Porter v. Porter
| Docket Number: | 2006-CA-01592-COA Linked Case(s): 2006-CA-01592-SCT ; 2006-CA-01592-COA ; 2006-CT-01592-SCT ; 2006-CT-01592-SCT |
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| Court of Appeals: |
Opinion Link Opinion Date: 10-14-2008 Opinion Author: ISHEE, J. Holding: Affirmed in Part, Reversed and Remanded in Part |
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| Additional Case Information: |
Topic: Child custody - Anticipated adverse material change in circumstances - M.R.C.P. 60(b) - Visitation Judge(s) Concurring: King, C.J., Myers and Lee, P.JJ. Concur in Part, Dissent in Part 1: GRIFFIS, J. with separate written opinion. Concur in Part, Dissent in Part Joined By 1: Chandler, J. Concurs in Result Only: Irving, Barnes, Roberts, and Carlton, JJ. Procedural History: Bench Trial Nature of the Case: CIVIL - CUSTODY |
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| Trial Court: |
Date of Trial Judgment: 07-11-2006 Appealed from: MADISON COUNTY CHANCERY COURT Judge: William Joseph Lutz Disposition: CUSTODY OF MINOR CHILDREN MODIFIED; FATHER AWARDED PRIMARY PHYSICAL CUSTODY Case Number: 99-674 |
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| Note: | This opinion was later affirmed in part, and reversed and remanded in part by the SCT at: http://www.mssc.state.ms.us/Images/HDList/..%5COpinions%5CCO58964.pdf | |
| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | RACHEL DRISKELL PORTER (SPIVEY) |
RICHARD C. ROBERTS |
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| Appellee: | TIMOTHY WADE PORTER | WILLIAM R. WRIGHT, TRHESA BRYAN BARKSDALE, DEBORAH H. BELL, W. BENTON GREGG |
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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. |
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| Topic: | Child custody - Anticipated adverse material change in circumstances - M.R.C.P. 60(b) - Visitation |
| Summary of the Facts: | Tim Porter and Rachel Porter Spivey were granted an irreconcilable differences divorce. Under the custody agreement signed by both parties and incorporated into their divorce decree, Tim and Rachel agreed to share joint physical and legal custody of their three children from the marriage. When Rachel’s new husband accepted a job in Tennessee, Rachel filed a Petition to Modify Defendant’s Periods of Physical Custody. Tim counter-petitioned for sole physical custody. The chancellor concluded that the best interests of the children would be served by having them remain in Jackson and awarded sole physical custody to Tim. Four weeks after the chancellor awarded sole physical custody to Tim, Rachel’s husband lost his new job. Rachel then filed a motion for relief under M.R.C.P. 60(b). The chancellor denied the motion, and Rachel appeals. |
| Summary of Opinion Analysis: | Issue 1: Custody In order to bring about a custodial modification, the moving parent must show by a preponderance of the evidence that a substantial or material change in circumstances has transpired since issuance of the custody decree; that this change adversely affects the child’s welfare; and that the child’s best interests mandate a change of custody. In this case, the question to be answered is what effect, if any, the court should give to a court order purporting to bring about a custodial modification between two parents with joint physical custody when that order is predicated on an anticipated adverse material change in circumstances that never actually occurred. The chancellor should have conducted an Albright analysis after the Rule 60(b) motion was filed to re-evaluate the factors in light of the mother’s change in circumstances. However, this decision was within the chancellor’s discretion and the error is harmless. Rachel also filed a motion to recuse the judges in that chancery court district because Tim’s new wife is an attorney specializing in family law who is frequently listed as the attorney of record in cases assigned to the chancellors of that district. However, the chancellor stated that he had no recollection of her ever trying a case before him, nor did he have any preconceived notions about her that would interfere with his impartiality. Thus, there was no error with his decision not to recuse himself. Issue 2: Visitation The chancery court granted Rachel visitation rights with her children on designated weekends and holidays based on her anticipated move. Because the move never occurred, the visitation schedule must be modified. The case is reversed and remanded to the chancery court for resolution of Rachel’s visitation rights. |
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