Sudduth v. Mowdy


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Docket Number: 2007-CA-00575-COA
Linked Case(s): 2007-CA-00575-SCT
Court of Appeals: Opinion Link
Opinion Date: 09-30-2008
Opinion Author: King, C.J.
Holding: Affirmed
Additional Case Information: Topic: Child custody - Material change in circumstances - Newly discovered evidence - M.R.C.P. 60(b)(3)
Judge(s) Concurring: Lee and Myers, P.JJ., Irving, Chandler, Barnes, Ishee, Roberts, and Carlton, JJ.
Concurs in Result Only: Griffis, J., concurs in result only without separate written opinion.
Procedural History: Bench Trial
Nature of the Case: CIVIL - CUSTODY
Trial Court: Date of Trial Judgment: 02-02-2007
Appealed from: Lauderdale County Chancery Court
Judge: Jerry Mason
Disposition: MOTION TO MODIFY CUSTODY AND MOTION FOR A NEW TRIAL DENIED
Case Number: 00-753-M
  Party Name: Attorney Name:   Brief(s) Available:
Appellant: BRADLEY J. SUDDUTH




 THOMAS GOODWIN BITTICK



  
  • Appellant #1 Brief
    		•
    Appellee: MELISSA MOWDY JAMES C. MAYO  
    Synopsis provided by:

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    Topic: Child custody - Material change in circumstances - Newly discovered evidence - M.R.C.P. 60(b)(3)
    Summary of the Facts: When Brad and Melissa Mowdy divorced, the chancellor ordered Brad and Melissa to share joint legal custody of their daughter, with Melissa having physical custody. Brad was allowed liberal visitation and ordered to pay child support. Brad and Melissa later agreed that their daughter would live with Brad. Brad and Melissa filed a joint motion to modify child support, and the chancery court entered an agreed order that terminated Brad’s child support obligation. However, the order stated that Melissa would still maintain physical custody of the child. This arrangement continued for twenty months. Melissa then asked Brad to return the child to her, and Brad refused to do so. Brad filed a motion to modify custody, and Melissa filed a petition for writ of habeas corpus. The chancellor ordered Brad to return the child to Melissa. After Brad did so, Melissa no longer allowed Brad to exercise visitation with their daughter. The chancery court entered an agreed temporary judgment that reestablished Brad’s right to visitation. However, problems persisted with Brad’s visitation. After a trial, the chancellor denied Brad’s request for a modification of custody. Brad appeals.
    Summary of Opinion Analysis: Issue 1: Material change in circumstances Brad argues that the chancellor’s decision that the material change in circumstances did not have an adverse effect on the couple’s daughter was clearly erroneous and manifestly wrong. In order for child custody to be modified, a non-custodial party must prove there has been a substantial change in the circumstances affecting the child; the change adversely affects the child’s welfare; and a change in custody is in the best interest of the child. Brad complained that Melissa neglected to address the child’s dental problems. However, her teeth were eventually treated. Brad complained that their daughter witnessed her mother in numerous inappropriate relationships. Melissa testified that their daughter was present on a few occasions when she spent the night with a boyfriend, but she denied having sexual relations with any of the men in the child’s presence. Brad complained that Melissa gave the child a powerful anti-psychotic drug, which was not FDA-approved for children. Melissa testified that their daughter took one-half of a pill of Risperdal only one time, after which Brad and Melissa agreed that she would no longer take the medication. Brad complained that Melissa refused to let him exercise his visitation rights, causing their daughter great stress. Brad did not prove that the couple’s daughter was adversely affected by these occurrences. While it is unfortunate that Melissa denied Brad’s visitation, the chancellor held Melissa in civil contempt of court for her failure to comply with the visitation order. Issue 2: Newly discovered evidence Brad argues that the chancellor abused his discretion by denying his motion for a new trial based on newly discovered evidence – their daughter’s report card from August to December 2006, which indicated that she was failing the first grade. M.R.C.P. 60(b)(3) provides relief from a final judgement or an order if the movant can show that there is newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial. The chancellor did not abuse his discretion by denying Brad’s motion for a new trial. The record indicates that, during the trial, Brad presented evidence of the child’s poor school performance in kindergarten. Although the daughter’s final first-grade report card for the semester was not available until after the date of trial, there is no evidence in the record to indicate that Brad could not have obtained her school records sooner.


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