Scott v. Boudreau

• Docket Number: 2022-CA-00961-COA
• Decision Date: 28 November 2023
• Parties: STEPHANIE SCOTT APPELLANT v. NICHOLAS BOUDREAU APPELLEE
• Court: Mississippi Court of Appeals

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STEPHANIE SCOTT APPELLANT
v.
NICHOLAS BOUDREAU APPELLEE

No. 2022-CA-00961-COA

Court of Appeals of Mississippi

November 28, 2023

DATE OF JUDGMENT: 08/22/2022

HARRISON COUNTY CHANCERY COURT, SECOND JUDICIAL DISTRIC TTRIAL JUDGE: HON. JENNIFER T. SCHLOEGEL

ATTORNEY FOR APPELLANT: DAVID ALAN PUMFORD

ATTORNEY FOR APPELLEE: NICHOLAS BOUDREAU (PRO SE)

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

McCARTY, J.

¶1. After Nicholas and Stephanie divorced in Maryland, she enrolled the foreign judgment in Mississippi. Nicholas later filed for a modification after choosing to relocate to Colorado. The chancellor modified the custody schedule, granting Nicholas custody of the children.

¶2. Stephanie appeals, arguing that the chancery court erroneously granted Nicholas physical custody of the children, improperly analyzed the Albright factors, incorrectly awarded Nicholas child support, did not hold him to the same standard as a represented litigant, and interpreted the children's therapy notes incorrectly.

¶3. Finding these decisions were within its discretion and supported by substantial evidence, we affirm the chancery court's judgment.

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BACKGROUND

¶4. Stephanie Scott and Nicholas Boudreau wed in Maryland in 2013 and had two children, Brittany in 2013, and Bobby in 2015.^[1] Both parents were active-duty service members in the United States Air Force.

¶5. In 2017, Stephanie was stationed in South Korea for one year. During her tour, the children lived with Nicholas in Maryland. That same year, Nicholas also secured a position at Keesler Air Force Base in Biloxi for a four-year commitment through March 2022. He was later given the choice of completing a three-year commitment with the fourth year being optional.

¶6. In March 2019, the couple divorced in a Circuit Court in the State of Maryland. Each was awarded joint legal and joint physical custody. Soon after, in May 2019, both parents moved to Mississippi. Stephanie first had the Maryland divorce judgment enrolled in Mississippi, then requested modification of the joint physical custody arrangement. She asked the chancery court to award her primary physical custody of the children subject to Nicholas's visitation.

¶7. Finding "on its face, this complaint fails to establish a material change adverse to the child or one that would render their current shared custody schedule unworkable so as to trigger modification," the chancery court denied Stephanie's petition. However, it did modify the custodial schedule "to a 5-2-2-5 schedule, giving Nicholas custody Monday through Wednesday of every week and every other weekend, and Stephanie custody

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Wednesday through Friday and every other weekend."

¶8. Stephanie remarried in 2020 and Nicholas remarried in 2021. In 2022, Nicholas filed a petition for modification of custody. He had been accepted into the United States Space Force and expected to relocate to Colorado. While she sought to dismiss Nicholas's claim, Stephanie agreed custody should be modified based on the material change of his relocation.

¶9. During the trial, the chancellor heard testimony about how present the two sets of parents were in the lives of the children. Nicholas and his wife attended all practices, games, and events of the children's sports and other extracurricular activities, except dance. Whereas Stephanie was the primary parent who took Brittany to dance class. But in general Stephanie did not attend sports practices during Nicholas's custodial time, nor had she attended all of the games. Notably, Nicholas's wife testified she had attended "so many practices and games that they ran together so she wasn't sure if Stephanie was missing games or practices or both." In contrast, Stephanie's husband did not regularly attend with Stephanie.

¶10. Bobby also attends therapy for "adjustment disorder with depressed mood." Nicholas's wife attends therapy sessions and practices coping skills learned in therapy with him. Both parents would go with him-and while his stepmother was always there, his stepfather rarely was.

¶11. After the trial, the chancellor found it was "not in the best interests of the children to modify joint physical custody or joint legal custody[.]" Nonetheless, the trial court considered "it . . . necessary to modify the custody schedule due to the relocation" of

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Nicholas. The court further found it was "in the best interests of the children to reside with Nicholas . . . for the majority of the time and for Stephanie . . . to exercise her custody of the children primarily during the summers and holidays as the schedule of the children allows." Nicholas was also granted "tie-breaking authority" if "the parties cannot agree on major life decisions of the children." Further, the chancellor stated that if Stephanie ever moved closer to the children, "she may petition the [c]ourt for a modification of the custody schedule again to grant her more parenting time."

¶12. Stephanie now appeals.

STANDARD OF REVIEW

¶13. "The standard of review in child custody cases is limited. Reversal occurs only if a chancellor is manifestly wrong or applied an erroneous legal standard." Butler v. Mozingo, 287 So.3d 980, 983 (¶10) (Miss. Ct. App. 2019). "So long as there is substantial evidence in the record that, if found credible by the chancellor, would provide support for the chancellor's decision, this Court may not intercede simply to substitute our collective opinion for that of the chancellor." Id.

DISCUSSION

I. The chancery court did not err by ordering the relocation of the children.

¶14. Stephanie argues the trial court should not have ordered the children's relocation to their father's home in Colorado. Specifically, she alleges "the chancery court abused its discretion in failing to consider uprooting the children," and further "fail[ed] to consider the impact of such a move" in her life.

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¶15. "Generally, the mere moving of the custodial parent does not constitute a material change in circumstances for child custody modification purposes." Id. at (¶12) (internal quotation marks omitted). "But it is the effect the move has on the child and the custody arrangement that is dispositive." Id. "This Court has found even a short move can result in a material change in circumstances where the move causes the custody agreement to become impractical." Munday v. McLendon, 287 So.3d 303, 310 (¶29) (Miss. Ct. App. 2019).

¶16. "[A] custody schedule has the characteristics of a visitation schedule," and "[t]o modify a visitation schedule, 'it must be shown that the prior decree for reasonable visitation is not working and that a modification is in the best interest of the child.'" Gaddis v. Wilkerson, 235 So.3d 1446, 1449 (¶9) (Miss. Ct. App. 2018) (quoting Ellis v. Ellis, 840 So.2d 806, 812 (¶25) (Miss. Ct. App. 2003)). "[A]s in all matters relating to a minor child, the primary consideration [with a visitation schedule] is the best interest of the child[,] . . . start[ing] from the presumption that where possible, that best interest is served by maintaining a viable relationship with both parents." Strange v. Strange, 43 So.3d 1169, 1173 (¶14) (Miss. Ct. App. 2010).

¶17. It is first important to emphasize a fact found by the trial court, which provided a lens through which the relocation was viewed: "These parents are both good parents and do not seem to have a discernible problem with parenting skills." Both parents are also longtime members of the military and have served and continue to serve our country-and the realities of their military service mean their families have been repeatedly uprooted by tours of duty and assignments to different bases. As the trial court put it, "Both of them are accustomed

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to a lifestyle of relocating."

¶18. This background was also supported by the proof at trial. The trial court explained how Nicholas's current wife "testified that Nick applied to the newly created Space Force along with almost everyone else they knew." One of the reasons was that he believed he "will not be moving from Colorado as long as he is an active member of the Space Force, which will be, according to his testimony, a minimum of eight . . . years, if not longer." Further, "Nick plans to stay active duty at least 20 years, if not more, before retirement . . . [and] will not be deployed or transferred to a new base as a member of the Space Force, so he would not be required to move." Accordingly, the trial court granted Nicholas physical custody with the expectation that the otherwise unpredictable circumstances of military life would be more settled after this relocation to Colorado.

¶19. Stephanie protests this finding on appeal, arguing the move to Colorado would be disruptive for the children and was not in their best interests. But this misses the mark, as the trial court was fashioning a remedy that would hopefully ensure more long-term stability for the children given Nicholas's more settled expectations he would not be relocating again as a part of his military service. Stephanie points out that she was finished with her military service and it was "absolutely her settled purpose to remain in Mississippi," but the trial court acknowledged she had moved twice after leaving the service and worked at two different schools.

¶20. In the end,...