Glissen v. Glissen
| Decision Date | 01 March 2005 |
| Docket Number | No. 2003-CA-02322-COA.,2003-CA-02322-COA. |
| Citation | 910 So.2d 603 |
| Parties | Shelly Dawn GLISSEN, Appellant v. Jody Shane GLISSEN, Appellee. |
| Court | Mississippi Supreme Court |
Tina Lorraine Nicholson, Jackson, attorney for appellant.
Danny L. Lowrey, Corinth, attorney for appellee.
Before LEE, P.J., MYERS and CHANDLER, JJ.
CHANDLER, J., for the Court.
¶ 1. Shane Glissen filed a motion for change of custody for his daughters after he discovered that his ex-wife, Shelly Glissen, had been living with a man out of wedlock. The Alcorn County Chancery Court held that Shelly demonstrated questionable judgment in associating with her new boyfriend, found that Shelly had not been truthful with the court, and found that the effects of Shelly's new relationship constituted a material change in circumstances that adversely affected the girls. The chancellor went on to find that the girls' best interests would be served by allowing Shane to have custody of the girls. Shelly appeals, raising the following issues:
I. WHETHER THE CHANCELLOR ERRED IN FINDING A MATERIAL CHANGE IN CIRCUMSTANCES THAT ADVERSELY AFFECTED THE CHILDREN
II. WHETHER THE CHANCELLOR ERRED IN FINDING THAT SHELLY WAS MORALLY UNFIT TO HAVE CUSTODY OF HER CHILDREN
III. WHETHER THE CHANCELLOR ERRED IN ITS EVALUATION OF THE ALBRIGHT FACTORS
¶ 2. Finding no reversible error, we affirm.
FACTS
¶ 3. Shelly Dawn Glissen and Jody Shane Glissen divorced on June 7, 1995. The couple produced two children, Erin Lindsey Glissen, born January 13, 1991, and Dana Nicole Glissen, born October 28, 1993. The divorce decree awarded permanent physical custody of the children to Shelly. In 1998, Shelly moved to Mesquite, Texas, with her children.
¶ 4. On July 31, 2001, the Alcorn County Circuit Court entered an order of temporary custody. It allowed Shelly to retain physical custody, but it granted temporary custody of the children to Shane for the 2001-2002 school year for the purpose of enrolling the children into the Alcorn County School District. The court entered another temporary custody order on August 29, 2002. The 2002 order was identical to the 2001 order, except that it pertained to the 2002-2003 school year.
¶ 5. After the end of the 2002-2003 school year, and the expiration of the temporary custody, Shane requested that the court give him permanent physical custody of Erin and Dawn, on the grounds that he had remarried and was able to provide a stable home for the children. Shane alleged a material change in circumstances by stating that Shelly was living with a man out of wedlock. The Alcorn County Chancery Court conducted a hearing on September 17 and 18, 2003, to determine whether a change in custody was warranted.
¶ 6. In August 2002, and continuing until the day of the hearing, Shelly began dating a man named Brent Nixon. The chancellor was disturbed with the actions of Shelly in choosing Nixon for a boyfriend, and he was concerned that Nixon would be a poor role model as a potential stepfather.1 The chancellor found that Shelly had been cohabitating with a married man.2 The chancellor found that the continuing effect of this cohabitation led to a potential for a material change in circumstances. In addition to the cohabitation, the chancellor was concerned that Shelly was living with a convicted felon, which Shelly testified she discovered the day of the hearing. Nixon also declared bankruptcy, and his home and car were repossessed as a result of this bankruptcy. The chancellor questioned Shelly's ability to take care of the girls if she is living with a convicted felon who is bankrupt. He also questioned Shelly's judgment because she was unaware of Nixon's felony conviction until the day of the hearing.3
¶ 7. The testimony at the hearing showed Nixon to be a man of questionable character. Nixon's ex-wife testified that Nixon's probation following his felony conviction was revoked for drug use. She testified that Nixon had a history of drug use and drinking problems and had become violent. She testified that he was often drunk when he came to pick up his children. There were assault charges placed against Nixon in August 2001. She testified that Nixon had visitation with his own children for forty-five days in the summer, but after one week he told his ex-wife to come get the children. She testified that Nixon has not kept a job for more than three months. At the time of the hearing, he had not paid child support in six months and owed her $4,000 in child support.
¶ 8. Although Shelly and Nixon both denied that they were living together, the chancellor found that Shelly and Nixon had been cohabitating. This finding was based on the testimony of Nixon's ex-wife and the Glissens' younger daughter, Dana. The chancellor found that Shelly's association with Nixon and her efforts to downplay the seriousness of her relationship with Nixon constituted a material change in circumstances. While Shelly testified that she was a person of high morals and taught the children moral principles, the chancellor questioned the sincerity of this testimony. He said, "Her actions don't backup her words." Shelly's relationship with Nixon was serious enough that Nixon, a bankrupt man who owed $4000 in child support at the time of the hearing, was able to find money to pay for a flight from Dallas to Memphis in order to testify.4 The chancellor found that Shelly and Nixon were not being truthful with the court. The court acknowledged that the effects of Shelly's cohabitation had not adversely affected the girls at the time of the hearing, because the girls were with their father during the cohabitation. However, the court found a material change in circumstances because the chancellor was concerned with Shelly's living arrangement and could not find that "the foreseeable future will be any different in the household of a lady that is seeking to retain custody of these children."
¶ 9. After the chancellor found that there was a material change in circumstances that were adverse to the well-being of the girls, the chancellor considered whether a change of custody would be in the girls' best interests. He evaluated the testimony of Shane's current wife and the girls' stepmother, Mandy Glissen. He found Mandy to be one of the most credible witnesses he has ever heard on the witness stand, and that she was fully capable of taking care of the girls. The chancellor applied the eleven factors for making a custody decision as announced in Albright v. Albright, 437 So.2d 1003 (Miss.1983). The chancellor ultimately found that the Albright factors favored Shane. Specifically, the chancellor found that Shane's employment situation was more stable; that Shane demonstrated better moral fitness; that the school in Alcorn County was better for the girls than the school in Texas; that the father offered a more stable home; and that most of the girls' family lived in Mississippi.
¶ 10. Shelly argues that Shane failed to prove either a material change in circumstances or that Shelly's lifestyle had an adverse effect on the children. She also argues that the chancellor erred in allowing his personal, "old fashioned" values to influence the consideration of the case.
ANALYSIS
¶ 11. The law with regard to modification of a custody decree is well-settled. First, the moving party must prove by a preponderance of the evidence 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. Ash v. Ash, 622 So.2d 1264, 1266 (Miss.1993). Second, once such an adverse change has been shown, the moving party must show by like evidence that the best interest of the child requires the change of custody. Pace v. Owens, 511 So.2d 489, 490 (Miss.1987).
¶ 12. Chancellors are awarded broad discretion in domestic relations cases. With respect to each issue, our standard of reviewing the chancellor's decision is clear: "This Court will not overturn the decision of a chancellor in domestic cases when those findings are supported by substantial evidence unless the chancellor abused his discretion, was manifestly wrong, or applied an erroneous legal standard." Kennedy v. Kennedy, 650 So.2d 1362, 1366 (Miss.1995).
¶ 13. In setting the stage for his findings, the chancellor noted the change in marital status of each party. Shelly claims that it was error for the chancellor to have considered the fact that Shane had remarried and that Shelly had not remarried to be a material change in circumstances. The court stated:
What has happened then to show a substantial and material change in circumstances of the parties as it affects these children? If there has been how has that adversely affected the children? We have got to get by those first two steps. And the testimony that we see in this is that, of course Mrs. Glissen desires to retain custody of these children. She has not remarried. The father, the plaintiff in this case, the movant, has remarried and established, obviously, a good home for these children.
¶ 14. Shelly correctly notes that Mississippi law "has long held that remarriage itself does not constitute a material change in circumstances that would justify a change of custody." Robison v. Lanford, 841 So.2d 1119, 1123(¶ 14) (Miss.2003) (citing Allen v. Allen, 243 Miss. 23, 33, 136 So.2d 627, 632 (1962)). The chancellor made it clear in his opinion that the material change in circumstances that justified a change of custody was Shelly's association with a man of questionable character and not the parties' change in marital status. This issue is without merit.
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