Powell v. Powell

• Decision Date: 04 March 2008
• Docket Number: No. 2006-CA-01892-COA.,2006-CA-01892-COA.
• Citation: 976 So.2d 358
• Parties: Richard H. POWELL, Appellant v. Amy Sue POWELL, Appellee.
• Court: Mississippi Court of Appeals

976 So.2d 358

Richard H. POWELL, Appellant v. Amy Sue POWELL, Appellee.

No. 2006-CA-01892-COA.

Court of Appeals of Mississippi.

March 4, 2008.

Marcie Tanner Southerland, Vicksburg, Jennifer Powell Fortner, attorneys for appellant.

James L. Farrior, attorney for appellee.

Before KING, C.J., ROBERTS and CARLTON, JJ.

CARLTON, J., for the Court.

¶ 1. Richard H. Powell appeals from an order of the Chancery Court of Harrison County, which denied his motion for modification of child custody and petition for contempt and granted Amy Sue Powell's motion for an upward modification of child support. Aggrieved, Richard now appeals and raises the following issues:

1. Whether the chancellor erred in finding that there had been no material change in circumstances adverse to the minor children since the original decree.

2. Whether the chancellor erred in failing to apply the Albright factors.

3. Whether the chancellor erred in considering testimony regarding pre-divorce conduct.

4. Whether the chancellor erred in failing to hold Amy in contempt.

5. Whether the chancellor erred in granting an upward modification of child support.

¶ 2. We affirm the denial of Richard's petition for contempt. However, we find that the chancellor failed to consider the totality of the circumstances in denying Richard's petition for modification of custody. Therefore, we reverse the chancellor's judgment and remand this case for a new trial with directions for the chancellor to reconsider the issues of modification of child custody and child support.

FACTS

¶ 3. Richard and Amy were divorced by final decree of the Chancery Court of Harrison County on September 20, 2000. The decree approved and incorporated by reference a separation and property settlement agreement wherein the parties agreed to joint legal custody of the minor children, namely, C.S.P., Rebeccah Morgan Powell, Sarah Lauren Powell, and Andrew Theron Powell, with Amy having physical custody of the children subject to Richard's reasonable visitation rights. Additionally, Richard agreed to pay child support in the amount of $500 per month.

¶ 4. After the divorce, Amy began a relationship with Larry Kennedy. In August 2001, Amy moved herself and the children from Gulfport, Mississippi to Saucier, Mississippi to live with Kennedy. While in Saucier, C.S.P., age twelve at the time, was raped in the woods behind Kennedy's house. Amy did not notify Richard of this event until he returned home from working offshore.¹ While she resided in Saucier, Amy was employed at the Long Beach Yacht Club in Long Beach, Mississippi.

¶ 5. In August 2004, Amy quit her job and relocated herself and the children to Lexington, Mississippi. They moved into a house, and Amy put a down payment on the house. Shortly after taking up residence in Lexington, Amy and her mother, Mary, got into an argument which escalated to the point that Mary pulled a gun on Kennedy. Amy was unemployed while in Lexington. Consequently, she was eventually unable to make payments on her home. Amy's uncle took over payments in November 2004 to enable the children to complete the school year.

¶ 6. In July 2005, Amy attempted to move to Denham Springs, Louisiana. She planned on residing with a friend; however, before Amy left for Denham Springs her living arrangement fell through for reasons not relevant to this appeal. With no place to live, Amy and the children moved in with her grandmother in Springfield, Missouri. While in Springfield, Amy obtained employment with Hampton Inn as a desk clerk. In early August 2005, Amy moved herself and the children into an apartment.

¶ 7. On January 17, 2006, Richard filed a petition for modification of child custody and a petition for contempt. His petition for modification alleged that Amy was unable to provide a stable environment in which to raise their children due to her frequent relocation and sporadic employment. Richard's petition for contempt claimed that Amy failed to exchange information and failed to confer with Richard before making decisions concerning the health, education, and welfare of their children.

¶ 8. On June 11, 2006, Amy decided to relocate herself and the children again. They moved to Houma, Louisiana. Hampton Inn allowed Amy to transfer her employment to a location near Houma. Notwithstanding her employment, Amy was unable to secure a home for herself and the children. Amy and the children moved into a friend's fish camp. On June 27, 2006, Amy filed an answer and a counter-complaint seeking an upward modification of child support. Amy and the children were still living at the fish camp at the time of trial.

¶ 9. Trial took place on July 10, 11, and 12, 2006. At the time, Amy did not know where her children would attend school, which was scheduled to start within the next few weeks. She claimed that she planned on moving out of the fishing camp, but she did not know where or when. At the conclusion of trial, the chancellor denied Richard's motion for modification of custody, finding that there had been no material change in circumstances adverse to the children. Richard's petition for contempt was also denied upon a finding that insufficient evidence was presented to show that Amy's conduct was willful. The chancellor then granted Amy's motion for modification of child support, finding that both the children's needs and Richard's income had increased since the original decree. Richard's support obligations were increased to an amount equal to twenty-four percent of his adjusted gross income.

STANDARD OF REVIEW

¶ 10. A chancellor's findings will not be disturbed on appeal "when supported by substantial evidence unless the chancellor abused his discretion, was manifestly wrong, clearly erroneous or an erroneous legal standard was applied." Sanderson v. Sanderson, 824 So.2d 623, 625-26(¶ 8) (Miss.2002) (citation omitted).

DISCUSSION

1. Whether the chancellor erred in finding that there had been no material change in circumstances adverse to the minor children since the original decree.

2. Whether the chancellor erred in failing to apply the Albright factors.

¶ 11. A modification of custody requires the noncustodial parent to prove: (1) that a material change of circumstances has occurred in the custodial home since the most recent custody decree, (2) that the change adversely affects the child, and (3) that modification is in the best interest of the child. Giannaris v. Giannaris, 960 So.2d 462, 467-68(¶ 10) (Miss.2007). Modification must be based on conduct of the custodial parent that poses a danger to the mental or emotional health of the child. Id. at 467(¶ 9) (quoting Morrow v. Morrow, 591 So.2d 829, 833 (Miss.1991)). In determining whether a material change in circumstances has occurred, the chancellor must consider the totality of the circumstances. Creel v. Cornacchione, 831 So.2d 1179, 1183(¶ 15) (Miss.Ct.App.2002) (citing Ash v. Ash, 622 So.2d 1264, 1266 (Miss. 1993)). See also Hill v. Hill, 942 So.2d 207, 210(¶ 8) (Miss.Ct.App.2006) (citation omitted) ("The change in circumstances is one in the overall living conditions in which the child is found.").

¶ 12. In denying Richard's motion for modification of custody, the chancellor stated, "There is really only one main allegation that I find that comes close to stating a substantial and material change in circumstances, and that is the question of the amount of moves Ms. Powell has had." The chancellor ultimately concluded that Amy's frequent relocation did not constitute a material change in circumstances adverse to the children.

¶ 13. We first address Richard's claim that the chancellor erred by failing to apply the Albright factors to determine whether a change of custody was in the best interests of his children.² "In a custody modification proceeding, the question of which parent will better serve the welfare of the children as custodial parent is not reached unless the chancellor has previously found a material change in circumstance detrimental to the child's best interest." McCracking v. McCracking, 776 So.2d 691, 694(¶ 10) (Miss.Ct.App.2000) (citing McGehee v. Upchurch, 733 So.2d 364, 369(¶ 21) (Miss.Ct.App.1999)). Because the chancellor found no material change in circumstances, the occasion to consider the Albright factors did not arise. Therefore, this issue is without merit.

¶ 14. Richard next argues that the chancellor erred in determining that no material change of circumstances had occurred since the original decree. Richard asserts that the chancellor's decision ignored evidence that supports a finding that the children's overall living conditions had materially changed to their detriment. We agree.

¶ 15. We find that the chancellor failed to consider the totality of the circumstances to determine whether the children's overall living conditions had changed to their detriment. Consequently, we find that the chancellor applied an incorrect, or rather, an incomplete legal standard. Our review of the record reveals that Richard presented a number of factors, in addition to Amy's frequent relocation, which support his claim that a material change of circumstances had occurred.

¶ 16. Amy correctly asserts that relocation of the custodial parent does not alone constitute a material change in circumstances. Cooley v. Cooley, 574 So.2d 694, 699 (Miss.1991) (overruled on other grounds). However, a material change in circumstances may be established where a custodial parent's relocation is one of several supporting factors. See Jernigan v. Jernigan, 830 So.2d 651, 653-54(¶¶ 2-6) (Miss.Ct.App.2002); Fletcher v. Shaw, 800 So.2d 1212, 1215-17 (¶¶ 10-14) (Miss.Ct. App.2001); Deborah H. Bell, Mississippi Family Law, § 5.11[5][b] (1st ed.2005).

¶ 17. In the instant case the chancellor failed to consider the totality of the circumstances to determine whether a material change of circumstances had occurred. The chancellor's findings did not mention C.S.P.'s rape or Amy's reluctance to...