Thompson v. Thompson, 2000-CA-00087-COA.

Citation799 So.2d 919
Decision Date06 November 2001
Docket NumberNo. 2000-CA-00087-COA.,2000-CA-00087-COA.
PartiesHilda Darlene THOMPSON, Appellant v. Cordis Melvin THOMPSON, Jr., Appellee.
CourtCourt of Appeals of Mississippi

Linda Pilcher Robinson, Attorney for Appellant.

W. Terrell Stubbs, Mendenhall, Attorney for Appellee.

Before SOUTHWICK, P.J., THOMAS, and IRVING, JJ.

SOUTHWICK, P.J., for the Court:

¶ 1. A little less than two years after a final judgment of divorce awarded custody of two daughters to their mother, the father filed for a modification. An order temporarily changing custody was entered, but four years passed before a final hearing was held. At the final hearing, the chancellor held that the mother had to prove a material change in circumstances since the date of the temporary order. She failed to do so, and the father received custody.

¶ 2. As to the older daughter, who indicated a preference to live with the father, no error is alleged. As to the younger daughter, we find that it was essentially admitted that a material change in circumstances had arisen at the time of the temporary change. Despite some procedural questions about who carried the burden of proof at the later final hearing, we hold that placing permanent custody with the father was not an abuse of discretion. We affirm.

STATEMENT OF FACTS

¶ 3. Hilda Darlene Thompson and Cordis Melvin Thompson were divorced in February 1993. Mrs. Thompson was awarded custody of the parties' two minor children, Brandi and Jennifer.

¶ 4. Mr. Thompson filed a petition for modification in November 1994. The older daughter, Brandi, indicated a preference to live with her father. That change in custody is not contested on appeal. As to the younger daughter, Jennifer, the court sought to be aided in its determination by appointing an expert to assess the entire Thompson family. The court's expert stated that Mrs. Thompson suffered from severe depression in addition to post-traumatic stress syndrome. He recommended that custody of both daughters be changed to the father.

¶ 5. Mrs. Thompson filed for a continuance to allow her additional time to obtain her own expert. A continuance was granted in May 1995, but a temporary order was also entered that gave custody of Jennifer to Mr. Thompson.

¶ 6. For reasons that are not apparent from the record, a period of three years passed without any recorded action. In July 1998, Mrs. Thompson petitioned the court to set the matter for trial. After a continuance that allowed Mr. Thompson to depose his former wife's expert, a hearing was held over two days in August 1999. Substantial evidence was received from the mother's expert regarding her present mental condition. The expert also asserted that at the time of the 1995 temporary change in custody, Mrs. Thompson had not been emotionally capable of having custody of her child. The expert asserted, however, that she was now sufficiently recovered from her severe depression and post-traumatic stress syndrome to regain custody.

¶ 7. The court found that there had been no material change in circumstances since the entry of the 1995 temporary order. On the record the chancellor reviewed factors that the Supreme Court has enumerated for assessing custody issues. An order was entered allowing Mr. Thompson to retain custody of Jennifer.

DISCUSSION

I. Requirements for Modification of Custody

¶ 8. To modify a previous child custody order, there are three prerequisites; (1) the initial burden is on the party seeking the change to demonstrate that there has been a material change in the circumstances affecting the child; (2) the change that has occurred must be detrimental to the children's welfare; and (3) the chancellor must find that the change in custody is in the best interest of the children. Bredemeier v. Jackson, 689 So.2d 770, 775 (Miss.1997). In deciding whether there has been a material change, the totality of the circumstances should be considered. Id. If under this totality a material change has occurred, the court must make a separate assessment on whether this change is one that adversely affects the children. Id.

¶ 9. A chancellor's decisions in these matters will not be disturbed on appeal unless the finding is manifestly wrong or is not supported by substantial credible evidence. Polk v. Polk, 589 So.2d 123, 129 (Miss.1991).

¶ 10. This Court has recently been sharply divided in a modification appeal. The Court in opinions written by three different judges unanimously agreed that precedents such as these continued to set out the applicable test. Sturgis v. Sturgis, 792 So.2d 1020 (¶¶ 13, 26, & 35) (Miss.Ct. App.2001). The point of division was in explaining the role of the dominant Mississippi precedent on determining at least initial custody, and that is Albright v. Albright, 437 So.2d 1003, 1005 (Miss.1983). In Sturgis, the chancellor found a material change in circumstances adverse to the interests of the child but then did not mention all the Albright factors before deciding to alter custody. Sturgis, 792 So.2d 1020 at (¶ 18). A majority of the Court found that to be reversible error. Id. at (¶¶ 21 & 27-28).

¶ 11. In the case before us now, the chancellor after the final hearing never found a change in circumstances but went directly to the Albright factors to determine that the father should receive custody. What was procedurally unusual was that the chancellor considered the 1995 temporary custody order to have the effect of a permanent order. The party who then challenged that permanent-temporary order had to show a material change in circumstances. Mrs. Thompson, who was seeking the reinstatement of the original custody, put on substantial medical testimony that she had been medically unable to have custody in 1995. The purpose of that evidence was to set the foundation for her doctor's testimony that she had by 1999 adequately recovered and was unlikely to relapse into depression.

¶ 12. Once the chancellor here found no material change in circumstances since the date of the temporary decree, he nonetheless re-evaluated the Albright elements. When a petition seeking a modification alleges that a change in circumstances has occurred, it is quite likely if not inevitable that the change will be in one or more of the Albright factors. A hearing for modification of custody is not an invitation just to reconsider the initial balancing of the relevant circumstances. For example, if the chancellor's initial custody decision was a relatively close one with each parent having similar strengths under the Albright analysis, a decision later to grant a change in custody is not supposed to be based just on a new weighing of those same factors that might now show a slight preference for the other parent. The Supreme Court has said that "only parental behavior that poses a clear danger to the child's mental or emotional health can justify a custody change." Morrow v. Morrow, 591 So.2d 829, 833 (Miss.1991).

¶ 13. Even with a finding of a material change in circumstances, there is another step:

Even though the chancellor finds a material adverse change in circumstances, a change in custody is not automatic. That finding is merely the first step, the one which then authorizes and indeed challenges the chancellor to then go forward and determine whether the best interests of the child justify a change of custody.

Tucker v. Tucker, 453 So.2d 1294, 1297 (Miss.1984). Whether all the Albright factors must be reweighed on the record in a modification decision was considered in Sturgis, but there was no majority of the court on that issue. Sturgis, 792 So.2d 1020 at (¶ 21). In the present case, the chancellor described each factor on the record and thus the necessity that he do so is moot.

¶ 14. We find this to be the applicable law. We now apply it to the chancellor's actions.

II. Validity of This Custody Modification

¶ 15. To determine whether the chancellor applied the proper legal standards and had adequate evidence to support the decision to change custody, we examine the custody proceedings in chronological order.

A) The initial custody agreement was incorporated into the divorce decree of February 25, 1993. Mrs. Thompson was given sole custody of the parties' two minor children.
B) Custody of both children remained with the mother until the father requested modification on November 28, 1994. The older daughter, Brandi, exercised her statutory right as a minor over the age of twelve to indicate her preference. Her election was to live with her father. The chancellor made the change and neither party contests Brandi's custody.
C) A hearing on Mr. Thompson's motion to modify the custody of the younger daughter Jennifer was held on February 27, 1995. The court appointed an expert to assess the entire family. The expert recommended that custody of the younger daughter also be given to the father. A continuance was granted so that the mother could obtain her own expert to contest the opinion of the court's expert. However, the court entered a temporary order giving custody to the father. That May 18, 1995 order is critical on this appeal. These are its only relevant parts:
Defendant/Petitioner [Mr. Thompson] is hereby granted temporary custody of the parties' minor child, Jennifer Dawn Thompson, effective May 15, 1995, at 9:00 a.m., with the Defendant/Petitioner to pick up said child after normal school hours on said date or if said chid [child] fails to attend school, he shall be allowed to pick up said child at Plaintiff/Respondent's home on said date.
Pending the final hearing in this cause, or until further order of this Court, Defendant/Petitioner shall not be required to pay any child support.

¶ 16. Two critical matters are obvious. First, the change in custody was temporary. Secondly, the order was not based on an explicit finding of material change in circumstances.

¶ 17. The basis and effect of a temporary custody order is explained by one treatise-writer:

The power of the Chancellor to
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