Porter v. Porter
| Docket Number: | 2006-CT-01592-SCT Linked Case(s): 2006-CA-01592-SCT ; 2006-CA-01592-COA ; 2006-CA-01592-COA ; 2006-CT-01592-SCT |
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| Supreme Court: | Opinion Link Opinion Date: 12-03-2009 Opinion Author: Randolph, J. Holding: Affirmed in part, reversed and remanded in part. |
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| Additional Case Information: |
Topic: Modification of child custody - Legal standard - Section 93-5-24(5)(c) - Guardian ad litem recommendation - Modification of child support - Section 93-5-23 - Relief from judgment - M.R.C.P. 60(b)(5) & 60(b)(6 Judge(s) Concurring: Carlson, P.J., Dickinson, Lamar and Pierce, JJ. Non Participating Judge(s): Chandler, J. Concur in Part, Dissent in Part 1: Waller, C.J. with separate written opinion. Concurs in Result Only: Graves, P.J., and Kitchens, J. Procedural History: Bench Trial Nature of the Case: CIVIL - CUSTODY Writ of Certiorari: yes Appealed from Court of Appeals |
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| Trial Court: |
Date of Trial Judgment: 07-11-2006 Appealed from: MADISON COUNTY CHANCERY COURT Judge: William Joseph Lutz Disposition: The chancery court denied Rachel Porter's motion for relief from judgment; CUSTODY OF MINOR CHILDREN MODIFIED; FATHER AWARDED PRIMARY PHYSICAL CUSTODY. Case Number: 99-674 |
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| Note: | This opinion reverses a previous judgment by the Court of Appeals. See original Court of Appeals opinion: http://www.mssc.state.ms.us/Images/HDList/..%5COpinions%5CCO50984.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 BARKSDALE PATTERSON, DEBORAH H. BELL, W. BENTON GREGG | ||
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: | Modification of child custody - Legal standard - Section 93-5-24(5)(c) - Guardian ad litem recommendation - Modification of child support - Section 93-5-23 - Relief from judgment - M.R.C.P. 60(b)(5) & 60(b)(6 |
| Summary of the Facts: | Rachel Porter Spivey and Timothy Porter were divorced in 2000. Incorporated into the divorce decree was a “Child Custody, Child Support and Property Settlement Agreement” providing for joint physical and legal custody of their three minor children. When Rachel’s husband received and accepted a job offer in Memphis, Rachel petitioned the chancery court for a revision of the current custodial arrangement, asking for the Porter children to live primarily in Memphis with her. Tim answered and counter-petitioned, seeking sole physical custody of the Porter children in Jackson. The chancery court concluded that the children’s best interest would be served by granting Tim sole physical custody with Rachel having liberal rights of visitation. After the judgment was entered, Dan was terminated from his employment in Memphis. Rachel then filed a Motion for Relief from Judgment, asserting that because of Dan’s termination, she would remain in Jackson, and sought reinstatement of the original Agreement. After the chancery court denied Rachel’s motion, she appealed. The Mississippi Court of Appeals affirmed the grant of sole physical custody to Tim, but reversed and remanded for a modification of Rachel’s visitation schedule, which was based upon her living in Memphis. The Supreme Court granted certiorari. |
| Summary of Opinion Analysis: | Issue 1: Legal standard Since the Agreement provided for “joint physical custody,” defined in the Agreement as in section 93-5-24(5)©, the phrases “primary physical custody” and “secondary physical custody,” undefined in the Agreement, cannot act to transform such express “joint physical custody” into de facto sole physical custody with liberal visitation. Under the Agreement, Rachel and Tim exercised joint physical and legal custody. In order to modify child custody in joint custody cases, it must be proven that a material change in circumstances has occurred that adversely affects the welfare of the child. In applying the “material change in circumstances which adversely affects the children’s welfare” standard in the joint-custody context, an Albright analysis is proper when it would be impractical to leave custody as it stood at the time of the hearing. The circuit court applied the impractical/impossible analysis in this case, finding that “Rachel’s move to the State of Tennessee has made the present joint physical and legal custody arrangement impractical and as such constitutes a material change in circumstances adverse to the children’s best interest.” As the impractical/impossible standard was satisfied, the chancery court then conducted an Albright analysis. The chancery court determined that four Albright factors favored Tim, one Albright factor “minimally favor[ed]” Rachel, and the children’s “best interest would be served by granting [Tim] sole physical custody with Rachel having liberal rights of visitation.” Given the evidence presented, the chancellor did not abuse his discretion. Issue 2: Guardian ad litem recommendation There is no requirement that the chancellor defer to the findings of the guardian ad litem. Only when a chancellor’s ruling is contrary to the recommendation of a statutorily required guardian ad litem should the reasons for not adopting the guardian ad litem’s recommendation be stated by the court in the findings of fact and conclusions of law. Here, the chancellor was not statutorily required to appoint a guardian ad litem. Furthermore, the chancellor expressly stated his disagreement with the guardian ad litem and clearly outlined his reasoning in granting sole physical custody to Tim. Thus, there was no error. Issue 3: Modification of child support Although section 93-5-23 grants the chancellor broad equitable authority regarding the support of minor children, to order such support without the custodial parent’s requesting it by a pleading is an arbitrary deprivation of due process. In this case, Rachel was not provided notice that she might be required to defend a claim of child support nor was there a suggestion in the record that support payments from Rachel were even being contemplated by the court on its own or asked for by Tim. Thus, the chancery court’s imposition of child-support obligations upon Rachel is reversed. Issue 4: Relief from judgment One who proceeds under either M.R.C.P. 60(b)(5) or 60(b)(6) must do so within a reasonable time. Under Rule 60(b)(5), relief from judgment is appropriate if it is no longer equitable that the judgment should have prospective application. Relief under Rule 60(b)(6) is reserved for extraordinary and compelling circumstances. Although Rachel’s anticipated move to Memphis and “Petition to Modify Defendant’s Periods of Physical Custody” precipitated this action, the chancellor’s subsequent Albright analysis favored Tim on factors unrelated to Rachel’s anticipated move, including parenting skills and stability of the home environment and employment of the parent. Thereafter, the chancellor, having been alerted to the change in Rachel’s plans, found no reason to change his decision. Such reasoning, combined with the chancery court’s perception of litigation-related strain between Rachel and Tim, convinced the court to deny Rachel’s Motion for Relief from Judgment and there was no abuse of discretion in so ruling. However, the case is remanded so the chancellor can establish a new visitation schedule. |
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