Fletcher v. Shaw, 2000-CA-00212-COA.
| Decision Date | 20 November 2001 |
| Docket Number | No. 2000-CA-00212-COA.,2000-CA-00212-COA. |
| Citation | 800 So.2d 1212 |
| Parties | Tawnya Lynn FLETCHER, Appellant v. John Eric SHAW, Appellee. |
| Court | Mississippi Court of Appeals |
Arnold D. Dyre, Jackson, T. Swayze Alford, Oxford, Brian Austin Hinton, Jackson, for Appellant.
Rebecca C. Phipps, Corinth, for Appellee.
Before SOUTHWICK, P.J., THOMAS, and IRVING, JJ.
THOMAS, J., for the Court.
¶ 1. Tawnya Lynn Fletcher, the natural mother, appeals the lower court's order of custody modification which transferred custody of the minor child to John Eric Shaw, the natural father. Fletcher asserts the following issue:
I. THE CHANCELLOR COMMITTED REVERSIBLE ERROR IN ORDERING A MODIFICATION OF CUSTODY WITHOUT APPLICATION OF THE PROPER LEGAL STANDARD.
FACTS
¶ 2. Fletcher gave birth to Tara Shea Fletcher Shaw on June 19, 1991, in Fairfax, Virginia. Shaw did not learn that he was Tara's father until March of 1993 when a conclusive blood analysis made such a determination. Fletcher and Shaw were never married.
¶ 3. While Fletcher was residing in Maryland with the child, she agreed with Shaw to a custody and child support contract, which was legally validated by an appropriate Maryland court. This agreement granted custody of the child to Fletcher and Shaw was granted liberal visitation rights. Soon afterward, Fletcher and Tara moved to Corinth, Mississippi.
¶ 4. On January 19, 1999, Shaw filed a motion to modify the former order of custody, alleging a material change of circumstances warranting a modification of custody. On August 17, 1999, trial was held on the motion to modify custody. Shaw called Fletcher as an adverse witness. Fletcher opted to go ahead with her direct examination at that time. After Fletcher's testimony, Shaw called his brother and then Shaw himself testified on his own behalf. After his own testimony, Shaw rested. Fletcher presented Billy and Nita Ashcraft, a couple with whom she had lived while in Mississippi. At that time, Fletcher rested.
¶ 5. At the conclusion of the trial, the chancellor held that Shaw should be granted permanent physical custody of the child subject to reasonable visitation rights granted to Fletcher.
ANALYSIS
I. DID THE CHANCELLOR COMMIT REVERSIBLE ERROR IN ORDERING A MODIFICATION OF CUSTODY WITHOUT APPLICATION OF THE PROPER LEGAL STANDARD?
¶ 6. In a domestic case, such as the case at hand, the chancellor's findings will not be reversed unless manifestly wrong, clearly erroneous, or the proper legal standard was not applied. Bland v. Bland, 620 So.2d 543, 544 (Miss.1993). In showing by the preponderance of evidence that a material change in circumstances has occurred in the custodial home, the burden of proof is on the movant. Riley v. Doerner, 677 So.2d 740, 743 (Miss.1996).
¶ 7. In cases involving an initial award of custody, as in the case of most divorces, the chancellor is given considerable discretion so long as the chancellor follows the dictates of Albright v. Albright, 437 So.2d 1003, 1005 (Miss.1983), which provides that the chancellor consider the following factors in awarding custody:
¶ 8. Our supreme court has held that the basic application of the Albright analysis is to be applied in order to find the best interests of the child when a chancellor is to make a decision involving a custody dispute between the parents of an illegitimate child. Law v. Page, 618 So.2d 96, 101-2 (Miss.1993). This is true of any original decree of custody in a dispute between the natural parents of the child whether they were married or not. Id. However, unlike the situation presented in Law, the parents in the case at hand had a court approved contract establishing paternity and custody of the child. Miss.Code Ann. §§ 43-19-33(2) and 93-9-30. "The `material changes' standard used in modification proceedings is dependent on there being a prior determination of custody." Law, 618 So.2d at 101. Therefore, the "material change" modification standard applies in the situation at hand.
¶ 9. 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 interests of the child, requires a change in custody. Brawley v. Brawley, 734 So.2d 237 (Miss.Ct.App.1999); Bredemeier v. Jackson, 689 So.2d 770 (Miss. 1997); Bubac v. Boston, 600 So.2d 951 (Miss.1992); Phillips v. Phillips, 555 So.2d 698, 700-1 (Miss.1989); Pace v. Owens, 511 So.2d 489 (Miss.1987); Duran v. Weaver, 495 So.2d 1355 (Miss.1986); Smith v. Todd, 464 So.2d 1155 (Miss.1985); Tucker v. Tucker, 453 So.2d 1294, 1297 (Miss. 1984); Marascalco v. Marascalco, 445 So.2d 1380 (Miss.1984); Kavanaugh v. Carraway, 435 So.2d 697 (Miss.1983). Therefore, the non-custodial parent must satisfy 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." Brawley v. Brawley, 734 So.2d 237 (¶ 12) (Miss.Ct.App. 1999) (citing Bredemeier v. Jackson, 689 So.2d 770, 775 (Miss.1997)); Pace v. Owens, 511 So.2d 489 (Miss.1987); Duran v. Weaver, 495 So.2d 1355 (Miss.1986); Smith v. Todd, 464 So.2d 1155 (Miss.1985). This Court has also noted that "the `totality of the circumstances' must be considered." Wright v. Stanley, 700 So.2d 274, 280 (Miss.1997) (citing Ash v. Ash, 622 So.2d 1264, 1266 (Miss.1993)). Further, it is well settled that the polestar consideration in any child custody matter is the best interest and welfare of the child. Whittington v. Whittington, 724 So.2d 922 (¶ 10) (Miss.Ct.App.1998) (citing Albright, 437 So.2d at 1005).
¶ 10. In order to clarify the type or magnitude of material change that warrants 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, 435 So.2d at 700. The court has also stated that: "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 sufficient basis to seriously consider the drastic legal action of changing custody." Ballard v. Ballard, 434 So.2d 1357, 1360 (Miss.1983). However, "an isolated incident, e.g., an unwarranted striking of a child, does not in and of itself justify a change of custody." Tucker v. Tucker, 453 So.2d 1294, 1297 (Miss.1984). In Tucker, the court also made it clear that a modification of custody should never be made for the purpose of punishing or rewarding either parent. Tucker, 453 So.2d at 1297.
¶ 11. Plainly stated, a modification of custody is warranted in the event that the moving parent successfully shows that there has been a material change in the circumstances which has an adverse effect on the child and a modification of custody would be in the child's best interest.
¶ 12. With this legal standard in mind, we turn to the case at hand. In order to determine whether or not the chancellor was manifestly wrong, clearly erroneous or abused his discretion in applying the Albright factors, we review the record of the proceedings in the lower court.
¶ 13. The chancellor found that since the original decree of custody a substantial and material change in circumstances had occurred in the following ways: Fletcher displayed poor parenting skills, an unwillingness and capacity to provide primary child care, sporadic employment, questionable mental health, and a general lack of a...
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