Wikel v. Miller

• Decision Date: 03 February 2011
• Docket Number: No. 2009–CA–00106–COA.,2009–CA–00106–COA.
• Parties: Brian E. WIKEL, Appellantv.Bethany J. Wikel MILLER, Appellee.
• Court: Mississippi Court of Appeals

53 So.3d 29

Brian E. WIKEL, Appellant

v.Bethany J. Wikel MILLER, Appellee.

No. 2009–CA–00106–COA.

Court of Appeals of Mississippi.

June 22, 2010.Rehearing Denied Oct. 19, 2010.Certiorari Denied Feb. 3, 2011.

James C. Helveston, Michelle Dean Easterling, West Point, attorneys for appellant.Carrie A. Jourdan, Rebecca Anne Younger, attorneys for appellee.Before KING, C.J., BARNES and MAXWELL, JJ.BARNES, J., for the Court:

¶ 1. Brian E. Wikel appeals the denial of his motion for modification of child custody by the Oktibbeha County Chancery Court. Finding no error, we affirm.

SUMMARY OF FACTS AND PROCEDURAL HISTORY

¶ 2. Brian Wikel and Bethany Wikel Miller were divorced on January 7, 2005. The couple share joint legal custody of their two minor children—Zachary, born on September 1, 1998, and Garrett, born on February 26, 2001. Primary physical custody was awarded to Bethany, subject to Brian's specified visitation rights. The property settlement provided that Brian would have alternating weekend visitation and one night of midweek overnight visitation. At the time of the divorce, both parents were living in Starkville, Mississippi, with Brian living in the former marital home. Bethany subsequently moved to West Point, Mississippi, where she taught high school. Brian worked at a nearby Sara Lee® factory in West Point. However, when the West Point factory closed down, Brian moved to Florence, Alabama, in May 2007, to continue his employment with Sara Lee®. Bethany and her current husband, Will Miller (Will), now live in Nesbit, Mississippi, where she works as a counselor at a nearby correctional facility.

¶ 3. Shortly after the divorce, the children began experiencing emotional and behavioral problems. Zachary was exhibiting angry outbursts and becoming physically aggressive with his younger brother, who was very repressed with his emotions. Concerned about this behavior, Bethany took the boys to a counselor, Melanie Benson. Ms. Benson counseled Zachary and Garrett from March 2005 to July 2007, during which time she met with them on approximately twenty-two occasions. In her initial assessment, Ms. Benson diagnosed Zachary with adjustment disorder, with mixed anxiety and depressed mood. She identified the stressors as being the parent's divorce, difficulty with the visitation schedules, and tension between his parents. Since Zachary's problems were affecting Garrett, Ms. Benson also had Garrett participate in counseling and diagnosed him with adjustment disorder, unspecified.

¶ 4. Although Bethany did not consult Brian upon initiating the counseling, Brian later participated in several counseling sessions. During their therapy, the children mentioned their mother's male friends on a couple of occasions. In the summer of 2006, Brian related his concern regarding Bethany's bringing men to the house as he felt that this behavior confused the children. Ms. Benson advised Bethany to limit the children's contact with any of her romantic partners. Ms. Benson's advice was based upon the fear that the children might form attachments to the male figures, which could lead to abandonment issues if the relationships did not work out. However, Bethany told Brian not to interfere in her personal business, and she did not appear to follow Ms. Benson's suggestions. In two subsequent sessions, Brian and Bethany specifically discussed incidents where her boyfriend, Will, had spent the night in the home while the children were present.

¶ 5. On August 24, 2006, Brian filed a complaint for modification of the final judgment of divorce. Specifically, he requested modification of the primary physical custody of the children from Bethany to Brian, citing a substantial change in circumstances, namely, Bethany's inappropriate and immoral behavior. He further claimed that Bethany's refusal to communicate with him and allow him to participate in his sons' activities was adversely impacting the children. Alternatively, Brian requested that the chancellor modify the existing visitation schedule to provide more extended visitation periods. Bethany, who married Will a few days after Brian filed his complaint, filed an answer and a counter-claim for modification on October 26, 2006. In it, she denied Brian's allegations and sought an increase in child support, the right to claim an income tax deduction on both children, and a modification of the visitation schedule. She also sought sole legal and physical custody of the children. On November 13, 2006, Brian filed an answer denying Bethany's requested relief and a motion to amend his complaint for modification.

¶ 6. A trial was held on September 8, 2008, and October 29, 2008, on the motions. In her testimony, Bethany admitted to the court that, while she was still married to Brian, she had engaged in sexual intercourse with a minor student, eleven years her junior, at the high school where she was employed as a teacher.¹ She further admitted that she had let her boyfriend, Will, who was now her husband, spend the night on a couple of occasions while the children were present in the home. However, in its opinion and judgment entered on December 3, 2008, the chancery court denied Brian's motion for modification, finding that the children were doing well in school; the children's emotional problems were primarily a result of the divorce transition; and Bethany had been remarried for two years. The chancellor also denied Bethany's request for an increase in child support. However, due to the relocation of both Bethany and Brian, the chancellor did modify the existing visitation schedule.

¶ 7. On December 10, 2008, Brian filed a motion for reconsideration of the custody issue or, in the alternative, to revise the specified visitation periods. On December 12, 2008, Bethany filed a motion to reconsider the request for modification of child support. The chancellor, in an order filed on December 22, 2008, overruled Bethany's motion and partially overruled Brian's motion as to the issue of modification of child support. The chancellor granted Brian's motion in regard to an amendment to Brian's visitation schedule. On January 15, 2009, Brian filed a notice of appeal regarding the modification of child custody.²

Whether the chancellor's denial of the modification of child custody was manifestly wrong and/or clearly erroneous.

¶ 8. This Court's standard of review in cases involving child custody is limited. Connelly v. Lammey, 982 So.2d 997, 999 (¶ 2) (Miss.Ct.App.2008). “[I]n order to reverse the chancellor's findings, the chancellor must be manifestly wrong, clearly erroneous, or have applied an erroneous legal standard.” Id. (citing Hensarling v. Hensarling, 824 So.2d 583, 586 (¶ 7) (Miss.2002)). Therefore, a chancellor's findings of fact “may only be disturbed if they are not supported by substantial, credible evidence.” Ellis v. Ellis, 952 So.2d 982, 989 (¶ 15) (Miss.Ct.App.2006) (citing Johnson v. Gray, 859 So.2d 1006, 1012 (¶ 32) (Miss.2003)). However, we review issues of law de novo. Balius v. Gaines, 958 So.2d 213, 218 (¶ 8) (Miss.Ct.App.2005) (citation omitted).

i. Material Change of Circumstances

¶ 9. Brian argues that the children's emotional problems, their exposure to Bethany's boyfriends, and Bethany's reluctance to communicate with Brian warrant a change in primary physical custody. Further, he notes that it was stipulated at trial that Brian is a good father who has a great relationship with his children. In order to obtain a modification of child custody, the non-custodial parent must prove: “(1) that a material change of circumstances has occurred in the custodial home since the most recent custody decree, (2) that the change adversely affects the child, and (3) that modification is in the best interest of the child.” Powell v. Powell, 976 So.2d 358, 361 (¶ 11) (Miss.Ct.App.2008) (citing Giannaris v. Giannaris, 960 So.2d 462, 467–68 (¶ 10) (Miss.2007)).

¶ 10. In determining whether a material change in circumstances has occurred, we must look at the “totality of the circumstances.” Minter v. Minter, 29 So.3d 840, 847 (¶ 26) (Miss.Ct.App.2009) (citing Mabus v. Mabus, 847 So.2d 815, 818 (¶ 8) (Miss.2003)). This Court has stated that:

While numerous factors may go into the initial consideration of a custody award, ... only parental behavior that poses a clear danger to the child's mental or emotional health can justify a custody change. It is only that behavior of a parent which clearly posits or causes danger to the mental and emotional well-being of a child (whether such behavior is immoral or not), which is sufficient basis to seriously consider the drastic legal action of changing custody.

Lambert v. Lambert, 872 So.2d 679, 684 (¶ 22) (Miss.Ct.App.2003) (internal citations and quotations omitted). However, “[t]he ultimate consideration in matters of child custody is the best interest of the child.” McCraw v. Buchanan, 10 So.3d 979, 984 (¶ 18) (Miss.Ct.App.2009).

¶ 11. To support his claim that custody should be modified, Brian points to instances of Bethany's immoral conduct such as her sexual encounter with a high-school student and the presence of male friends in her home with the children present. Since Bethany's incident of sexual misconduct with a high-school student was not known to Brian prior to the divorce proceedings, the chancellor did take the matter into consideration when examining the issue of custody modification. See Powell, 976 So.2d at 363 (¶ 22) (a court may sometimes consider pre-divorce circumstances in order to “[t]o determine whether a change of circumstances has occurred since the original decree”). Bethany admitted at trial that she knew that the misconduct was “wrong,” which, she explained, is why it only happened once. The record further shows that Bethany dated two men after her divorce—Will and Cain Cannon. She testified that she only dated Cain for a couple of weeks and that he only spent the evening at the house when the boys were not...