Pearson v. Pearson

• Decision Date: 09 June 2009
• Docket Number: No. 2007-CA-01991-COA.,2007-CA-01991-COA.
• Citation: 11 So.3d 178
• Parties: Joy Lynn PEARSON, Appellant v. Steven Allen PEARSON, Appellee.
• Court: Mississippi Court of Appeals

11 So.3d 178

Joy Lynn PEARSON, Appellant v. Steven Allen PEARSON, Appellee.

No. 2007-CA-01991-COA.

Court of Appeals of Mississippi.

June 9, 2009.

Eduardo Alberto Flechas, Jackson, attorney for appellant.

Wayne Smith, Liberty, attorney for appellee.

Before MYERS, P.J., GRIFFIS and ISHEE, JJ.

MYERS, P.J., for the Court.

¶ 1. Joy Pearson appeals the Pike County Chancery Court's modification of child custody. The trial court modified the minor child's custody from joint legal and physical custody to joint legal custody with sole physical custody awarded Joy's ex-husband, Steven Pearson. Joy appeals arguing that: (1) the trial court erred in finding a material change in circumstances, and (2) the trial court erred in its Albright analysis. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. Steven and Joy Pearson were married on June 6, 1998. Both parties worked as pharmacists at the Southwest Mississippi Regional Medical Center in Pike County. During their marriage, the couple had one daughter, McKenna Claire. She was born on December 2, 2002. The couple remained together in Pike County, Mississippi until on or about January 6, 2006, at which time they separated. The two filed for divorce based on irreconcilable differences, which was finalized by the Pike County Chancery Court on August 9, 2006. As part of the divorce, Steven and Joy executed a child custody and property settlement agreement. The child custody agreement provided that the couple would have joint legal and physical custody. Both parties remained in Pike County during this time.

¶ 3. On or about August 24, 2006, Joy notified Steven that she was considering moving away from Pike County. Prior to the divorce, Joy had contacted a job recruiter about finding new employment. Joy was subsequently hired at St. Dominic's Hospital in Jackson, Mississippi and moved to Brandon, Mississippi on or about October 23, 2006.

¶ 4. After Joy moved to Brandon, the couple continued to adhere to the joint custody arrangement, even though the parents were approximately eighty miles apart. This resulted in McKenna Claire spending three nights with one parent, and the remaining four nights with the other parent. The parties alternated this schedule weekly, so the parents would theoretically have equal time with McKenna Claire. The couple continued the three/four schedule until December 2006. At that time, the couple changed the schedule to a week-to-week arrangement, with each parent getting McKenna Claire for a full week at a time.

¶ 5. Upon Joy notifying Steven about her intentions to move away from Pike County, Steven filed for a modification of the child custody agreement on October 9, 2006. He claimed that Joy's move constituted a material change in circumstances necessitating a modification in custody. Joy responded to Steven's petition for modification with her own counterclaim for modification. The Pike County Chancery Court conducted a full hearing on the petitions. At the conclusion of the hearing, the chancellor found that Joy's move away from Pike County was a material change in circumstances. The chancellor then conducted an on-the-record analysis of the Albright factors. She concluded the hearing by retaining the joint legal custody but granting Steven sole physical custody of McKenna Claire. Aggrieved, Joy appeals the chancellor's ruling.

STANDARD OF REVIEW

¶ 6. "[I]n custody cases, we are bound by the limits of our standard of review and may reverse only when the decision of the trial court was manifestly wrong or clearly erroneous, or an erroneous legal standard was employed." Hensarling v. Hensarling, 824 So.2d 583, 587(¶ 8) (Miss.2002).

DISCUSSION

I. WHETHER THE CHANCELLOR ERRED IN FINDING A MATERIAL CHANGE IN CIRCUMSTANCES.

¶ 7. "[I]n modification cases, as in original awards of custody, we never depart from our polestar consideration: the best interest and welfare of the child." Johnson v. Gray, 859 So.2d 1006, 1013(¶ 33) (Miss.2003) (citations and internal quotations omitted). However, modification issues are different from original custody determinations:

[We have] emphasized that the request for modification does not simply mean a re-weighing of the Albright factors to see who now is better suited to have custody of the child ... there must be shown ... a material change[,] not just a change in circumstances, that has had an adverse affect [sic] on the child and which requires, or mandates, a change in custody for the best interests of the child.

Beasley v. Beasley, 913 So.2d 358, 361(¶ 8) (Miss.Ct.App.2005) (citation and internal quotation omitted). In order to succeed on a complaint for modification, "the non-custodial party must prove: (1) that a substantial change in circumstances has transpired since issuance of the custody decree; (2) that this change adversely affects the child's welfare; and (3) that the child's best interests mandate a change of custody." Mabus v. Mabus, 847 So.2d 815, 818(¶ 8) (Miss.2003).

¶ 8. Joy contends the chancellor erred when she found that the move to Brandon was a material change in circumstances.¹ She distinguishes the current factual scenario from other circumstances where the appellate courts have found that a move was a material change in circumstances. See Lackey v. Fuller, 755 So.2d 1083 (Miss.2000) (mother moving from Mississippi to New York); Sobieske v. Preslar, 755 So.2d 410 (Miss.2000) (mother moving from Mississippi to Georgia); and McRee v. McRee, 723 So.2d 1217 (Miss.Ct. App.1998) (mother was getting remarried and moving from Mississippi to Texas). Joy argues her move from Pike County to Brandon, approximately eighty miles, is less severe than these cases where one parent moved out of state.

¶ 9. In addition to one parent moving out of state, this Court has found that a short move can also result in a material change in circumstances. See Rinehart v. Barnes, 819 So.2d 564 (Miss.Ct.App.2002) (father moved from DeSoto County, Mississippi to Cordova, Tennessee); Massey v. Huggins, 799 So.2d 902 (Miss.Ct.App.2001) (couple resided in Laurel, Mississippi during the marriage; mother moved to south Forrest County, Mississippi then to Petal, Mississippi; father moved to Natchez, Mississippi, then to Long Beach, Mississippi).

¶ 10. The distance of the move is not dispositive as to whether a material change in circumstances has occurred; it is the effect the move has on the child and the custody arrangement that is dispositive. In each of the above cases, the chancellor or appellate court found that the move by one parent caused the custody arrangement to become impractical or impossible to maintain. In many instances, the parents shared joint legal and physical custody of the child prior to one of the parents moving. After one parent relocated, the custody arrangement became too difficult on the child and the parents to uphold.

¶ 11. In the instant case, Joy's move from Pike County to Brandon caused the custody arrangement to become impractical and difficult to maintain. Regardless of the schedule created by Joy and Steven, it was going to be taxing on both of them to adhere to it. They would be continuously driving back and forth between Pike County and Brandon to meet the requirements of the custody schedule. More importantly, the constant changing of hands would be difficult on McKenna Claire. She would constantly be switching between Brandon and Pike County. McKenna Claire would not feel like one place is home as she would only be there for a week at a time. She would never be solidified in one community. For example, both parents testified that McKenna Claire was taking dance lessons in McComb. If the parents would have continued the week-to-week schedule, this would result in McKenna Claire being in dance for one week and not returning for two weeks. This would apply to any extracurricular activities McKenna Claire participated in, whether in Brandon or Pike County.

¶ 12. Even more supportive of the chancellor's finding of a material change in circumstances is McKenna Claire's age. At the time of the modification hearings, McKenna Claire was four and a half years old. There was much testimony about where McKenna Claire would go to school, in Jackson or in McComb. Naturally, each parent wanted McKenna Claire to go to school in their respective locations. However, it would be impossible for McKenna Claire to maintain the week-to-week schedule once she started school. She would not be able to go to school in Jackson one week and in McComb the next. The supreme court has recognized this problem by affirming a chancellor's ruling that "the advent of school age was a material change in circumstances that rendered the split custody of the child useless and even harmful to the child." Torrence v. Moore, 455 So.2d 778, 780 (Miss.1984). Accordingly, McKenna Claire beginning school, by itself, can be deemed to be a material change in circumstances.

¶ 13. We find that the combination of the lack of stability caused by McKenna Claire being shuffled back and forth between Brandon and Pike County each week and McKenna Claire's beginning school is supportive of the chancellor's finding that a material change in circumstances had occurred. Accordingly, this issue is meritless.

II. WHETHER THE CHANCELLOR ERRED IN APPLYING THE ALBRIGHT FACTORS.

¶ 14. Upon a finding of a material change in circumstances, a court is to apply the Albright factors to determine which parent should have primary custody. McRee, 723 So.2d at 1220(¶ 11). The Albright factors used to determine what is in the best interest of the child in regard to custody are: (1) age, health, and sex of the child; (2) a determination of the parent that had the continuity of care prior to the separation; (3) which parent has the best parenting skills and which parent has the willingness and capacity to provide primary child care; (4) the employment of the parent and responsibilities of that employment; (5) the physical and...