Page v. Graves

• Decision Date: 10 September 2019
• Docket Number: NO. 2018-CA-00140-COA,2018-CA-00140-COA
• Citation: 283 So.3d 269
• Parties: Sherry Ann Campbell Graves PAGE, Appellant v. Bryan Edward GRAVES, Appellee
• Court: Mississippi Court of Appeals

283 So.3d 269

Sherry Ann Campbell Graves PAGE, Appellant

v.Bryan Edward GRAVES, Appellee

NO. 2018-CA-00140-COA

Court of Appeals of Mississippi.

September 10, 2019

ATTORNEYS FOR APPELLANT: JOHN SAMUEL GRANT IV, Flowood, CONNIE MARIE SMITH

ATTORNEYS FOR APPELLEE: CHRISTOPHER TABB, Brandon, BRYAN EDWARD GRAVES (PRO SE)

BEFORE CARLTON, P.J., GREENLEE AND McCARTY, JJ.

CARLTON, P.J., FOR THE COURT:

¶1. Sherry Ann Campbell Graves Page appeals from an order of the Rankin County Chancery Court dismissing her motion for modification of child custody. Sherry filed a motion to reconsider, which the chancellor denied.

¶2. Sherry now appeals, arguing that the chancellor erred by: (1) dismissing the case, despite the fact that Sherry presented sufficient evidence on every required element for custody modification, and (2) failing to consider the totality of the circumstances.

¶3. We find that the chancellor erred in dismissing Sherry's motion for modification of child custody, and we reverse and remand this case for further proceedings consistent with this opinion.

FACTS

¶4. Sherry and Bryan Graves married on July 10, 2004. During the marriage, Sherry gave birth to two daughters: Anna in 2007 and Sarah in 2010.¹ Anna and Sarah were both diagnosed with autism

and have special needs.

¶5. On October 18, 2013, Sherry and Bryan constructively separated. On May 14, 2014, Sherry and Bryan entered a joint motion consenting to a trial and a divorce on the grounds of irreconcilable differences. Sherry and Bryan agreed to allow the court to decide the following issues: child support, child custody, alimony, guardian ad litem (GAL) fees, property division, and payment of debts. On May 16, 2014, the chancellor appointed a GAL "to investigate, find facts, and make an independent report to the [chancellor]."

¶6. A judgment of divorce was entered on July 24, 2014. In the judgment, the chancellor ordered that the "Marital Dissolution Agreement" be incorporated into the judgment of divorce. The Marital Dissolution Agreement set forth the following child custody arrangement:

[Bryan] shall have legal and physical custody of the minor children subject to [Sherry's] reasonable visitation. [Sherry] shall receive one week each month to be mutually agreed upon by the parties. [Sherry's] visitation shall take place in the city in which the children are resided which is anticipated to be Monroe, Louisiana. [Sherry's] visitation shall be supervised by [Bryan] or a member of [Bryan's] family or someone approved by [Bryan]. In the event [Sherry] is unable to visit with the children in the home of [Bryan] or [Bryan's] parents, then [Sherry] shall return the children to their home at 8:00 p.m. each evening. [Sherry] shall be responsible for scheduling and arranging all visitation periods with the minor children.

After the entry of the judgment of divorce, Sherry moved to Virginia and eventually married David Page. As anticipated by the Marital Dissolution Agreement, Bryan moved Anna and Sarah to Monroe, Louisiana. The record reflects that Bryan's stepmother and sister both worked as special education teachers and had agreed to help him care for Anna and Sarah.

¶7. Less than one year later, on May 12, 2015, Sherry and Bryan entered into an agreed order of visitation which granted Sherry unsupervised visitation with Anna and Sarah. The chancellor also lifted the requirement that the visitation occur in Monroe. The order stated that "Bryan shall continue to have physical and legal custody of the minor children," and the order provided Sherry with approximately three months for summer visitation, stating: "Sherry [s]hall have the children for the summer beginning the 10th day after school recesses and ending [seven] days prior to school resuming." The chancellor also ordered that "[d]uring summer visitation, Sherry shall enroll the children in therapy in Virginia comparable to what they are receiving in Monroe, and shall provide the therapists' names and addresses to Bryan so that he can give that information to the Monroe therapists."

¶8. In May through August of 2015, the girls lived with Sherry and her husband, David, in Virginia, per the modified visitation order. In August 2015, Bryan and Sherry agreed that Anna and Sarah would remain in Virginia with Sherry indefinitely. This arrangement ultimately lasted from May 2015 until September 2017—just under two-and-a-half years. During this time, Anna and Sarah attended school in Virginia and continued to receive therapy.

¶9. While Anna and Sarah were living in Virginia, Bryan moved from Monroe to Clinton, Mississippi. He lived with a friend for approximately a year, and then he moved into the home of his girlfriend, Stacy, who also lived in Clinton.

¶10. At the end of August 2017, Anna and Sarah started back to school. The record reflects that after attending their first week of school, Bryan and Stacy took Anna and Sarah on vacation to Florida. During this trip, which occurred in September 2017, Anna and Sarah met Stacy for the first time. At the end of the trip, Bryan refused to let the girls return to Virginia; instead, he moved Anna and Sarah in to live with him and Stacy. Bryan also enrolled Anna and Sarah in school in Clinton.

¶11. Approximately one month later, Bryan and Stacy broke up. Bryan and the girls moved out of Stacy's house and into an apartment. The record reflects that Bryan's new apartment was located in a different school district than Stacy's house, so Bryan enrolled Anna and Sarah in another school.

¶12. On October 3, 2017, Sherry filed a motion for modification of child custody. In the motion, Sherry alleged that since the May 2015 agreed order of visitation, "there has been a material change in circumstances which adversely affects the minor children." Sherry stated that Anna and Sarah had lived with Sherry and David in Virginia from May 13, 2015, until September 2017.

¶13. A trial was held on the matter on November 1, 2017. During Sherry's case-in-chief, the chancellor heard testimony from Anna and Sarah's special education teacher in Clinton; their teacher/therapist in Virginia; a teacher's assistant in Virginia; Bryan (adversely); and Sherry. We discuss this testimony in detail below.

¶14. After presenting their case-in-chief, Sherry's attorney rested. Bryan then moved to dismiss the case. After hearing arguments from the parties, the chancellor granted Bryan's motion and found as follows: "I do not find that there has been a substantial and material change in circumstances adverse to the welfare of these children in their present situation," explaining "[t]he circumstances that were existing at the time of the divorce with regard to these children are very similar to what's existing today[.]"

¶15. On November 15, 2017, the chancellor entered an order memorializing his ruling granting Bryan's motion to dismiss and dismissing Sherry's motion for modification with prejudice. The chancellor held that Sherry "has failed to prove that there has been a material change in circumstances that adversely affects the minor children herein."

¶16. Sherry filed a motion to reconsider and argued that, among other things, the chancellor should not have dismissed the case when the evidence showed Bryan had voluntarily allowed the children to be in Sherry's care for more than two years before he took them back. Sherry also asserted that the chancellor failed to consider the totality of the circumstances. After hearing arguments, the chancellor denied Sherry's motion to reconsider.

¶17. Sherry now appeals.

STANDARD OF REVIEW

¶18. On appeal of a chancellor's denial of motion for modification of child custody based on a material change in circumstances, "[t]his Court employs a limited standard of review in child-custody cases and will affirm findings of fact by chancellors when they are supported by substantial evidence unless the chancellor abused her discretion, was manifestly wrong, clearly erroneous or an erroneous legal standard was applied." Carter v. Carter , 204 So. 3d 747, 756 (¶37) (Miss. 2016) (internal quotation mark omitted). We recognize that "findings of fact made by a chancellor may not be set aside or disturbed upon appeal if they are supported by substantial, credible evidence." Id. We review questions of law de novo. Campbell v. Watts , 192 So. 3d 317, 318 (¶5) (Miss. Ct. App. 2015).

¶19. In their appellate briefs, both Sherry and Bryan argue that the standard of review for the chancellor's denial of Sherry's motion for modification of child custody based on a material change in circumstances is de novo. They assert that where the chancellor failed to consider the totality of the circumstances in a modification action, this Court has held that "the chancellor applied an incorrect, or rather, an incomplete legal standard." Powell v. Powell , 976 So. 2d 358, 362 (¶15) (Miss. Ct. App. 2008).

DISCUSSION

¶20. Sherry argues that the chancellor erred in dismissing her motion for modification of child custody. Sherry maintains that she presented sufficient evidence on every element of her claim showing that a material change in circumstances had occurred in the custodial home, and that the change adversely affected Anna and Sarah. Sherry also argues that the chancellor failed to consider the totality of the circumstances when determining whether a material change in circumstances occurred.

¶21. Mississippi Rule of Civil Procedure 41(b), which governs involuntary dismissals, "applies in actions tried by the court without a jury, where the judge is also the fact-finder." All Types Truck Sales Inc. v. Carter & Mullings Inc. , 178 So. 3d 755, 758 (¶13) (Miss. Ct. App. 2012) (internal quotation marks omitted). "A judge should grant a motion for involuntary dismissal if, after viewing the evidence fairly , rather than in the light most favorable to the plaintiff, the judge would find for the defendant." Id. (quoting Gulfport-Biloxi Reg'l Airport Auth. v. Montclair Travel Agency Inc. , 937 So. 2d 1000, 1004-05 (¶13) (Miss....