Sturgis v. Sturgis, No. 1999-CA-00321-COA.

• Court: Court of Appeals of Mississippi
• Writing for the Court: Before KING, P.J., LEE, and CHANDLER, JJ.
• Citation: 792 So.2d 1020
• Parties: Camille Corrine Cabrera STURGIS, Appellant v. John Earl STURGIS, Appellee.
• Docket Number: No. 1999-CA-00321-COA.
• Decision Date: 28 August 2001

792 So.2d 1020

Camille Corrine Cabrera STURGIS, Appellant
v.
John Earl STURGIS, Appellee

No. 1999-CA-00321-COA.

Court of Appeals of Mississippi.

August 28, 2001.

792 So.2d 1022

Sharon Patterson Thibodeaux, Jackson, Attorney for Appellant

R. Conner McAllister, Attorney for Appellee.

Before KING, P.J., LEE, and CHANDLER, JJ.

KING, P.J., for the Court:

¶ 1. Camille Sturgis has appealed the denial by the Rankin County Chancery Court of her request for modification of child support, and its grant of her former husband's, John Sturgis, motion for a change of custody.

¶ 2. Finding error, we reverse and remand.

FACTS

¶ 3. The Sturgises were married in 1991. While Mrs. Sturgis had two daughters from two prior marriages, she and John Sturgis had one child, John Ryan Sturgis, born July 5, 1992.

¶ 4. The parties were granted an irreconcilable differences divorce in 1994. As a part of this process, the Sturgises executed a written property distribution and custody agreement.

¶ 5. Pursuant to that agreement (1) the parties would have joint custody of the minor child, with Mrs. Sturgis having primary physical custody, (2) Mrs. Sturgis waived the payment of child support, (3) Mr. Sturgis was to pay the cost of day care, provide health insurance for the child, pay all medical, dental and drug expenses not covered by insurance, and provide clothing for the child at a cost not to exceed $75 per month.

¶ 6. In July 1997, Mrs. Sturgis sought to have Mr. Sturgis held in contempt for failure to pay her $75 per month for the child's clothing. Mr. Sturgis responded to this motion by requesting a change in child custody. When her motion for contempt was denied, Mrs. Sturgis requested an increase in child support.

¶ 7. By judgment dated December 30, 1998, the chancellor denied Mrs. Sturgis' requested increase in child support, but changed the physical custody of the child to Mr. Sturgis.

DISCUSSION

¶ 8. Mrs. Sturgis has presented several issues for this Court's consideration. However, we address only the change of custody and failure to grant a modification of child support.

I

MODIFICATION OF CHILD SUPPORT

¶ 9. Child support is subject to modification upon the demonstration of a material change in circumstances. Yancey v. Yancey, 752 So.2d 1006 (¶ 9) (Miss.1999). Those changes may be of the mother, the father or the child. However, such changes must be relevant to either the needs of the child and/or the ability to provide support. Turner v. Turner, 744 So.2d 332 (¶ 17) (Miss.Ct.App.1999).

¶ 10. In the present case, Mrs. Sturgis offered no proof that the minor

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child had needs which were not being met under the present support arrangement

¶ 11. This Court finds no error in the denial of modification of child support.

II

MODIFICATION OF CUSTODY

¶ 12. The matter of child custody is a matter within the sound discretion of the chancellor. Delozier v. Delozier, 724 So.2d 984 (¶ 4) (Miss.Ct.App.1998). Where the chancellor has applied the correct legal standard, and makes finding of facts, which are supported by substantial evidence, this Court will not reverse his decision. Touchstone v. Touchstone, 682 So.2d 374, 377 (Miss.1996). However, if the chancellor has applied an inappropriate legal standard, he has abused his discretion as a matter of law, and this Court will not hesitate to reverse him. Cavett v. Cavett, 744 So.2d 372 (¶ 13) (Miss.Ct.App. 1999).

¶ 13. A change in child custody should not be granted upon mere whim or caprice, but only when there has been a material change in circumstances, which suggests that a change of custody is in the best interest of the child. Weigand v. Houghton, 730 So.2d 581 (¶ 15) (Miss. 1999). Before undertaking a possible change of custody, the court must first identify the specific material changes in circumstances, which make such a consideration appropriate.

¶ 14. In holding that such a material change of circumstances had occurred in this case, the chancellor stated:

That the Court, using the Caldwell v. Caldwell Factors finds as to change of custody the following:

a. John Ryan Sturgis is six (6) years of age at this time and is in need of a firm stabilizing influence in his life.

b. John Ryan's step-sister who resides with him and his mother presents a serious state of affairs for the minor which are contrary to the best interest of the minor child in the following manner:

1. The step-sister drinks alcohol beverages.

2. The step-sister is in juvenile court for her conduct.

c. The mother, Camille Corrine Cabrera Sturgis, uses abusive and profane language in the presence of the minor child.

d. The mother, Camille Corrine Cabrera Sturgis, engages in sexually explicit conduct by drinking with her daughter's friends and making statements to a young boy as follows: "If I have a few more drinks you might get lucky."

e. The mother, Camille Corrine Cabrera Sturgis, allows minors to have a party at her residence where there was alcohol present.

f. the mother, Camille Corrine Cabrera Sturgis, provides little, if any, moral training for the minor child.

That the Defendant has shown that a material change in circumstances has occurred and that it would be in the best interests of the minor child for his care, custody and control to be placed with the father, John Earl Sturgis, immediately.

¶ 15. The chancellor began his consideration of child custody by referencing what he considered to be the appropriate factors, as found in Caldwell v. Caldwell, by which to determine whether a material change in circumstance had occurred. While not given a specific citation in the reporter, this Court assumed the reference to be to Caldwell v. Caldwell, 579 So.2d 543 (Miss.1991). Those Caldwell factors,

792 So.2d 1024

found on page 547, referred to modification of child support rather than custody, and are as follows

A child support award can be altered if it can be shown that there has been "a substantial or material change in the circumstances of one or more of the interested parties: the father, the mother, and the child or children, arising subsequent to the entry of the decree to be modified." Tedford v. Dempsey, 437 So.2d 410, 417 (Miss.1983). Some of the factors which may be considered in determining whether a material change has taken place include:

(1) increased needs caused by advanced age and maturity of the children (2) increase in expenses, and (3) inflation factor. Other factors include (4) the relative financial condition and earning capacity of the parties, (5) the health and special needs of the child, both physical and psychological, (6) the health and special medical needs of the parents, both physical and psychological, (7) the necessary living expenses of the father, (8) the estimated amount of income taxes the respective parties must pay on their incomes, (9) the free use of a residence, furnishings, and automobile and (10) such other facts and circumstances that bear on the support subject shown by the evidence. this Court has recognized, however, that a standard of living cannot be imposed upon a father beyond his financial ability to provide. Nor can a court relieve a mother of her obligation to support because she is not now required to work because if a new husband's financial means.

¶ 16. If these were in fact the factors applied by the chancellor in determining whether a material change in circumstance had occurred to an extent that modification of custody was warranted, it would be inappropriate, and therefore an abuse of discretion as a matter of law. Touchstone v. Touchstone, 682 So.2d 374, 377 (Miss. 1996). The appropriate standard for determination of child custody, and factors to be considered were set forth in Albright v. Albright, 437 So.2d 1003, 1005 (Miss.1983) as follows:

We reaffirm the rule that the polestar consideration in child custody cases is the best interest and welfare of the child. The age of the child is subordinated to that rule and is but one factor to be considered. Age should carry no greater weight than other factors to be considered, such as: health, and sex of the child; a determination of the parent that has had the continuity of care prior to the separation; which has the best parenting skills and which has the willingness and capacity to provide primary child care; the employment of the parent and responsibilities of that employment; physical and mental health and age of the parents; emotional ties of parent and child; moral fitness of parents; the home, school and community record of the child; the preference of the child at the age sufficient to express a preference by law, stability of home environment and employment of each parent, and other factors relevant to the parent-child relationship.

¶ 17. The question which this Court must first resolve is whether the chancellor applied the appropriate legal standard. The resolution of this issue does not turn solely on the case style referred to by the chancellor in referencing the appropriate standard. It also requires that this Court view carefully the chancellor's findings to determine whether he has applied the proper standard, even if misstating the case style.

¶ 18. When this is done, it appears that the chancellor's intent was to apply the

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Albright standard and factors. His specific findings reference (1) the age of the child, (2) the relative parenting skills of the parties, (3) the moral fitness of the parents, (4) stability of the home environment, and (5) other relevant factors to the parent-child relationship. These are among the factors enumerated in Albright. While it appears that the chancellor intended to apply the Albright factors, this Court must resolve the question of whether those factors have been properly applied.

¶ 19. When considering a modification of child custody, the proper approach is to first identify the specific change in circumstances, and then analyze and apply the Albright factors in light of that change....