Mosley v. Atterberry, 2000-CA-01866-SCT.

• Decision Date: 20 June 2002
• Docket Number: No. 2000-CA-01866-SCT.,2000-CA-01866-SCT.
• Citation: 819 So.2d 1268
• Parties: Phillip MOSLEY, Sr. v. Angela ATTERBERRY.
• Court: Mississippi Supreme Court

819 So.2d 1268

Phillip MOSLEY, Sr. v. Angela ATTERBERRY.

No. 2000-CA-01866-SCT.

Supreme Court of Mississippi.

June 20, 2002.

Lisa Mishune Ross, Ridgeland, attorney for appellant.

Melissa Lynn Gearhart, Charlotte, NC, attorney for appellee.

Before SMITH, P.J., COBB and DIAZ, JJ.

COBB, J., for the court.

¶ 1. On October 22, 1999, the Lauderdale County Chancery Court granted a divorce to Phillip Mosley, Sr. and Angela Mosley (now Atterberry) on grounds of irreconcilable differences. In the same hearing, the chancellor awarded custody of the couple's minor children, Roshonda and P.J., to Angela and directed Phillip to pay child support and alimony to Angela. Phillip has since appealed the divorce decree to this Court, which we recently affirmed in part and reversed in part, in Mosley v. Mosley, 784 So.2d 901 (Miss.2001)(Mosley I). ¶ 2. Only four months after the final judgment was entered, during the pendency of Mosley I, Phillip filed a motion seeking modification of custody, child support and alimony. The chancellor modified the custody arrangement and child support in part, denying the rest of Phillip's motion. Aggrieved, Phillip now raises numerous issues on appeal, including that Angela's false testimony contaminated the record sufficiently to warrant modification of custody; that alimony should be terminated due to Angela's post-divorce sexual conduct; that he should be reimbursed for child support paid when the child was not with Angela; and that custody of his son should be granted to him. He also raised three issues which were not raised at the trial level, at least insofar as the record before us reflects, and thus are not properly before this Court: namely, that the chancellor failed to strike Angela's false testimony, that the modified child support was in excess of the 14% guideline, and that Angela should have to pay child support to him for Roshonda. Those which are properly before this Court can best be summed up in Phillip's final assignment of error, as modified:

WHETHER THE CHANCELLOR WAS MANIFESTLY WRONG AND/OR ABUSED HER DISCRETION IN FINDING THAT THERE WAS NOT SUBSTANTIAL EVIDENCE TO WARRANT A MODIFICATION IN CUSTODY AND OTHER MODIFICATIONS REQUESTED.

¶ 3. Because we conclude that the chancellor adequately considered the facts, applied the correct law, was not manifestly wrong and did not abuse her discretion, we affirm.

FACTS

¶ 4. The facts surrounding the divorce of Phillip and Angela are fully explained in Mosley I, 784 So.2d at 902. Briefly stated, the chancellor heard arguments from both sides before granting a divorce based on irreconcilable differences. Id. at 903. After an on-the-record review of the Albright factors, the chancellor awarded custody of both children to Angela, along with periodic alimony of $150 a month and lump sum alimony in the amount of $150 a month until those payments totaled $10,000. Id. The chancellor also ordered that Phillip pay child support for both children, in the total sum of $600. Id.

¶ 5. On appeal, we noted that Roshonda had actually lived with Phillip during the time that Phillip had paid child support to Angela, and we held that Phillip was entitled to reimbursement for part of that child support in an amount to be determined on remand. Id. at 905. We affirmed the chancellor on all other issues. Id. at 910.

¶ 6. Four months after the chancellor's initial ruling, and before Mosley I was decided, Phillip filed a petition for modification (then later an amended petition) in which he alleged, inter alia, that there had been substantial and material changes in the circumstances which warranted a modification of custody and support of his daughter Roshonda and son, Phillip, Jr. (P.J.). Specifically, Phillip claimed in his petition:

1) that Angela continued to have an adulterous, out-of-wedlock and abusive relationship with her live-in boyfriend, had become pregnant by him, and had lied about both the relationship and the pregnancy during the divorce hearing;

2) that Angela had consistently refused to provide Phillip with her address or telephone number, in violation of UCCR 8.06, and forced Phillip to pick P.J. up at a local sheriffs office for visitation;

3) that Angela had refused to take custody of Roshonda and denied Roshonda's attempts to visit, and that he was entitled to reimbursement of the child support payments he made to Angela during the time Roshonda was in his custody;¹

4) that Angela had fraudulently used Roshonda's social security number to obtain credit for herself; and

5) that Angela has not been gainfully employed since gaining custody of the children and will not maintain stable employment.

¶ 7. Angela did not file any response to the petition, but addressed these allegations in her response to interrogatories and during her testimony at the modification hearing. She testified that she still saw her boyfriend on weekends and that she was pregnant by him at the time of the divorce, but did not know it at that time.² Phillip testified that he knew about the relationship between Angela and her boyfriend at the time of the divorce, and had known about it since May of 1997.

¶ 8. Angela admitted that she had not been timely in advising of her new addresses and explained that during the year between the divorce hearing and the modification hearing, she had lived at three different addresses: first, with two friends for a couple of weeks; next she moved in with her boyfriend for approximately 4 months until she "could get on her feet;" and finally she rented a three-bedroom, two-bath townhouse where she has lived ever since, testifying that her rent was current and "paid up for three months." She admitted that her boyfriend stays at her residence occasionally on weekends when he is in town. Phillip testified that on one occasion when he came to get P.J. for visitation, he could not find her at the first address she had given. However, on that occasion he located her by telephoning and getting the new address. There was no testimony that Angela's failure to notify was done deliberately or to thwart the visitations with P.J.

¶ 9. Angela also testified that she had for some time been gainfully self-employed in the resale business, selling clothes, furniture and other things, and had recently obtained a business license to open "Angle's ReSale Shop" in the Atlanta area.

¶ 10. The chancellor heard testimony from Roshonda (then 18 years old and a student at Meridian Community College), as well as from Phillip and Angela, with regard to the allegations that Angie had refused to take custody of Roshonda and had denied her visitation. Roshonda admitted that Angela had asked her to come live with her in Georgia, in compliance with the chancellor's custody order in Mosley I, but she refused to go. Roshonda testified that she never planned to go with her mother, because she did not want to leave Meridian ("a stable place") to go a place where "I have no whereabouts" and did not want to live with Angela because of Angela's "living conditions."

¶ 11. When asked about any money she had received from Angela or that Phillip received, Roshonda said she received only "about three or four hundred dollars" soon after the divorce, but had not received anything lately.

¶ 12. Roshonda also confirmed Phillip's allegation that Angela had apparently used Roshonda's social security number, without permission, to obtain credit. ¶ 13. Phillip's testimony as to why he wanted full custody of P.J. was scant and general. He said that Angela was unstable, as evidenced by her having moved three times in the year between the divorce and the modification hearing; that she did not have verifiable income because she is self-employed; and that he did not know how she was taking care of P.J. financially (other than the support he was sending). After testifying that he was not making a judgment about Angela's morality from living with a man outside of wedlock, he stated: "she's a young lady. She's going to have relationships." He went on, however, to make unsubstantiated and unexplained allegations that her boyfriend is "a drug dealer." He offered no specific information. When asked on cross examination if this was his only objection to her boyfriend, he stated "Yes." There was no other testimony or evidence offered other than Phillip's bare allegations.

¶ 14. Phillip reiterated his complaints about the failure to provide current addresses; the difficulties in reaching her by telephone; and her failure to reimburse him for child support payments he made on behalf of Roshonda while she was actually residing with him. When asked by his counsel if he would request child support from Angela for P.J., if he was granted full custody, he replied "I don't have to have child support" and "I don't need to have financial help from her." However, soon thereafter, still on direct examination, while explaining his arrearages in child support payments, he testified that his "utilities are way behind, my bills were way behind, and, you know, the well is running dry."

¶ 15. After hearing testimony on each of Phillip's requested modifications, and arguments from both sides, the chancellor rendered a bench opinion and judgment in which she concluded that Phillip had failed, in part, to meet his burden of proving the material and substantial change in circumstances required for modification. She specifically found, inter alia:

1) that the burden was on Phillip to show material and substantial change in circumstances necessary to require modification of the previous judgment.

2) that custody of Roshonda was awarded to Phillip, but she left custody of P.J. with Angela because Phillip had not proven a material and substantial change in circumstances surrounding P.J.'s custody;

3) that Phillip's child support obligation should be reduced from $600 a month to $400 a month;

4) that Phillip's request that periodic alimony be modified or terminated should be denied, finding that

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