Welton v. Westmoreland

• Decision Date: 17 November 2015
• Docket Number: No. 2014–CA–00302–COA.,2014–CA–00302–COA.
• Citation: 180 So.3d 738
• Parties: Sabrina Lynn WELTON, Appellant v. Daniel WESTMORELAND, Appellee.
• Court: Mississippi Court of Appeals

180 So.3d 738

Sabrina Lynn WELTON, Appellant

v.Daniel WESTMORELAND, Appellee.

No. 2014–CA–00302–COA.

Court of Appeals of Mississippi.

Nov. 17, 2015.

A.E. (Rusty) Harlow Jr., Kathi Crestman Wilson, attorneys for appellant.

T. Swayze Alford, Kayla Fowler Ware, attorneys for appellee.

EN BANC.

WILSON, J., for the Court:

¶ 1. Daniel Westmoreland filed a complaint seeking modification of the physical custody of his daughter, Alexice Westmoreland, from his former wife, Sabrina Welton, to him. He later filed an amended complaint in which he also sought custody of Justice Westmoreland. Daniel is not Justice's biological father, but until she was twelve years old, she believed that he was. Justice's biological father abandoned her and has never made an attempt to see her since her birth. Although Daniel knew that he was not Justice's biological father, he and Sabrina raised her together from the time she was four months old, and in 2004 Sabrina petitioned a court to change Justice's surname to Westmoreland. Justice learned that Daniel was not her biological father only when, in the lead-up to the instant litigation, Sabrina made a unilateral—and, the chancellor found, "very hurtful"—decision to tell her. After a hearing, the chancellor modified custody and awarded Daniel physical custody of both children.

¶ 2. We agree with the chancellor that he had jurisdiction over Justice under the Uniform Child Custody Jurisdiction and Enforcement Act. We also agree that under Griffith v. Pell, 881 So.2d 184 (Miss.2004), he had authority to grant physical custody of her to Daniel. Finally, we find no abuse of discretion in the chancellor's findings that there had been a material change in circumstances that adversely affected the children and that modification was in their best interests. Accordingly, we affirm the chancellor's ruling in all respects.

FACTS AND PROCEDURAL HISTORY

¶ 3. Justice was born on July 10, 2000. Although Daniel was not her biological father, she was raised as his daughter from infancy. Daniel and Sabrina were not married at the time, but they lived together and led Justice to believe that Daniel was her father. In 2004, Sabrina petitioned a Missouri court to change Justice's surname to Westmoreland because, according to Sabrina's sworn petition, Justice's biological father had abandoned her and had made no attempt to see her since birth. Daniel and Sabrina were married in 2005, and on February 6, 2006, a daughter, Alexice, was born to them. The family later moved to Mississippi.

¶ 4. In August 2011, the Lafayette County Chancery Court entered a decree of divorce terminating the marriage between Sabrina and Daniel. The decree incorporated the parties' property settlement, child custody, and support agreement. The decree granted the parties joint legal custody of Alexice and assigned physical custody of Alexice to Sabrina. Daniel was granted liberal visitation with Alexice, consisting of every weekend, six weeks in the summer, and holidays. In addition, the agreement "acknowledge[d] that Justice ... is not the biological or adopted child of [Daniel], but that Justice ... has developed a strong bond with [Daniel] and it is in [Justice's] best interest that [she] ... have visitation with [Daniel] whenever he is exercising visitation with ... Alexice."

¶ 5. After the parties' divorce, Justice continued to believe that Daniel was her biological father. Daniel exercised visitation with both girls every weekend, and at Sabrina's request the girls also regularly spent weeknights at his house. Sabrina's employment was erratic. She was fired from a job in June 2012, and in July 2012 eviction proceedings were initiated against her for nonpayment of rent. As a result, in August 2012, Justice and Alexice went to live with Daniel on a full-time basis. Sabrina moved into a cabin in Water Valley that had limited bathroom facilities and was not suitable for children. From August to December 2012, the girls lived with Daniel, attended school in Lafayette County, and by all accounts were happy and doing well. A school teacher and a school counselor testified that Daniel brought the girls to school and attended their parent-teacher conferences, Justice's basketball games, and other school functions. These two witnesses rarely ever saw Sabrina.

¶ 6. While Justice and Alexice were living with Daniel, Sabrina met a man on the internet (Darren) who at that time lived in the Cayman Islands. Sabrina and Darren met in person for the first time in October 2012 and spent several nights together at hotels in Oxford and Memphis. In mid-December 2012, Daniel took Justice and Alexice to Missouri to spend the Christmas holiday with their grandmother (Sabrina's mother). While her daughters spent Christmas in Missouri with her family, Sabrina went to the Cayman Islands with Darren.

¶ 7. In December 2012, Sabrina not only vacationed in the Caymans but also quit her job in Water Valley. She did so even though she had no other employment prospects. Then, in January 2013 she abruptly moved to Missouri, taking the girls with her. She did not have a job lined up in Missouri either. Sabrina not only failed to tell Daniel that she was moving but also told him a bald-faced lie about where she was taking the girls. The day she left, she asked him to pack extra clothes for the girls because she wanted them to help her move back to Oxford, it was raining, and she was afraid they would get muddy. Daniel first learned that she was actually moving to Missouri, and taking the girls with her, when Justice called him from the road. Sabrina immediately took the phone from Justice, hung up, and refused to answer Daniel's calls. Daniel drove to Missouri that same day, but Sabrina refused to allow him unsupervised visitation. After moving to Missouri, Sabrina also made a unilateral—and, the chancellor found, "very hurtful"—decision to tell then-twelve-year-old Justice that Daniel was not her biological father.

¶ 8. In February 2013, Daniel filed a complaint for contempt and modification of custody. Sabrina filed a counterclaim for contempt, alleging that Daniel had not paid support or other expenses. In April 2013, the chancery court entered a temporary order that visitation should continue as outlined in the divorce decree, with instructions on when and where to transfer the children.

¶ 9. In June 2013, only five months after she moved to Missouri, Sabrina decided to move again. This time she moved to South Florida to live with Darren, again taking the girls with her. They moved into a house that Darren owns, and Sabrina took a job as the manager of a Smoothie King. The children are cared for primarily by a full-time nanny. The nanny arrives early each weekday morning to wake the children, fix breakfast, take them to and pick them up from school, and help them with their homework. Justice and Alexice testified that Sabrina and Darren fight constantly.

¶ 10. In November 2013, Darren and Sabrina argued about Darren's demand that Sabrina sign a prenuptial agreement. As a result of this argument, Darren made Sabrina and her daughters move out of his house. They lived with a friend for about ten days until Darren allowed them to return. In her January 2014 testimony, Sabrina said that she and Darren had patched things up and had "the prenup ready to sign"—although it was not signed, and no wedding date was set. The chancellor appropriately expressed concerns about the "tenuous" and "unreliable" nature of Sabrina's living arrangements. Both Justice and Alexice testified that they miss their father and want to move back to Oxford to live with him.

¶ 11. In August 2013, Daniel amended his complaint to request physical custody of Justice as well as Alexice. Sabrina responded with a motion to dismiss, arguing that the court lacked jurisdiction over Justice. In December 2013, Daniel filed an amended complaint adding Justice's biological father as a defendant. The biological father was incarcerated in Missouri. He was served with process but never answered or appeared before the chancery court.

¶ 12. After a hearing, the chancellor entered a thorough opinion setting forth findings of fact and conclusions of law. He found that the court had jurisdiction over both children under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA); that on the "unique" facts of this case, Daniel "stands in the same place as a natural parent seeking custody" of Justice; that a material change in circumstances had occurred that adversely affected the children; and that it would be in the best interest of both children for Daniel to have physical custody and share joint legal custody with Sabrina. From this ruling, Sabrina appeals, arguing (1) that the chancery court lacked jurisdiction over Justice; (2) that the chancellor erred by not following the "natural parent presumption"; (3) and that the chancellor erred in finding a material change in circumstances and that modification was in the children's best interests. We find no error and therefore affirm.

STANDARD OF REVIEW

¶ 13. "A chancellor's findings will not be disturbed on appeal ‘when supported by substantial evidence unless the chancellor abused his discretion, was manifestly wrong, clearly erroneous or an erroneous legal standard was applied.’ " Powell v. Powell, 976 So.2d 358, 361 (¶ 10) (Miss.Ct.App.2008) (quoting Sanderson v. Sanderson, 824 So.2d 623, 625–26 (¶ 8) (Miss.2002) ).

¶ 14. A chancery court's jurisdiction over a particular matter is a question of law subject to a de novo review. Yeager v. Kittrell, 35 So.3d 1221, 1223 (¶ 12) (Miss.Ct.App.2009) (citing In re Guardianship of Z.J., 804 So.2d 1009, 1011 (¶ 9) (Miss.2002) ). "However, the factual findings underpinning the jurisdiction question are reviewed under the familiar substantial evidence and abuse of discretion standard." Clifton v. Shannon, 93 So.3d 70, 72 (¶ 7) (Miss.Ct.App.2012).

ANALYSIS

I. The chancery court had jurisdiction over Justice.

¶ 15. Sabrina claims that the...