Hill v. Hill, No. 2004-CA-00312-COA.

Decision Date04 April 2006
Docket NumberNo. 2004-CA-00312-COA.
Citation942 So.2d 207
PartiesMary Pearson HILL (One and the Same as Mary Hill Jackson), Appellant v. Cary L. HILL, Jr., Appellee.
CourtMississippi Court of Appeals

James H. Herring, Canton, attorney for appellant.

Sharon Patterson Thibodeaux, Brandon, attorney for appellee.

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

LEE, P.J., for the Court.

PROCEDURAL HISTORY AND FACTS

¶ 1. Mary Hill Jackson and Cary Hill Jr. were married on January 21, 1996, and divorced on May 4, 1999. During their marriage Mary and Cary had one son, Chase. The parties agreed to a child custody and property settlement agreement which was approved by the chancellor and incorporated into the judgment of divorce. The parties agreed that they would have joint legal custody, and Mary would have primary physical custody of Chase. Mary and Cary also agreed that Cary would finance all of Chase's "daycare/preschool/kindergarten" expenses, and Cary would select the facility that Chase would attend.

¶ 2. In February 2002, Mary filed a petition to modify the judgment of divorce, seeking an increase in child support, an adjustment of the visitation schedule, and an order allowing Chase to attend kindergarten in Madison County. Cary answered, seeking sole physical custody, child support and attorney's fees. After a trial on the merits, the trial court granted primary physical custody to Cary and ordered Mary to pay child support.

¶ 3. It is from this ruling that Mary appeals, arguing six issues which we have framed as follows: (1) whether the trial court erred in modifying Chase's custody and granting Cary sole legal and physical custody and (2) whether the trial court erred in denying Mary's motion for relief from judgment. Finding no error, we affirm.

¶ 4. As a preliminary matter we address concerns raised by the parties regarding a conflict between the chancellor's amended opinion and amended final judgment, both of which were filed on March 12, 2004. Although the amended opinion awards Cary "sole legal and physical custody" of Chase, the amended final judgment orders that "Cary Hill shall have primary physical custody of Chase Hill subject to Mary's right to visitation with Chase." The final judgment further provides that the child custody and property settlement agreement entered into by Mary and Cary in 1999 "shall remain in full force and effect unless otherwise modified by this [o]rder."

¶ 5. Our supreme court has previously held that a chancellor's decision is not synonymous with the court's final judgment. Grey v. Grey, 638 So.2d 488, 492 (Miss.1994) (citing Banks v. Banks, 511 So.2d 933, 935 (Miss.1987)). Only a final judgment is subject to appeal. Id. Additionally, an opinion of the court does not necessarily form part of the judgment, but ordinarily represents the rationale for the judgment. See 46 Am.Jur.2d Judgments § 7 (1994). Although Grey and Banks address a conflict between a bench opinion and a judgment, and the case sub judice addresses a written opinion and a judgment, we agree that the chancellor's opinion is not the same as the final judgment. Accordingly, we review the chancellor's decision to modify Chase's physical, and not legal custody, as legal custody was not addressed in the amended final judgment of the court.

STANDARD OF REVIEW

¶ 6. Our standard of review for child custody cases is limited. The chancellor must be manifestly wrong, clearly erroneous, or have applied the wrong legal standard for this Court to reverse. Williams v. Williams, 656 So.2d 325, 330 (Miss.1995). The denial of a motion for relief under Rule 60(b) of the Mississippi Rules of Civil Procedure is reviewed for an abuse of discretion. Stringfellow v. Stringfellow, 451 So.2d 219, 221 (Miss. 1984).

I. DID THE TRIAL COURT ERR IN MODIFYING CUSTODY?

¶ 7. Mary argues that the chancellor should be reversed because he applied an erroneous legal standard in finding a material change in circumstance that had adversely affected Chase's welfare. Mary also argues that the chancellor erred in finding that Chase's best interests required a change in custody and that the chancellor erred in applying Riley v. Doerner, 677 So.2d 740, 743 (Miss.1996).

¶ 8. In a proceeding to modify custody, the party seeking a modification must prove (1) a material change in circumstances which adversely affects the welfare of the child and (2) the child's best interests requires a change in custody. Robison v. Lanford, 841 So.2d 1119, 1124(¶ 16) (Miss.2003) (citing Brocato v. Brocato, 731 So.2d 1138, 1141(¶ 9) (Miss. 1999)). As discussed by this Court in Parker v. South, 913 So.2d 339, 344(¶ 10) (Miss.Ct.App.2005), certain cases in Mississippi jurisprudence have divided these issues into a three-step analysis: "(1) that a substantial change in circumstances has transpired since issuance of the custody decree; (2) that this change adversely affects the child's welfare; and (3) that the child's best interests mandate a change of custody." Id. (quoting Mabus v. Mabus, 847 So.2d 815, 818(¶ 15) (Miss.2003)). The change in circumstances "is one in the overall living conditions in which the child is found. The `totality of the circumstances' must be considered." Tucker v. Tucker, 453 So.2d 1294, 1297 (Miss.1984) (citing Kavanaugh v. Carraway, 435 So.2d 697, 700 (Miss.1983)). For purposes of clarity, we will proceed with the three-step analysis.

(1) Was There a Material Change in Circumstances?

¶ 9. The trial court found that Mary afforded Chase little stability at home, including her involvement with a number of men since her divorce from Cary. The evidence presented at trial supports this conclusion.

¶ 10. While Mary and Cary's divorce was pending, Mary and Chase lived with a female co-worker, and Mary dated a man named Brad. Mary introduced Chase to Brad, taking Chase with her to Brad's apartment; however, Mary testified that Brad did not spend the night while Chase was present. Mary's relationship with Brad ended prior to her divorce from Cary, and Mary began dating a man named Steve. In October 1999, Mary and Steve purchased a house in which the couple lived with Chase and Steve's daughter. Mary testified that she and Steve did not share a bedroom until after she and Steve married.

¶ 11. Mary wed Steve on November 17, 1999, but they divorced in January 2001. During the divorce Mary and Chase moved into an apartment, and Mary began dating Darren, who Mary met through Wendy, a friend of Mary's. Mary testified that Chase was introduced to Darren as well. Mary also dated a neighbor, with whom she occasionally left Chase when she had to work late.

¶ 12. Mary developed a relationship with a doctor named Chris, and soon Mary and Chris became engaged. Mary testified that Chase's contact with Chris was limited, but that Chase was happy that Mary and Chris were planning to get married.

¶ 13. Chris was married to Lisa at the time he and Mary began their relationship, and, at the time of the modification hearing, Mary and Lisa were involved in litigation regarding the demise of Chris' and Lisa's marriage. The tensions between Lisa and Mary resulted in an accusation that Mary attempted to run Lisa off the road. Mary was subsequently arrested due to allegations that she was stalking Lisa, and, in turn, Mary sued Lisa for false arrest. The criminal charges were dismissed, but at the time of the hearing the civil actions were pending. Chase was not present in the vehicle during the alleged near accident.

¶ 14. All told, Mary had moved four times since the divorce, and Mary testified that she was planning to move again upon her marriage to Chris. The trial court found that Chase will have attended three different schools during his first three years of formal education: kindergarten in Madison, first grade in Flowood, and second grade in Clinton.

¶ 15. The trial court found that Mary could not provide Chase with a stable living environment, as evidenced by the fact that she moved four times, dated several men during the last three years, and had already been married, divorced and planned to remarry yet again since her divorce from Cary. The chancellor also found that Mary took unnecessary risks and "continued to exhibit reckless behavior," including dating a married man whose wife Mary characterized as a "psycho." The chancellor also found that Mary took unnecessary risks in printing and keeping e-mails from Chris which the chancellor characterized as pornographic.

¶ 16. Cohabitation between an unmarried man and woman "whether in adultery or fornication" is a crime in Mississippi. Miss.Code Ann. Sec. 97-29-1 (Rev. 2000). Notwithstanding such illegality, maintaining a sexual relationship outside the confines of marriage cannot be the sole ground for modifying custody. See Phillips v. Phillips, 555 So.2d 698, 701 (Miss. 1989); Cheek v. Ricker, 431 So.2d 1139, 1144 (Miss.1983); Sullivan v. Stringer, 736 So.2d 514, 518(¶ 19) (Miss.Ct.App.1999). Likewise, the custodial parent's relocation cannot be the sole ground for modifying custody. See Lambert v. Lambert, 872 So.2d 679, 685(¶ 24) (Miss.Ct.App.2003). However, considering the totality of the circumstances, including Mary's capricious relationships, Mary and Chase's inconsistent living situations, and Mary's "risk-taking," the chancellor found that a material change in circumstances had occurred. Giving due deference to the factual findings of the chancellor, we agree.

(2) Did the Change Adversely Affect the Child's Welfare?

¶ 17. Mary asserts that the chancellor erred in changing custody despite his finding that "[a]s of yet there has not been a demonstrated material adverse affect to Chase." (emphasis in original). Mary also argues that the chancellor improperly relied upon Riley v. Doerner, 677 So.2d 740, 743 (Miss.1996). The chancellor cited the following excerpt from Riley:

[t]hat where a child living in a custodial environment clearly adverse to the child's best...

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