Purviance v. Burgess


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Docket Number: 2006-CA-00931-COA
Linked Case(s): 2006-CA-00931-COA
Court of Appeals: Opinion Link
Opinion Date: 11-27-2007
Opinion Author: MYERS, P.J.
Holding: Affirmed in Part, Reversed and Rendered in Part
Additional Case Information: Topic: Modification of child custody - Material change in circumstances - Modification of child support
Judge(s) Concurring: KING, C.J., LEE, P.J., IRVING, CHANDLER, GRIFFIS, BARNES, ISHEE, ROBERTS AND CARLTON, JJ.
Procedural History: Bench Trial
Nature of the Case: CIVIL - DOMESTIC RELATIONS
Trial Court: Date of Trial Judgment: 05-03-2006
Appealed from: Hinds County Chancery Court
Judge: William H. Singletary
Disposition: AMENDED JUDGMENT REGARDING MODIFICATION OF CHILD CUSTODY AND CHILD SUPPORT
Case Number: G2000-155 S/2
  Party Name: Attorney Name:   Brief(s) Available:
Appellant: LINDY BURGESS PURVIANCE




 JOHN R. MCNEAL, JR.



  
  • Appellant #1 Brief
  • Appellant #1 Reply Brief
    		•
    Appellee: STEPHEN CHRISTOPHER BURGESS JULIE ANN EPPS, E. MICHAEL MARKS  
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    Topic: Modification of child custody - Material change in circumstances - Modification of child support
    Summary of the Facts: Lindy Burgess Purviance Spell and Stephen Burgess were granted a divorce. The court limited the visitation of Burgess with the minor child, finding him in contempt of court for failure to pay child support and awarding temporary support payments to Purviance. A final order awarded Purviance child support. Burgess later petitioned the court for modification, seeking custody of the child. The court granted his petition and awarded Burgess primary physical custody of the child, giving Purviance standard visitation rights. The chancellor further required Purviance to pay child support. When Burgess sent notice to the court that he had moved to Alabama, Purviance moved for a modification of child custody and for a temporary restraining order. The court awarded full physical and legal custody to Burgess, visitation to Purviance, and increased the amount of child support required of Purviance. Purviance appeals.
    Summary of Opinion Analysis: Issue 1: Material change in circumstances Purviance argues that she met her burden of proof by showing a material change in circumstances had occurred. Purviance claimed that Burgess and his wife failed to properly supervise and discipline the minor child, causing various injuries to the child, and that her child was at risk of suffering mental and emotional damage if he remained in the custody of his father. The chancellor found that Purviance never actually accused Burgess of abuse during trial testimony. The chancellor also found there was no evidence that Burgess or his wife were the source of the child’s injuries. The chancellor additionally found there were plausible explanations and documentary evidence regarding the injuries the child sustained while in his father’s care. Further, the chancellor noted that the record reflected that Purviance’s expert regarding the child’s bruises was uncomfortable confirming that there were definite signs of physical abuse without learning more about the child’s medical history. The chancellor determined that the child’s developmental problems, autism and attention deficit hyperactivity disorder, better explain the cause of his frequent minor injuries. The chancellor properly made a determination that in order to provide the best and most consistent care for the child, one parent should be the primary decision maker regarding his treatment. The chancellor determined it to be in the best interest of the child to make his custodial situation more conducive to continuous learning. Thus, there was no error in the chancellor’s grant of full custody to Burgess. Issue 2: Child support Purviance argues that the chancellor erred in granting additional support to Burgess because no evidence existed regarding additional or increased expenses with regard to the child. The chancellor specifically found that the child’s medical costs had increased and raised the support accordingly. Although there was testimony regarding the financial means of each party, and extensive testimony regarding the cost of medical treatment for the child, there was no request for additional child support to defray the cost of medical treatment. Purviance was seeking modification of custody and also seeking child support if custody were to e awarded to her. However, she was not sufficiently on notice that the court was considering increasing the amount of child support she would be required to pay to Burgess. Due process requires that appellant have fair notice from an appropriate pleading that an increase in the amount of the support award was being sought and was under consideration, so that he might have reasonable opportunity to offer evidence touching both the needs of the children and his ability to pay. Therefore, that portion of the judgment granting Burgess increased support payments is reversed and rendered.


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