McCracking v. McCracking, No. 1999-CA-00238-COA.

• Decision Date: 22 February 2000
• Docket Number: No. 1999-CA-00238-COA.
• Citation: 776 So.2d 691
• Parties: Eleridge E. McCRACKING, Jr., Appellant, v. Vivian McCRACKING (Brown), Appellee.
• Court: Mississippi Court of Appeals

776 So.2d 691

Eleridge E. McCRACKING, Jr., Appellant, v. Vivian McCRACKING (Brown), Appellee.

No. 1999-CA-00238-COA.

Court of Appeals of Mississippi.

February 22, 2000.

Andrew Edward Franz, Gulfport, Attorney for Appellant.

Mack A. Bethea, Gulfport, Attorney for Appellee.

BEFORE McMILLIN, C.J., IRVING, AND THOMAS, JJ.

McMILLIN, C.J., for the Court:

¶ 1. The case now before the Court comes on appeal from a post-divorce proceeding in which Eleridge McCracking sought certain relief relating to the minor children of the parties. McCracking petitioned to change custody of the two children from his former wife to him, and he asked the chancellor to punish his former wife for her contemptuous disregard of orders relating to visitation and sharing of the children's medical expenses. Vivian McCracking (Brown) responded, denying Mr. McCracking's entitlement to any such relief, asking that child support be increased, and requesting that the chancellor afford her some protection from what she perceived as Mr. McCracking's continuous harassment of her and disparagement of her to the children.

¶ 2. The chancellor denied Mr. McCracking's request for change of custody, substantially increased his child support obligation, and modified the previous visitation schedule to eliminate a mid-week overnight visit with him by the younger child.

¶ 3. Mr. McCracking perfected this appeal from the chancellor's decision in which he purports to raise four issues that, in his view, warrant reversal. The issues are (a) that the chancellor erred in not granting a change of custody or, at a minimum, substantially increased visitation to him because of the chancellor's misapplication of the "Albright" custody factors, (b) that Mr. McCracking's due process rights were violated by the chancellor's failure to properly apply the "Albright" factors to determine custody, the result being that the decision was against the weight of the evidence, (c) that the "Albright" factors and the "best interest of the child" standard are too vague, overbroad, and manipulable to form a proper basis for adjudicating custody questions, and (d) Mr. McCracking's Fourteenth Amendment right to due process was violated because he was denied an opportunity to review the proposed judgment prior to entry as required by Uniform Chancery Rule 5.04 and also because he "was not allowed to put on evidence in his case."

¶ 4. Rather than argue these issues separately, Mr. McCracking's brief consists of an unsubdivided argument that, in essence, advances the notion that the chancellor's decision was an abuse of discretion as being against the weight of the evidence. The brief, after the statement of the issues, makes no mention of the Fourteenth Amendment due process question arising out of his inability to review the proposed judgment prior to entry and does not factually support the proposition that he was denied an opportunity to fully develop his case by presenting evidence on the record. We, therefore, consider those matters to be abandoned. R.C. Petroleum, Inc. v. Hernandez, 555 So.2d 1017, 1023 (Miss.1990).

¶ 5. We find Mr. McCracking's argument that the chancellor abused his discretion when he refused to change custody of the two children from Mrs. Brown to Mr. McCracking to be singularly without merit. In order to change an existing custody order, the party seeking such change has the burden of showing that there has been a material change in the circumstances affecting the children, that the change is detrimental to the children's welfare, and that the best interest of the children would be advanced by shifting custody to a person other than the present custodial parent. Arnold v. Conwill, 562 So.2d 97, 99 (Miss.1990). Mr. McCracking's case consisted of allegations (a) that Mrs. Brown was leaving the younger child in the temporary care of the older daughter during the hours from school dismissal until Mrs. Brown arrived home from work and that the older daughter's boyfriend was occasionally in the home during that time, (b) that Mrs. Brown neglected the children while pursuing her own pleasurable existence as a frequenter of casinos and an abuser of alcohol, and (c) that Mrs. Brown's history of frequent marriages and resulting domestic instability was detrimental to the children's well-being.

¶ 6. The chancellor, while not totally comfortable with the presence of the older daughter's boyfriend in the home in an unchaperoned situation, nevertheless found the older daughter, who was fourteen years of age, was of sufficient maturity to properly care for her younger sister, age nine, during those afternoon intervals between school and the time Mrs. Brown arrived home from work. Mr. McCracking presented no evidence of any untoward event or improper occurrence at any time that the two children were home in their mother's absence. The chancellor considered the matter fully, as is evidenced by his well-thought-out opinion, and acted within the bounds of the discretion accorded him in reaching that decision. It is a decision beyond our authority to disturb under the limited abuse of discretion standard by which we review such determinations. Touchstone v. Touchstone, 682 So.2d 374, 377 (Miss.1996).

¶ 7. Mr. McCracking's allegations of neglectful behavior by Mrs. Brown in favor of a life devoted to gambling and alcohol, insofar as this record reveals, is without any...