Wikel v. Miller
| Docket Number: | 2009-CA-00106-COA Linked Case(s): 2009-CA-00106-COA ; 2009-CT-00106-SCT |
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| Court of Appeals: |
Opinion Link Opinion Date: 06-22-2010 Opinion Author: Barnes, J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Modification of child custody Judge(s) Concurring: King, C.J., Myers, P.J., Irving, Griffis, Roberts and Maxwell, JJ. Dissenting Author : Carlton, J., dissents with separate written opinion Dissent Joined By : Lee, P.J., and Ishee, J. Procedural History: Bench Trial Nature of the Case: CIVIL - CUSTODY |
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| Trial Court: |
Date of Trial Judgment: 12-02-2008 Appealed from: OKTIBBEHA COUNTY CHANCERY COURT Judge: Kenneth M. Burns Disposition: MOTION FOR MODIFICATION OF CHILD CUSTODY DENIED Case Number: 2004-0496 |
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| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | Brian E. Wikel |
JAMES C. HELVESTON, MICHELLE DEAN EASTERLING |
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| Appellee: | Bethany J. Wikel Miller | CARRIE A. JOURDAN, REBECCA ANNE YOUNGER | ||
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 |
| Summary of the Facts: | When Brian Wikel and Bethany Wikel Miller divorced, primary physical custody was awarded to Bethany, subject to Brian’s specified visitation rights. The property settlement provided that Brian would have alternating weekend visitation and one night of midweek overnight visitation. Shortly after the divorce, the children began experiencing emotional and behavioral problems. Brian subsequently filed a complaint requesting modification of the primary physical custody of the children from Bethany to Brian, citing a substantial change in circumstances, namely, Bethany’s inappropriate and immoral behavior. Alternatively, Brian requested that the chancellor modify the existing visitation schedule to provide more extended visitation periods. Bethany filed a counter-claim seeking an increase in child support, the right to claim an income tax deduction on both children, and a modification of the visitation schedule. She also sought sole legal and physical custody of the children. The chancery court denied Brian’s motion for modification, finding that the children were doing well in school; the children’s emotional problems were primarily a result of the divorce transition; and Bethany had been remarried for two years. The chancellor also denied Bethany’s request for an increase in child support. However, due to the relocation of both Bethany and Brian, the chancellor did modify the existing visitation schedule. Brian filed a motion for reconsideration of the custody issue or, in the alternative, to revise the specified visitation periods, and Bethany filed a motion to reconsider the request for modification of child support. The chancellor overruled Bethany’s motion and partially overruled Brian’s motion as to the issue of modification of child support. The chancellor granted Brian’s motion in regard to an amendment to Brian’s visitation schedule. Brian appeals. |
| Summary of Opinion Analysis: | Brian argues that the children’s emotional problems, their exposure to Bethany’s boyfriends, and Bethany’s reluctance to communicate with Brian warrant a change in primary physical custody. In order to obtain a modification of child custody, the non-custodial parent must 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. The chancellor had the discretion to consider that, at the time of the hearing, Bethany had been married for two years; therefore, he found that any poor judgment on Bethany’s part was less likely to occur in the future. Nothing in the record shows that Bethany’s rare lapses of judgment caused any emotional harm to her children. Bethany was proactive in obtaining counseling for the boys upon a showing of behavioral problems immediately following the divorce, and her actions promoted the children’s best interests. In regard to school activities and grades, Brian has the right to obtain any of the children’s school records and information, and the record shows that he has taken full advantage of this right. Brian also argues that the children’s need for counseling is an indication that a modification of custody is warranted. The record clearly shows that the majority of the children’s emotional problems were a result of the divorce, namely the transition of going back and forth between Bethany’s and Brian’s homes, and one of the children’s distress that his father did not spend more quality time with them during visitation. Brian also claims that Bethany refused to cooperate with him on visitation and that this had an adverse effect on the children. Many of the incidents were either minor disagreements on where to meet or involved Brian’s wanting the children outside of the visitation schedule. The chancellor capably addressed this issue with the imposition of a comprehensive visitation schedule. |
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