody is warranted; however, the chancellor must consider the circumstances of each case in light of the totality of the circumstances. Ash v. Ash, 622 So.2d 1264, 1266 (Miss.1993). However, "[i]n all child custody cases, the polestar consideration is the best interest of the child." Sellers v. Sellers, 638 So.2d 481, 485 (Miss.1994).

Creel, 831 So.2d at 1183(¶ 15).

¶ 14. This Court in Sanford v. Arinder stressed that "in a custody modification proceeding, the non-custodial parent's request does not simply mean a re-weighing of the Albright factors to see who now is better suited to have custody of the child.¹ Although a re-weighing of Albright factors may be triggered, in reviewing the circumstances, there must be shown, we reiterate, a material change and not just a change in circumstances, that has had an adverse affect on the child and which requires, or mandates, a change in custody for the best interests of the child." Sanford v. Arinder, 800 So.2d 1267, 1272(¶ 16) (Miss.Ct.App.2001).

¶ 15. 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 test has routinely been utilized by this Court in the area of child modifications. See Sanford, 800 So.2d at 1271

(¶ 15); Brawley, 734 So.2d at 241(¶ 12).

¶ 16. The Mississippi Supreme Court explained in Kavanaugh v. Carraway, that when the totality of the circumstances displays 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). The Mississippi Supreme Court also stated: "It 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 [a] sufficient basis to seriously consider the drastic legal action of changing custody." Ballard v. Ballard, 434 So.2d 1357, 1360 (Miss.1983).

¶ 17. With this legal standard in mind, we turn to the present case. When looking to the first part of the modification test, whether there was a substantial change in circumstances of the custodial parent since the original custody decree was entered, we look to several previous cases decided by this Court.

¶ 18. Although the appellate courts have repeatedly held that the mere moving of one party or the other is insufficient grounds for modification of child custody, those cases involved visitation. There are cases, however, which state that the moving of one party is sufficient grounds for modification because it makes joint custody...