Lambert v. Lambert, 2001-CA-01739-COA.

CourtCourt of Appeals of Mississippi
Citation872 So.2d 679
Docket NumberNo. 2001-CA-01739-COA.,2001-CA-01739-COA.
PartiesLytricia LAMBERT, Appellant, v. Travis LAMBERT, Appellee.
Decision Date28 October 2003

David L. Calder, University, attorney for appellant.

Joe Dale Walker, Monticello, attorney for appellee.

Before KING, P.J., BRIDGES and LEE, JJ.

KING, P.J., for the Court.

¶ 1. Lytricia Simmons Lambert and Travis Lambert agreed to a divorce based on irreconcilable differences and the Chancery Court of Lawrence County entered its decree on November 4, 2000, incorporating the terms agreed upon by the parties. The parties agreed that the mother would have primary physical custody of their minor child, William Travis Lambert, with the father given certain visitation rights.

¶ 2. On February 1, 2001, less than three months after the entry of the divorce, Travis filed a motion for modification of the custody, support, and visitation alleging a "material change in circumstances" because Lytricia "just this week moved from Hattiesburg, Mississippi to Batesville, Mississippi... making it impossible for the petitioner to have visitation with his minor child as set forth in the Final Decree of Divorce." After conducting a hearing, the chancery court granted Travis' motion and changed primary custody to him. Lytricia appeals from that judgment by the Lawrence County Chancery Court.

¶ 3. On appeal, Lytricia raises the following assignment of errors:

1. Whether Appellee Travis Lambert presented sufficient credible evidence to support his allegation that there had been a substantial change in the circumstances of the parties that was expected to continue and to adversely affect the best interest of the minor child, so as to change the terms and conditions of the custody agreement that had previously been established by the trial court was justified.
2. Whether the chancellor erred and/or abused his discretion by finding that there had been a material change in circumstances adverse to the best interest of the minor child, so that a modification of the original divorce and custody decree was warranted because Appellant Lytricia Simmons Lambert relocated her residence.
3. Whether the chancellor's findings of fact were supported by credible evidence, or whether he improperly applied the law in his decision to modify custody.
4. Whether the chancellor erred and/or abused his discretion by proceeding to an "Albright analysis" when there had been no credible evidence of a material change in circumstances that adversely affected the best interest of the minor child.
5. Whether the trial court erred and/or abused its discretion in shifting primary physical custody of the minor child to the father because the mother relocated to a different part of the state.
6. Whether the trial court erred and/or abused its discretion by punishing the mother for her relocation of her residence to a different part of the state by changing primary physical custody of the minor child to the father, and placing the primary burden of traveling on the mother for the purposes of visitation.

¶ 4. Finding that the chancellor committed error in changing custody, this Court reverses and renders the decision of the chancery court.

FACTS

¶ 5. At a hearing on July 24, 2000, Lytricia Simmons Lambert and Travis Lambert appeared before the chancellor and agreed to an irreconcilable differences divorce including an agreement as to property, child custody, support and visitation. They agreed to joint legal custody of their child, William Travis Lambert, born on December 26, 1992, with Lytricia having primary physical custody during the school year, subject to Travis' having defined visitation. Travis was allowed a mid-week visitation period each Wednesday from the time the child got out of school until 8:00 p.m. and overnight visitation two weekends per month, plus extended visitation during the summer months.

¶ 6. At the time of the July hearing, as evidenced by the discussions concerning visitation, Lytricia was in the process of moving from the marital home near Monticello to Hattiesburg. Unable to find fulltime employment in Hattiesburg, Lytricia and her son moved to her parents' home in Pope, Mississippi, in late January 2001. William was enrolled in the second grade at Pope Junior High School in the South Panola School District.

¶ 7. After working part-time with her father and for Cross Mark, Lytricia found full-time employment as a dispatcher with the Batesville Police Department in June 2001. She worked two days on and two days off, from 6:00 a.m. to 6:00 p.m., earning approximately $1,500 per month.

¶ 8. As part of the divorce agreement, Travis retained possession of the marital domicile in Jayess, Mississippi where he still lives. His mother, brother and sisterin-law live nearby. Travis had worked for Georgia-Pacific in Monticello as a life truck operator in the shipping department for over seven years at the time of the modification hearing. He works fourteen days on and fourteen days off, working from either 7:00 a.m. to 7:00 p.m. or 7:00 p.m. to 7:00 a.m.

¶ 9. For reasons which are not clear, after the July 2000 hearing, the chancellor did not sign the order granting the parties' divorce until October 23, 2000, and the order was not entered by the chancery clerk until November 4, 2000.

¶ 10. In his motion for modification of custody, filed less than three months after the divorce decree, Travis alleged a "material change in circumstances" because Lytricia "just this week moved from Hattiesburg, Mississippi to Batesville, Mississippi... making it impossible for the petitioner to have visitation with his minor child as set forth in the Final Decree of Divorce." No other grounds were alleged for the modification.

¶ 11. At the June 12, 2001 hearing on his motion, Travis testified and presented four other witnesses: Lytricia Lambert as an adverse witness; Paul Davey, a professional counselor who evaluated William; Karen Lambert, Travis' sister-in-law; and Wallene Lambert, Travis' mother. After Travis rested, counsel for Lytricia moved to dismiss the motion based on the failure of Travis to prove his case. The chancellor inexplicably denied the motion because Lytricia had filed a motion seeking modification of the weekday visitation. The chancellor stated that "there's no doubt that a material change in circumstances adversely affecting the child has been met in these circumstances, so therefore the motion will be overruled." The chancellor gave no further explanation.

¶ 12. After Lytricia presented her witnesses, the chancellor went through the Albright factors and awarded primary physical custody of the minor child to Travis during the school year with Lytricia having custody during the summer months. The noncustodial parent would also have two weekends per month visitation and additional visitation as provided for holidays. Significantly, the court also allowed Lytricia to exercise a mid-week visit from the time school is out until 8:00 p.m., but only if she were willing to drive the full distance back and forth. Under the previous arrangement, Lytricia drove William to Jackson so that Travis could have his mid-week visitation.

¶ 13. Near the end of the hearing, counsel for Lytricia moved the court "for findings of fact as to what are the substantial and material change in circumstance and what adverse affects on the child." The chancellor stated:

I think the Court has done it. But just so we'll make sure. The adverse affect on the child is the fact that the child is— a divorce decree that wasn't finalized until November. In February the visitation became a problem because the mother moved. And the therapist has— or the wife's therapist, as well as the wife, testified that the child has anxiety and that it is not good for the child. So that's got to be an adverse effect on the child, the fact that he moved and the prior decree could not be fully enforced as it was at the time of the divorce.

DISCUSSION

Travis Lambert's Failure to Cite Legal Support

¶ 14. In response to the brief submitted by Lytricia Lambert, Travis Lambert submitted a brief consisting of eight pages which contained no specific reference to any legal authorities in support of his arguments. It is well established that appellate courts in Mississippi will not review any issues on appeal if the party fails to cite relevant authority in support of his or her arguments. See, e.g., Blue v. State, 825 So.2d 709, 712

(¶ 10) (Miss.2002); Hankins, v. Hankins, 729 So.2d 1283, 1286(¶ 11) (Miss.1999); Grey v. Grey, 638 So.2d 488, 491 (Miss.1994). In light of this authority, the Court is not required to address the arguments raised by Travis Lambert in his brief because they are not supported by any legal authority or appropriate citations to the record.

¶ 15. This rule has also been applied in the context of a custody and support decision where the appellee failed to file a substantive brief in opposition to the issues raised by the appellant. In Roberts v. Brown, 805 So.2d 649 (Miss.Ct.App.2002), the father/appellant petitioned the court to terminate his support obligations based on the deterioration or non-existence of the parent/child relationship. The court denied his request to have his child support obligations terminated. On appeal, the father argued that the decision of the chancellor was manifestly wrong and that he should not be required to continue child support since the child had no contact with him and the mother/appellee had not encouraged the child to maintain contact with the father. See Id. at 652(¶ 13). The appellee/ mother did not file an appellee's brief. The Court held that the father was entitled to terminate his child support obligations, stating:

The standard of review in child support cases is that a chancellor's ruling will remain undisturbed unless there is a showing of manifest error. Westbrook v. Oglesbee, 606 So.2d 1142, 1146 (Miss
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