Powell v. Powell
| Docket Number: | 2006-CA-01892-COA | |
| Court of Appeals: |
Opinion Link Opinion Date: 03-04-2008 Opinion Author: CARLTON, J. Holding: Affirmed in Part, Reversed and Remanded in Part |
|
| Additional Case Information: |
Topic: Modification of custody - Material change in circumstances - Contempt - Modification of child support Judge(s) Concurring: KING, C.J., LEE AND MYERS, P.JJ., IRVING, CHANDLER, GRIFFIS, BARNES, ISHEE AND ROBERTS, JJ. Procedural History: Bench Trial Nature of the Case: CIVIL - DOMESTIC RELATIONS |
|
| Trial Court: |
Date of Trial Judgment: 07-12-2006 Appealed from: Harrison County Chancery Court Judge: Carter Bise Disposition: DENIED PETITION FOR MODIFICATION OF CUSTODY, INCREASED CHILD SUPPORT, DENIED PETITION FOR CONTEMPT Case Number: 00-01589 |
|
| Party Name: | Attorney Name: | |||
| Appellant: | RICHARD H. POWELL |
MARCIE TANNER SOUTHERLAND,
JENNIFER POWELL FORTNER |
||
| Appellee: | AMY SUE POWELL | JAMES L. FARRIOR |
|
|
Synopsis provided by:  If you are interested in subscribing to the weekly synopses of all Mississippi Supreme Court and Court of Appeals hand downs please contact Tammy Upton in the MLI Press office. |
|
| Topic: | Modification of custody - Material change in circumstances - Contempt - Modification of child support |
| Summary of the Facts: | Richard and Amy Powell were divorced by final decree which approved and incorporated by reference a separation and property settlement agreement wherein the parties agreed to joint legal custody of their minor children, with Amy having physical custody of the children subject to Richard’s reasonable visitation rights. Additionally, Richard agreed to pay child support in the amount of $500 per month. After the divorce, Amy began a relationship with another man and moved herself and the children to Saucier to live with him. While in Saucier, one of the Powells’ daughters, age twelve at the time, was raped in the woods behind this man’s house. Amy did not notify Richard of this event until he returned home from working offshore. Amy later relocated herself and the children to Lexington. Amy later attempted to move to Denham Springs, Louisiana. However, her living arrangement fell through and with no place to live, Amy and the children moved in with her grandmother in Springfield, Missouri. Richard filed a petition for modification of child custody and a petition for contempt. Amy decided to relocate herself and the children again. They moved to Houma, Louisiana. Amy filed an answer and a counter-complaint to Richard’s petition seeking an upward modification of child support. The chancellor denied Richard’s motion for modification of custody and his petition for contempt. The chancellor granted Amy’s motion for modification of child support. Richard appeals. |
| Summary of Opinion Analysis: | Issue 1: Modification of custody A modification of custody requires the noncustodial parent to prove that a material change of circumstances has occurred in the custodial home since the most recent custody decree, that the change adversely affects the child, and that modification is in the best interest of the child. Richard argues that the chancellor erred by failing to apply the Albright factors to determine whether a change of custody was in the best interests of his children. Because the chancellor found no material change in circumstances, the occasion to consider the Albright factors did not arise. Richard also argues that the chancellor erred in determining that no material change of circumstances had occurred since the original decree. The chancellor failed to consider the totality of the circumstances to determine whether the children’s overall living conditions had changed to their detriment. The record shows that Richard presented a number of factors, in addition to Amy’s frequent relocation, which support his claim that a material change of circumstances had occurred. While relocation of the custodial parent does not alone constitute a material change in circumstances, a material change in circumstances may be established where a custodial parent’s relocation is one of several supporting factors. The chancellor’s findings failed to mention the daughter’s rape and Amy’s reluctance to provide professional counseling for her, failed to acknowledge Amy’s unstable cohabitation with her boyfriend, and failed to consider the negative effects of the unstable environment created by Amy’s nomadic relocation and sporadic employment. Thus, the case is remanded for a full consideration by the chancellor. Richard also argues that the chancellor erred in considering testimony regarding the family’s pre-divorce relocations. On cross-examination, Richard was asked whether he, Amy, and the children moved eleven or twelve times during their marriage. Richard made no objection to this question at trial. Accordingly, he has waived the issue on appeal. In addition, there was no error in the chancellor’s limited consideration of the family’s pre-divorce moves. To determine whether a change of circumstances has occurred since the original decree, it is often necessary that post-divorce circumstances be measured against pre-divorce circumstances. Issue 2: Contempt Richard argues that the chancellor erred in failing to hold Amy in contempt. The chancellor found that the parties do not communicate well with each other, but Amy’s conduct did not rise to the level of willful and contumacious contempt of court. It is a defense to a contempt proceeding that the person was not guilty of willful or deliberate violations of a prior judgment or decree. The record does not reveal evidence which would render the chancellor’s decision clearly erroneous or manifestly wrong. Issue 3: Modification of child support The chancellor is directed to reconsider the issue of child support on remand. |
Home | Terms of Use | About the JDP | Feedback | Using JDP | MC Law Library | Mississippi Supreme Court
