Smith v. Smith

• Decision Date: 19 January 2021
• Docket Number: NO. 2019-CA-01230-COA,2019-CA-01230-COA
• Citation: 318 So.3d 484
• Court: Mississippi Court of Appeals
• Parties: Bradley W. SMITH, Appellant v. Laurie H. SMITH, Appellee

318 So.3d 484

Bradley W. SMITH, Appellant

v.Laurie H. SMITH, Appellee

NO. 2019-CA-01230-COA

Court of Appeals of Mississippi.

January 19, 2021

Rehearing Denied May 4, 2021

ATTORNEY FOR APPELLANT: W. THOMAS McCRANEY III, Ridgeland

ATTORNEY FOR APPELLEE: RICHARD C. ROBERTS III, Jackson

BEFORE BARNES, C.J., GREENLEE AND WESTBROOKS, JJ.

BARNES, C.J., FOR THE COURT:

¶1. After a fourteen-year marriage, the Hinds County Chancery Court granted Bradley (Brad) and Laurie Smith a divorce on the ground of irreconcilable differences on February 21, 2014. The couple had two minor children born of the marriage: a son, "George," and a daughter, "Irene."¹ The final judgment of divorce incorporated the parties’ Marital Dissolution Agreement (MDA). Under the MDA's terms, Laurie had sole physical custody of both children, and the parties shared joint legal custody. Due to the close proximity of the parties’ residences in Jackson, Mississippi, Brad enjoyed liberal visitation with the children.

¶2. In 2016, Laurie and Irene moved to Memphis, Tennessee, for Irene to receive specialized education and instruction for her learning and developmental deficits. The following school year, George was enrolled at a boarding school in Chattanooga, Tennessee. As a result, the parties filed competing petitions for modification of custody and child support, as well as citations of contempt. In 2018, Laurie wanted to transfer Irene to a school located in Nashville; Brad opposed the transfer and relocation for various reasons. Brad also requested sole physical custody of George.

¶3. After a trial on the matters, the chancery court entered its opinion and order, awarding Laurie sole physical and legal custody of Irene and awarding Brad sole physical and legal custody of George. The court further ordered Brad to pay one-half of the tuition for Irene's new school and to enroll George at a private school in Jackson. Aggrieved, Brad appeals from the court's judgment. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶4. Brad and Laurie were divorced in 2014. The chancery court's divorce judgment incorporated an MDA entered between the parties, which granted Laurie sole physical custody of the two minor children. However, Brad enjoyed extensive visitation with the children under the MDA's terms.² Brad was also ordered to pay monthly child support of $1,000 per child, as well as one-half of the children's private-school tuition and expenses, health insurance, and out-of-pocket medical costs. Brad additionally agreed to pay any and all reasonable expenses associated with the children's extracurricular or sports activities until graduation or emancipation. The parties agreed to split the costs associated with the children's college education equally.

¶5. In 2016, Irene was diagnosed with dyslexia

; she also has "Expressive/Receptive Language Disorder" and auditory deficits. Brad and Laurie agreed that it would be in Irene's best interest to relocate her to the Bodine School (Bodine) in Germantown, Tennessee, which specializes in dyslexia elementary education and instruction. Laurie and Irene moved to Memphis in December 2016. George remained in Jackson under Brad's care and custody. However, in 2017, the parties enrolled George at McCallie Preparatory School (McCallie) in Chattanooga. Because of the increased educational costs, Laurie's father, Richard Hickson, agreed to pay George's tuition and board in the amount of approximately $50,000 per year. Brad contributed tuition in the amount of one-half of George's former tuition at Jackson Academy and one-half of George's tutoring costs.

¶6. In the meantime, Brad had filed a petition for modification and for a citation of contempt on April 26, 2016, alleging (1) that it would be in the children's best interest for the visitation schedule "to be modified and clarified" and (2) that Laurie was in contempt for hindering Brad's visitation with the minor children "by scheduling activities and trips with the children which conflict with and prevent Brad from exercising his visitation." Laurie filed a counter-petition for modification and a citation for contempt on July 11, 2016. In her petition, she asserted that Brad was in contempt for failing to reimburse Laurie for the children's medical and tutoring expenses and "for his continued harassment and threatening of Laurie." The petition also requested modification of the "summer and holiday visitation provisions" and the provision for the payment of the children's extracurricular activities in the divorce judgment. Laurie argued that Brad was "unreasonably withholding" his consent for the children to participate in extracurricular activities because he was solely responsible for the costs associated with the activities.

¶7. The matter was set for a trial to be held in November 2016, but the parties agreed to remove the trial setting from the docket in an attempt to negotiate a settlement of the issues raised in their petitions. On February 3, 2017, Laurie filed an amended petition for modification of the judgment of divorce and the MDA, requesting that the chancery court set a hearing should the parties be "unable to agree upon a mutually acceptable Agreed Order for the modification of the custody, visitation and support provisions of the MDA." Brad filed a counter-petition for modification, asking the court to change the custody provisions "such that Brad has physical custody of [George] and Laurie has physical custody of [Irene]" and to modify the "financial obligations and visitation schedule."

¶8. On March 7, 2018, Brad filed an amended petition for the modification of the judgment and the MDA and for contempt, again requesting sole physical custody of George. The petition also noted that Laurie had agreed to suspend child-support payments for George, as he had been living with Brad and his wife in Jackson, along with their two children born of that marriage. Noting that he was now financially supporting four children, Brad argued that "[t]he totality of these material changes in circumstance, coupled with the relative financial positions of the two parties, constitutes a reasonable and justifiable basis to reduce, if not cancel, Brad's total support obligation for [Irene]."

¶9. In response to an emergency motion filed by Laurie, the chancery court held a hearing and entered a temporary order on April 12, 2018, which allowed Laurie to enroll Irene in the Currey Ingram Academy (Currey Ingram) in Nashville, a K-12 preparatory school specializing in students with learning differences.³ Subsequently, after another hearing on June 7, 2018, the chancery court ordered that George remain enrolled at McCallie for the 2018-2019 school year in accordance with George's wishes.

¶10. Laurie filed a second amended petition for modification on July 6, 2018, requesting sole legal custody of both children and modification of Brad's visitation schedule in light of her and Irene's relocation to Nashville, as well as a review of Brad's child-support obligations. The petition also alleged that Brad was in contempt of the divorce judgment for refusing to pay child support for George since January 2017. A week later, Brad filed a motion seeking to enjoin Laurie from relocating Irene to Nashville or, in the alternative, that he be awarded temporary emergency custody of Irene pending the scheduled August 28 hearing so that Irene could "continue her education without undue hardship and disruption."

¶11. The chancery court denied Brad's motion and ordered that sole physical custody of Irene remain with Laurie. The court also ordered that the parties enroll Irene at both Bodine and Currey Ingram⁴ and that Irene was to begin attending Currey Ingram beginning in August 2018. Lastly, the order held that "[a]ll costs of attendance shall continue to be paid in the manner previously agreed by the parties." On August 8, 2018, Laurie filed a petition for contempt, asserting that Brad was in contempt of the court's temporary order for refusing to pay one-half of the tuition for Currey Ingram.

¶12. On August 10, 2018, Brad filed a second amended petition for modification and contempt, noting that he had "suffered an involuntary 100 share reduction in his equity position at [his law firm,] which has resulted in a decrease in his income." Brad also requested that the court modify the MDA by (1) transferring physical custody of both children to Brad, (2) ordering Laurie to pay $1,000 in monthly child support for George during the summer months when George resides with Brad and his family, and (3) hold Laurie in contempt for violating certain provisions of the MDA.

¶13. On August 28-29, 2018, the chancery court held a full trial on the issues presented in the parties’ competing petitions. The court entered a temporary order on August 30, 2018, directing that Irene remain under Laurie's sole physical custody and that the parties share Irene's expenses at Currey Ingram.

¶14. On March 26, 2019, the chancery court entered its opinion and order (March Order), addressing the parties’ various petitions for modification and contempt. Although the court found "Laurie's relocation [was] not a material change in circumstances adversely affecting the minor children," the court did determine that a material change in circumstances adversely affecting George had occurred—namely, George's unhappiness at McCallie and his expressed desire to return to Jackson and finish his high-school education at St. Andrew's Episcopal School.⁵ The court also noted that the parties' "increasing deterioration of communication" had made "joint legal custody of the two minor children impossible." Therefore, addressing the factors outlined in Albright v. Albright , 437 So. 2d 1003, 1005 (Miss. 1983), the chancery court concluded that it would be in George's best interest to return to Jackson, granted Brad sole physical and legal custody of George as of the completion of the 2018-2019 school year, and directed Brad to enroll George in St. Andrew's...