ROBINSON v. BROWN


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Docket Number: 2009-CA-01599-COA
Linked Case(s): 2009-CA-01599-COA ; 2009-CA-01599-COA

Court of Appeals: Opinion Link
Opinion Date: 01-25-2011
Opinion Author: Judge Carlton
Holding: Affirmed.

Additional Case Information: Topic: Modification of custody - Continuance - Material change in circumstances - Child support - M.R.C.P. 52 - Section 43-19-101


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Topic: Modification of custody - Continuance - Material change in circumstances - Child support - M.R.C.P. 52 - Section 43-19-101

Summary of the Facts: Mary Elizabeth Robinson (Liz) and Paul Brown divorced in 2002 on the ground of irreconcilable differences. The parties agreed that Liz would maintain primary physical custody of the couple’s two daughters, who at the time of the divorce were approximately twelve and eight years old. By their agreement, the parties shared legal custody of the children. In 2009, Liz remarried and relocated to Ocean Springs. Paul filed a motion for modification of custody, alleging that Liz’s move to Ocean Springs and other factors constituted a material change in circumstances which warranted a change in physical custody of the children from their mother to him. Liz answered and counter-sued, claiming that Paul came into court with “unclean hands,” as he was in contempt of court for failure to pay child support and attorney’s fees from an earlier child-support dispute. The chancery court awarded Liz a judgment against Paul for $22,290.30 for past-due child support, attorney’s fees, and accrued interest and a $100 fine for contempt of court. Because Paul paid the arrearage in-full, the chancellor dismissed Liz’s defense that Paul stood before the court with “unclean hands.” The chancellor found that substantial and material change in circumstances adverse to the children’s welfare and best interests had occurred in Liz’s home and awarded custody of the children to Paul, subject to Liz’s visitation. Liz appeals.

Summary of Opinion Analysis: Issue 1: Continuance Liz argues that the chancellor erred in denying her requested continuance, because she required the continuance to obtain Paul’s late discovery responses. The decision to grant or deny a continuance is within the sound discretion of the trial court and will not be reversed absent an abuse of discretion that resulted in a manifest injustice. The record in the present case shows that no manifest injustice occurred as a result of the denied continuance. Issue 2: Material change in circumstances Liz argues that the chancellor erred in finding that a material change in circumstances, adverse to the children, had occurred in her home, necessitating a change in the physical custody of the children from Liz to Paul. In order to modify a child-custody order, the party seeking the change in custody bears the initial burden of proving that there has been a material change in circumstances. In the event of an adverse material change in circumstances, the chancellor may determine whether the best interest of the child requires a change in custody. When analyzing the best interest of the child for the purposes of custody modification, the chancellor must make on-the-record findings for each of the Albright factors. Although Mississippi law generally has recognized that a parent’s relocation alone does not constitute a material change in circumstances, the impact of a relocation of the custodial parent upon the child constitutes a factor that the chancellor permissibly considers on the motion for modification. The distance of the move is not dispositive as to whether a material change in circumstances has occurred; it is the effect the move has on the child and the custody arrangement that is dispositive. In this case, the chancellor properly reasoned that neither remarriage nor the simple move of the custodial parent would justify a change in custody. The chancellor emphasized that he considered many factors, not just the relocation of the custodial parent or mere unhappiness of the children, when determining whether to modify custody. The couple’s daughters indicated that since the time of the divorce, they had lived primarily with their father. The chancellor found that the girls possessed a stronger emotional bond with their father, and the chancellor found the geographic separation of the siblings to constitute a factor causing substantial and material change of circumstances. The record constitutes substantial evidence to support the chancellor’s decision. Issue 3: Child support Liz argues that the chancellor erred in ordering her to pay child support in the amount of twenty percent of her adjusted gross income. Liz failed to assert this alleged error post trial to the chancellor, and such failure waives her right to now complain as to this issue on appeal. M.R.C.P. 52 allows the court to amend its findings, or make additional findings, upon motion of a party filed not later than ten days after the entry of judgment or entry of findings and conclusions of law. In addition, the chancellor explained that he based the child-support award on Liz’s adjusted gross income as reflected on a copy of a recent check stub, which provided a statement of her earnings. The evidence in the record shows that the financial information relied on by the chancellor supports the award of child support. The chancellor explained in his bench ruling that he utilized Liz’s recent check stub, which estimated Liz’s monthly income as $5,245.56, in calculating the child-support award. Also, the chancellor followed the guidelines of section 43-19-101 when calculating the child-support award. Thus, there was no abuse of discretion in the chancellor’s award of child support.


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