Fox v. Fox

• Docket Number: 2022-CA-00918-COA
• Decision Date: 07 November 2023
• Parties: TAI CURRY FOX APPELLANT v. JOHN P. FOX III APPELLEE
• Court: Court of Appeals of Mississippi

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TAI CURRY FOX APPELLANT
v.
JOHN P. FOX III APPELLEE

No. 2022-CA-00918-COA

Court of Appeals of Mississippi

November 7, 2023

DATE OF JUDGMENT: 07/29/2022

RANKIN COUNTY CHANCERY COURT HON. JOHN C. McLAURIN JR. TRIAL JUDGE

ATTORNEY FOR APPELLANT: ROBERT RUSSELL WILLIARD

ATTORNEY FOR APPELLEE: CHRISTOPHER A. TABB

BEFORE CARLTON, P.J., WESTBROOKS AND EMFINGER, JJ.

CARLTON, P.J.

¶1. Tai Curry Fox (Curry) appeals the Rankin County Chancery Court's denial of her request to modify the child-custody agreement between Curry and her ex-husband, John Fox III (Fox). Finding error, we reverse the chancellor's judgment and remand this case for further proceedings consistent with this opinion.

FACTS

¶2. Curry and Fox divorced in 2012. The parties were awarded joint legal and physical custody of their minor child, G.F.,^[1] who was born in 2010. Curry and Fox eventually agreed to share physical custody of G.F. on a week-to-week basis. In April 2018, an order was

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entered reflecting the new week-to-week custody agreement.^[2]

¶3. In December 2018, Curry began working periodically as an emergency room veterinarian at a friend's practice in Florida. Due to the higher salary, Curry eventually began working full-time in Florida on the weeks when she did not have physical custody of G.F. In February 2021, Curry moved her permanent residence to Florida, but she maintained her apartment in Rankin County.

¶4. Curry eventually received an opportunity to buy the veterinary practice in Florida and open her own emergency room, which would require Curry to be in Florida full-time. On December 8, 2021, Curry filed a complaint for modification of custody, requesting sole physical custody of G.F.

¶5. At the hearing on Curry's complaint, the chancellor heard testimony from Curry, G.F., and Curry's mother, Kathy. Curry testified that her new employment as the owner of a veterinary clinic required her to be in Florida full-time; as a result, the week-to-week custody schedule would no longer be workable. G.F., who turned twelve years old on the day of the hearing, expressed his desire to live with Curry in Florida. G.F. also executed a "Child's Election Affidavit" stating his preference to live with Curry.

¶6. At the close of Curry's case-in-chief, Fox moved to dismiss Curry's complaint pursuant to Mississippi Rule of Civil Procedure 41(b). After hearing arguments, the chancellor ultimately granted Fox's motion to dismiss. On July 29, 2022, the chancellor

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entered an order denying the relief requested in Curry's complaint for modification and ruling that the parties would continue sharing joint legal and physical custody of G.F.

¶7. On August 8, 2022, Curry filed a motion for reconsideration and clarification of the chancellor's July 29, 2022 judgment. The chancellor entered an order denying Curry's motion for reconsideration. However, the chancellor clarified that Fox shall be required to pay one-half of the cost of sixth-grade tuition at St. Richard's Catholic School for the year 2021-2022 as his contribution to the financial cost of G.F.'s education.

¶8. Curry now appeals.

STANDARD OF REVIEW

¶9. We employ a limited review of a chancellor's denial of a request for modification of child custody based on a material change in circumstances. Page v. Graves, 283 So.3d 269, 274 (¶18) (Miss. Ct. App. 2019). We "will affirm findings of fact by chancellors when they are supported by substantial evidence unless the chancellor abused [his] discretion, was manifestly wrong, clearly erroneous or an erroneous legal standard was applied." Id. We review a chancellor's interpretation and application of the law de novo. Smith v. Smith, 318 So.3d 484, 491 (¶18) (Miss. Ct. App. 2021).

¶10. Additionally, "[w]e review a chancellor's decision to grant a Rule 41(b) dismissal in a modification of child custody action under the deferential substantial-evidence/manifest-error standard." Page, 283 So.3d at 274 (¶22). We have stated that "[a] judge should grant a motion for involuntary dismissal if, after viewing the evidence fairly, rather than in the light

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most favorable to the plaintiff, the judge would find for the defendant." Id. at (¶21). "The court must deny a motion to dismiss only if the judge would be obliged to find for the plaintiff if the plaintiff's evidence were all the evidence offered in the case." Id.

DISCUSSION

¶11. Curry argues that the chancellor erred by finding that her permanent move to Florida failed to constitute a material change in circumstances that would warrant modification of the parties' joint physical custody arrangement. Curry asserts the evidence shows that her permanent move to Florida would make the current joint custody arrangement impossible and impractical. Curry also argues that her permanent move's effect on the current custody arrangement would adversely affect G.F., and therefore modification was warranted. Curry further submits that the chancellor failed to consider the totality of the circumstances, including G.F.'s testimony, in determining whether a material change in circumstances had occurred.

¶12. When determining whether custody modification is warranted, Mississippi courts utilize a three-prong test. Hammons v. Hammons, 289 So.3d 1214, 1218 (¶16) (Miss. Ct. App. 2020). First, the party seeking modification must establish by a preponderance of the evidence that a material change in circumstances has occurred in the home of the custodial parent since the most recent custody decree. Id. Second, "the moving party must show that the change in circumstances has an adverse effect on the minor child." Id. at (¶17). Finally, "[m]odification must be in the best interest of the minor child." Id. at (¶18). "Determination

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of the child's best interest is based on an application of the Albright^[3] factors to the facts of the case." Id. at 1219 (¶18).

¶13. We first turn to examine whether Curry met her burden of proving that a material change in circumstances has occurred in the custodial home since the most recent custodial decree. "A change in circumstances is a change in the overall living conditions in which the child is found ...." Gainey v. Edington, 24 So.3d 333, 336 (¶11) (Miss. Ct. App. 2009) (internal quotation marks omitted) (quoting Tucker v. Tucker, 453 So.2d 1294, 1297 (Miss. 1984)). "In analyzing whether a material change of circumstances has occurred, the chancellor must consider the totality of the circumstances." Domke v. Domke, 305 So.3d 1233, 1240 (¶17) (Miss. Ct. App. 2020) (internal quotation marks omitted). "Events which would not, alone, be a sufficient material change may in combination provide a basis for modifying custody." Deborah H. Bell, Bell on Mississippi Family Law § 12.12[a], at 453 (3d ed. 2020). "A move by one joint custodian will almost always be a material change in circumstances warranting a change to sole physical custody in one parent." Id. §12.12[5][a], at 468; see also Elliott v. Elliott, 877 So.2d 450, 455 (¶18) (Miss. Ct. App. 2003) (recognizing that "the moving of one party is sufficient grounds for modification because it makes joint custody impractical or impossible").

¶14. The record reflects that in April 2018, Curry and Fox entered an agreed order reflecting that they would share joint physical custody of G.F. on a week-to-week basis. At

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this time, Curry worked at a small animal practice in Jackson, Mississippi. Curry testified that in December 2018, a friend asked Curry to come to Florida and help out at her veterinary practice there. Curry initially began working in Florida on the weeks that she did not have physical custody of G.F. On the weeks when she had physical custody of G.F., Curry worked part-time in Jackson.

¶15. Curry testified that she fell in love with her work in Florida and that it paid more than her job in Mississippi. In December 2020, Curry bought a house in Florida, but she still maintained her apartment in Rankin County. Curry filed a change-of-address form with the Rankin County...