Smith v. Bellville

• Citation: 301 So.3d 678
• Decision Date: 24 March 2020
• Docket Number: NO. 2018-CA-01305-COA,2018-CA-01305-COA
• Parties: Tiffany Bellville SMITH Appellant v. Nathan Trent BELLVILLE Appellee
• Court: Court of Appeals of Mississippi

301 So.3d 678

Tiffany Bellville SMITH Appellant

v.Nathan Trent BELLVILLE Appellee

NO. 2018-CA-01305-COA

Court of Appeals of Mississippi.

March 24, 2020

Rehearing Denied June 30, 2020

ATTORNEYS FOR APPELLANT: TERRY L. CAVES, RISHER G. CAVES, Laurel

ATTORNEY FOR APPELLEE: S. CHRISTOPHER FARRIS

BEFORE J. WILSON, P.J., GREENLEE AND LAWRENCE, JJ.

GREENLEE, J., FOR THE COURT:

¶1. This appeal concerns a modification of child custody. Tiffany Smith appeals from the judgment of the Lamar County Chancery Court, claiming (1) the chancellor applied an erroneous legal standard in awarding sole physical custody to Nathan Bellville, and (2) the chancellor abused her discretion by finding that it was in the child's best interest to award sole physical custody to Nathan. Finding no reversible error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2. On April 13, 2015, the Lamar County Chancery Court awarded Nathan a divorce from Tiffany on the grounds of uncondoned adultery. Both parties agreed to joint legal and physical custody of their child, B.B.¹ At the time, Nathan and Tiffany both lived in Lamar County and agreed to week-to-week physical custody with exceptions for holidays.

¶3. After the divorce, Tiffany married Danny Smith in June 2015 and gave birth to triplets in April 2017. In April 2018, Danny informed Nathan that his job required him to relocate from Hattiesburg to Tupelo, which was approximately 250 miles away. Subsequently, on April 23, 2018, Nathan filed a petition for modification of custody. Nathan asserted that the move would make the joint physical-custody arrangement "impractical and difficult to maintain." And he requested that the court modify custody to provide him with sole physical custody of B.B.

¶4. In May 2018, Tiffany filed an answer and a counterclaim. In the counterclaim, Tiffany admitted that joint physical custody would not be feasible once she moved to Tupelo. However, she asserted that Nathan's "parenting skills and bizarre behaviors" constituted a material change in circumstances that adversely affected B.B. Tiffany alleged, among other things, that Nathan allowed B.B. to play Call of Duty; use a hammer; carry a machete and firearms; and ride in the car without safety restraints. She also alleged that Nathan had chased B.B. while riding a four-wheeler. Tiffany requested that the court modify custody to provide her with primary physical custody of B.B.

¶5. On August 7, 2018, the chancellor entered an Opinion and Final Judgment, which was amended on August 8, 2018. The chancellor found that the Smiths’ move to Tupelo was a material change in circumstances that would render the joint physical custody arrangement impractical or impossible. The chancellor then conducted an Albright² analysis and found that it would be in B.B.’s best interest to award Nathan sole physical custody and Tiffany liberal visitation.

¶6. Subsequently, Tiffany filed a "Rule 59 Motion for a New Trial or to Alter or Amend the Final Judgment or[,] in the alternative[,] [a] Rule 52 Motion to Amend Findings and Judgment."³ After Nathan filed a response to the motion and argument was heard, the chancellor entered an order denying Tiffany's post-trial motion as it pertained to physical custody.

¶7. On appeal, Tiffany claims that (1) the chancellor applied an erroneous legal standard in awarding sole physical custody to Nathan, and (2) the chancellor abused her discretion by finding that it was in B.B.’s best interest to award sole physical custody to Nathan.

STANDARD OF REVIEW

¶8. This Court will affirm a chancellor's findings of fact "if they are supported by substantial, credible evidence." Heisinger v. Riley , 243 So. 3d 248, 256 (¶30) (Miss. Ct. App. 2018) (quoting Strait v. Lorenz , 155 So. 3d 197, 203 (¶19) (Miss. Ct. App. 2015) ). "Matters involving child custody are within the sound discretion of the chancellor." Id . This Court "will not reverse the chancellor's custody decision unless the chancellor abused [her] discretion, was manifestly wrong, or clearly erroneous, or applied an erroneous legal standard." Id . at 256-57 (¶30) (internal quotation marks omitted).

DISCUSSION

¶9. As a preliminary matter, we note that Tiffany filed her opening brief on April 16, 2019. On July 19, 2019, Nathan filed his appellee's brief. On September 4, 2019, Tiffany filed her reply brief, as well as a motion to strike Nathan's brief. The motion was passed for consideration with the merits of the appeal by order of this Court.

¶10. In Tiffany's motion to strike, she argues that this Court should strike Nathan's brief for failure to cite the record and, with regard to section II of Nathan's brief, failure to cite authority. M.R.A.P. 28(a)(7), (f). She also argues that the brief contains misstatements of fact, mischaracterizations of the evidence, conclusions of counsel, and unsupported facts. In her reply brief, she argues that because Nathan failed to comply with Rule 28(a)(7), this Court should, by default, reverse and render the chancellor's custody determination.

¶11. In response to the motion to strike, Nathan argues that his brief responds to Tiffany's arguments and relies on the chancellor's analysis, which is part of the appellant's record excerpts. Nathan further asserts that Tiffany's motion is frivolous and that he should be awarded $500 in attorney's fees.

¶12. The motion to strike and the request for sanctions are denied. While Rule 28(a)(7) requires citations to authority and parts of the record relied on, there is no provision in our rules for striking a brief for failure to do so. Rather, the failure to provide proper citations may render an argument procedurally barred. Reel v. Warren , 232 So. 3d 736, 738 n.2 (Miss. Ct. App. 2017). Regardless, any statements that lack support in the record will be disregarded by this Court, as this Court "will consider only those matters that actually appear in the record and does not rely on mere assertions in briefs." Touchstone v. Touchstone , 682 So. 2d 374, 380 (Miss. 1996). We further decline to reverse and render the chancellor's decision based on the alleged deficiencies in Nathan's brief. We now address the merits of Tiffany's appeal.

I. Whether the chancellor applied an erroneous legal standard in awarding sole physical custody to Nathan.

¶13. "To modify child custody, ‘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 interest mandates a change of custody.’ " Heisinger , 243 So. 3d at 256 (¶29) (quoting Strait , 155 So. 3d at 203 (¶20) ). "The chancellor must consider the ‘totality of the circumstances.’ " Id . And "[i]f an adverse substantial or material change is found, the chancellor must then perform an Albright analysis to determine whether modification of custody is in the child's best interest." Id .

¶14. Tiffany does not dispute that there was a material change in circumstances, but she claims that the chancellor applied an erroneous legal standard in awarding sole physical custody to Nathan. Specifically, Tiffany argues that the chancellor did not make the custody determination based on the child's best interest but instead on who "lived up to" the initial custody agreement. Tiffany cites to Bell v. Bell , 572 So. 2d 841 (Miss. 1990), for the proposition that a custody agreement that requires a parent to live in a certain location is unenforceable. And she argues that the chancellor imputed such a term into the initial custody agreement and punished her for moving by awarding sole physical custody to Nathan.

¶15. A review of the record shows that during the trial the chancellor was reluctant to modify custody. She explained that she had encountered too many parties who agreed to joint custody "just to get what they need[ed,] when they want[ed] it." The chancellor asked why Nathan and Tiffany initially agreed to joint physical custody, and Tiffany's attorney responded that there were "a lot of reasons." However, Nathan's attorney stated that when the divorce on the grounds of uncondoned adultery was pending, Nathan was "pursuing full custody" of B.B. The chancellor then stated, "I know that when I have a divorce on grounds and the parties come in and they agree and they do it - - and I don't know why they do it because they feel they might lose or whatever. Then they come back within five years wanting to change it, I have difficulties with that." The chancellor further stated, "[T]his [c]ourt does not like it when people ... enter into an agreement to keep one party from getting paramount physical custody ... without anticipating what your ages are[,] ... what your jobs are, [and] your abilities to move. And then you come back to me and say, oh, well, I moved and I want to change things."

¶16. From the bench, the chancellor discussed enforcing the initial custody agreement until B.B. was in the first grade and repeatedly stated that Nathan and Tiffany would have to "figure out how to make [joint custody] work."⁴ However, when the chancellor entered her written "Opinion and Final Judgment," the chancellor found that the move was a material change in circumstances and, after conducting an Albright analysis, found that it would be in B.B.’s best interest to award sole physical custody to Nathan.

¶17. At the hearing on Tiffany's post-trial motion, the chancellor expressed her belief that joint physical custody "is impossible in today's society." Additionally, she stated that joint physical custody was not in a child's best interest because children become "victims" who "live with the backpack[s] on their back[s]." But the chancellor noted that Nathan and Tiffany initially agreed to joint physical custody and that she would have to determine how to make them "live up to" that agreement. But later, the chancellor stated several times that it was her responsibility to determine the best interest of the child, and she...