Lindsey v. Willard

• Decision Date: 09 April 2013
• Docket Number: No. 2011–CA–01357–COA.,2011–CA–01357–COA.
• Citation: 111 So.3d 1260
• Parties: Jason LINDSEY, Appellant v. Tania (Lindsey) WILLARD, Appellee.
• Court: Mississippi Court of Appeals

111 So.3d 1260

Jason LINDSEY, Appellant

v.Tania (Lindsey) WILLARD, Appellee.

No. 2011–CA–01357–COA.

Court of Appeals of Mississippi.

April 9, 2013.

Luanne Stark Thompson, Aberdeen, attorney for Appellant.

Robert W. Davis Jr., Tupelo, attorney for appellee.

Before LEE, C.J., ISHEE and ROBERTS, JJ.

ROBERTS, J., for the Court:

¶ 1. The Itawamba County Chancery Court granted Tania Willard's motion to modify custody of her son, Tyler Lindsey. Tyler's father, Jason Lindsey, claims the chancellor erred when she found a material change in circumstances adverse to Tyler's best interests. Additionally, Jason claims that the investigatory guardian ad litem failed to properly conduct her investigation. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. Jason and Tania were divorced in December 2004. They agreed that they would share joint legal and physical custody of their eight-year-old son, Tyler. However, there was no set visitation or custody schedule. Jason was ordered to pay Tania $25 per week in child support.

¶ 3. The next year, both Jason and Tania moved for primary custody of Tyler. The chancellor did not modify the joint legal and physical custody arrangement, but Jason received physical custody of Tyler during the school year. Tania received custody of Tyler during the summer months. Additionally, neither party was obligated to pay child support.

¶ 4. In April 2010, Tania again moved to modify custody of Tyler. Jason responded with a counterclaim for contempt regarding unpaid medical bills. Jason also moved to modify the visitation schedule.

¶ 5. The parties went before the chancellor in December 2010. During that hearing, the chancellor heard testimony that Jason planned to divorce his new wife, Mandy Galloway Lindsey, who had moved out of Jason's home. According to multiple witnesses, Mandy was the cause of great instability with Jason. There were allegations that Mandy was having another man's ¹ baby, that she had numerous paramours,and that Jason would pay Mandy's bills while his own bills went unpaid. However, Tyler never testified negatively about Mandy.

¶ 6. There was also testimony that Tyler, who was thirteen years old at the time, spent extended periods of time alone because of Jason's work schedule. ² Kathleen Hoffman, who worked in the lunchroom at Tyler's school, testified that Tyler often did not have money for lunch. Tyler testified that he preferred to remain with Jason. After the December 2010 hearing, the chancellor entered an interim order. The chancellor declined to modify custody at that time, but the chancellor reserved the right to revisit the allegations after a hearing at a later date.

¶ 7. The parties reconvened for the second hearing in May 2011. At that hearing, the chancellor heard testimony that Tyler was no longer allowed to spend time with his grandfather, Jimmy, because of a disagreement between Jason and Jimmy.³ Furthermore, Jason and Mandy were considering rekindling their relationship. Rather than leaving Tyler with Jimmy, Jason often left Tyler with Mandy, or Tyler spent the night with friends. After the May 2011 hearing, the chancellor appointed a guardian ad litem to act in an investigatory capacity. The guardian ad litem later recommended that the chancellor modify custody of Tyler so that Tania had physical custody of him during the school year and Jason had physical custody during the summer. During the final hearing, Jason's attorney vigorously cross-examined the guardian ad litem. Jason and Mandy also testified in an attempt to clarify or dispute the guardian ad litem's recommendations and findings. Again, Tyler reaffirmed that he preferred to live with Jason. Additional facts will be discussed in the analysis, as necessary.

¶ 8. Ultimately, the chancellor found that there had been a material change in circumstances adverse to Tyler's best interests and awarded Tania custody of Tyler during the school year. Additionally, Jason received custody of Tyler during the summer. Jason appeals and claims the chancellor erred when she found that there had been a material change in circumstances adverse to Tyler's best interests. Jason also claims the guardian ad litem failed to adequately conduct her investigation.

STANDARD OF REVIEW

¶ 9. In domestic-relations cases, our standard of review is limited. In re Dissolution of Marriage of Wood, 35 So.3d 507, 512 (¶ 8) (Miss.2010). The findings of the chancellor “will not be disturbed unless [they are] manifestly wrong or clearly erroneous.” Lowrey v. Lowrey, 25 So.3d 274, 285 (¶ 26) (Miss.2009) (quoting Sanderson v. Sanderson, 824 So.2d 623, 625 (¶ 8) (Miss.2002)). “Under the standard ... utilized to review a [chancellor]'s findings of fact, particularly in the areas of divorce, alimony and child support, [the appellate court] will not overturn the [chancellor's decision] on appeal unless [her] findings were manifestly wrong.” Wood, 35 So.3d at 512 (¶ 8) (quoting Duncan v. Duncan, 774 So.2d 418, 419 (¶ 4) (Miss.2000)).

ANALYSIS

I. MATERIAL CHANGE IN CIRCUMSTANCES

¶ 10. Jason claims the chancellor erred when she held that Tania satisfied the burden of proof necessary to modify custody of Tyler. In her opinion and final judgment, the chancellor stated:

Tyler has continued to be fully responsible for preparing himself for school, usually being left alone by [Jason] for periods in excess of an hour prior to school. Tyler also continues to routinely spend approximately four hours alone after school prior to [Jason]'s return home from work when he is working the day shift. When [Jason] is working the night shift, Tyler is left in the care of [Jason]'s ex-wife, Mandy Galloway, who has an unstable relationship with [Jason], including having paramours at [Jason]'s residence while Tyler is present. Taking into account the totality of the circumstances, including the continuing increasing instability in [Jason]'s residence and the child's testimony regarding the conditions which have grown worse during the course of this litigation, the Court finds [Tania] has satisfactorily demonstrated a material and substantial change in circumstances that adversely affects the child.

¶ 11. To successfully move to modify custody of a child, a noncustodial parent must prove “(1) a material change in circumstances has occurred since the issuance of the judgment or decree sought to be modified, (2) the change adversely affects the welfare of the child, and (3) the proposed change in custody would be in the best interest of the child.” Cantin v. Cantin, 78 So.3d 943, 948 (¶ 15) (Miss.Ct.App.2012) (citation omitted). “The chancellor must consider the totality of the circumstances to determine whether there was a material change in circumstances.” Id. (citation and quotation omitted).

¶ 12. In appeals from child-custody decisions, our polestar consideration, like the chancellor's, must be the best interest of the child. Montgomery v. Montgomery, 20 So.3d 39, 42 (¶ 9) (Miss.Ct.App.2009) (quoting Hensarling v. Hensarling, 824 So.2d 583, 587 (¶ 8) (Miss.2002)). “So long as there is substantial evidence in the record that, if found credible by the chancellor, would provide support for the chancellor's decision, this Court may not intercede simply to substitute our collective opinion for that of the chancellor.” Hammers v. Hammers, 890 So.2d 944, 950 (¶ 14) (Miss.Ct.App.2004) (quoting Bower v. Bower, 758 So.2d 405, 412 (¶ 33) (Miss.2000)). “The chancellor has the sole responsibility to determine the credibility of witnesses and evidence, and the weight to be given each.” Barnett v. Oathout, 883 So.2d 563, 566 (¶ 6) (Miss.2004).

¶ 13. Jason's argument is predicated in part on the fact that the chancellor did not find that there had been a material change in circumstances adverse to Tyler's best interests after the first hearing during December 2010. Jason reasons that because the chancellor had declined to find a change in circumstances based on the evidence presented during the December 2010 hearing, the chancellor could not have reasonably found that a change was warranted after the July 2011 hearing.

¶ 14. Jason misinterprets the interim order that the chancellor issued after the December 2010 hearing. Although the chancellor stated that Tania had not demonstrated a material change in circumstances adverse to Tyler's best interests, the chancellor also stated that “this matter shall be set for review to determine the status of the situation at that time.” The chancellor also issued a supplemental opinion after her interim order. In her supplemental opinion, the chancellor stated: “[O]ut of an abundance of caution ... this cause shall be reviewed at the conclusion of the school year ... with neither party being prejudiced by the Court's present decision.” We interpret the chancellor's interim order and supplemental opinion as a temporary decision reserving the right to review the matter de novo during a subsequent hearing. A chancellor has the discretion to make temporary findings with the intent to conduct a de novo review of the question at a later date. See Blevins v. Bardwell, 784 So.2d 166, 170–71 (¶ 14) (Miss.2001).

¶ 15. A chancellor is not required to wait for proof that a custodial parent's actions have adversely affected a child. Ruth v. Burchfield, 23 So.3d 600, 606–07 (¶ 20) (Miss.Ct.App.2009). “[W]here a child living in a custodial environment clearly adverse to the child's best interest[ ] somehow appears to remain unscarred by his or her surroundings, the chancellor is not precluded from removing the child for placement in a healthier environment.” Riley v. Doerner, 677 So.2d 740, 744 (Miss.1996). In Ruth, this Court affirmed a chancellor's decision to deny a noncustodial parent's motion to modify child custody because the custodial parent had “removed the conditions that could have arguably had an adverse effect on [the child] had they been allowed to continue.” Ruth, 23 So.3d at 607 (¶ 20). But in this case, Jason...