Burrus v. Burrus
| Docket Number: | 2005-CA-00356-COA Linked Case(s): 2005-CA-00356-COA ; 2005-CT-00356-SCT |
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| Court of Appeals: |
Opinion Link Opinion Date: 12-12-2006 Opinion Author: Griffis, J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Modification of custody - Periodic alimony Judge(s) Concurring: King, C.J., Lee and Myers, P.JJ., Southwick, Irving, Chandler, Barnes, Ishee and Roberts, JJ. Procedural History: Bench Trial Nature of the Case: CIVIL - CUSTODY |
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| Trial Court: |
Date of Trial Judgment: 01-14-2005 Appealed from: Harrison County Chancery Court Judge: Sanford R. Steckler Disposition: CHANCELLOR MODIFIED CUSTODY, CHILD SUPPORT, ALIMONY, AND FOUND MOTHER IN CONTEMPT. Case Number: C2401-02-01947-3 |
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| Party Name: | Attorney Name: | |||
| Appellant: | Jolee A. Burrus |
T. JACKSON LYONS |
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| Appellee: | Ronald A. Burrus | MICHAEL G. PIAZZA |
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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: | Modification of custody - Periodic alimony |
| Summary of the Facts: | Ronald and Jolee Burrus were divorced in 2003. In their judgment of divorce, they agreed to joint legal and physical custody of their three children. Ronald agreed to pay $700 each month to Jolee in child support and $1,100 each month, for the first eighteen months, in alimony. After the first eighteen months, Ronald’s alimony payment would increase to $1,200 each month. The alimony was to continue until Jolee remarried or upon further order of the court. After the divorce, Jolee began a relationship with Ronald’s brother, a convicted sex offender, who was recently released from prison in Texas. Ronald filed a sworn complaint for modification and for other relief, asking the court to grant him custody of the children, require Jolee to pay child support, terminate the periodic alimony, and enter a monetary judgment against Jolee. Ronald also filed a sworn motion for ex parte temporary relief asking for immediate custody and a suspension of his child support payments. The judge entered an ex parte order that temporarily removed the children from Jolee’s custody, placed the children in Ronald’s custody, and suspended Ronald’s child support obligation until a full hearing could be held. Jolee filed a petition for citation of contempt, a motion to set aside ex parte order, and a counter complaint for modification and for other relief. The chancellor modified custody of the children, terminated Ronald’s child support obligation, terminated Jolee’s alimony payments, imposed a child support obligation on Jolee, and found Jolee in contempt of court. Jolee appeals. |
| Summary of Opinion Analysis: | Issue 1: Periodic alimony Jolee argues that the chancellor erred when he terminated her periodic alimony, because her sexual relationship with Ronald’s brother did not amount to “cohabitation.” Periodic alimony may be terminated based on cohabitation or a de facto marriage. Here, the chancellor, in his discretion, found that the evidence showed Jolee cohabited with James, and Jolee provided sufficient financial support to justify a material change in circumstances that would support the termination of alimony. The chancellor applied the proper standard when he found cohabitation based on the financial aspects of the relationship and not the moral aspects of the relationship. There is evidence to support the chancellor’s conclusion that James and Jolee have arranged their physical living arrangements and financial affairs as a couple evidencing a de facto marriage. Issue 2: Custody Jolee argues that the chancellor erred when he modified custody and gave Ronald physical custody of the children. In the ordinary modification proceeding, the non-custodial party must prove that a substantial 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. The chancellor determined that there was a substantial or material change in circumstances that adversely affected the children’s welfare. The chancellor then conducted an Albright analysis and found the following factors to be neutral: age, health, sex of the child; continuity of care; physical and mental health and age of the parents; emotional ties of the parent and the child; and the home, school and community record of the child. The chancellor found the following factors to favor Ronald: parenting skills, willingness, and capacity to provide primary child care; employment of the parent and responsibilities of that employment; moral fitness; and stability of home. The chancellor found no factors in favor of Jolee. Based on the record, there was sufficient evidence to support the chancellor’s decision to modify custody. |
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