Robinson v. Brown
| Docket Number: | 2009-CA-01599-COA Linked Case(s): 2009-CA-01599-COA ; 2009-CA-01599-COA |
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| Court of Appeals: |
Opinion Link Opinion Date: 03-22-2011 Opinion Author: Carlton, J. Holding: Affirmed. |
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| Additional Case Information: |
Topic: Modification of child custody - Continuance - Material change in circumstances - Child support - Section 43-19-101 - M.R.C.P. 52(b) Judge(s) Concurring: Lee, C.J., Irving and Griffis, P.JJ., Myers, Ishee, Roberts and Maxwell, JJ. Non Participating Judge(s): Barnes, J. Procedural History: Rehearing Nature of the Case: CIVIL - CUSTODY |
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| Trial Court: |
Date of Trial Judgment: 08-06-2009 Appealed from: Lee County Chancery Court Judge: John A. Hatcher Disposition: Granted Motion for Modification and Changed Physical Custody of the Children from Mother to Father Case Number: 02-0518(41)H |
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| Note: | From the Court: On our own motion, we granted rehearing in this case. The original opinon is withdrawn, and this opinion is substituted therefor. | |
| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | Mary Elizabeth Brown Robinson |
WILLIAM R. WRIGHT, AMANDA JANE PROCTOR |
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| Appellee: | Paul Arthur Brown | EDWIN HUGHES PRIEST | ||
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 - Continuance - Material change in circumstances - Child support - Section 43-19-101 - M.R.C.P. 52(b) |
| Summary of the Facts: | Rehearing is granted on the court’s own motion, and this opinion is substituted for the original opinion. Mary (Liz) Brown Robinson 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. By their agreement, the parties shared legal custody of the children. After Liz remarried and moved 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 his 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. The chancery court ordered that Paul could “purge” the contempt by paying Liz the amount in-full by the end of the day on August 5, 2009. Because Paul paid the arrearage in-full, the chancellor dismissed Liz’s defense that Paul stood before the court with “unclean hands.” The chancellor provided a bench ruling finding that a substantial and material change in circumstances adverse to the children’s welfare and best interests had occurred in Liz’s home. The chancellor found that the Albright analysis favored Paul and awarded custody of the children to him, subject to Liz’s visitation. Liz appeals. |
| Summary of Opinion Analysis: | Issue 1: Continuance At the beginning of the trial, Liz moved for a continuance on the ground that Paul had not served his discovery responses until the morning of trial. Liz argues on appeal that the chancellor erred in denying her requested continuance. Paul, however, argued that the parties’ attorneys had previously discussed the discovery responses the day before trial and that his responses contained nothing unexpected and contained no unfair surprise. 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 this case shows that no manifest injustice occurred as a result of the denied continuance, nor does the record reflect any prejudice to Liz as a result of the denial. 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. 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. If the chancellor finds that a material change has occurred, the chancellor must then make a separate assessment to determine if the change is adverse to the child's welfare. Paul alleged that Liz’s move to Ocean Springs, in addition to other factors, constituted a material change in circumstances which warranted a modification of child custody. 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. Here, 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. The couple’s daughter, aged fifteen and eighteen, 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 and in failing to provide written findings as to the reasonableness of applying the statutory child-support guidelines. The record shows that Liz neither raised an objection during trial nor sought a post-trial amendment regarding the adequacy of the chancellor’s findings of the reasonableness of the child-support guidelines and the amount of child-support award. Where the adjusted gross income calculates to an amount greater than $50,000, section 43-19-101 directs the chancellor to make a written finding in the record as to whether application of the guidelines is reasonable. The purpose of M.R.C.P. 52(b) is to enable the appellate court to obtain a correct understanding of the factual issues determined by the trial court as a basis for the conclusions of law and judgment entered thereon. However, a party who failed to prove his strongest case is not entitled to a second opportunity by moving to amend a finding of fact and conclusion of law. The record shows that the chancellor explained that he based the child-support award on evidence in the record, including Liz’s adjusted gross income as reflected on a copy of a recent check stub, which provided a statement of her earnings. Additionally, during Liz’s testimony, the chancellor acknowledged that her 8.05 financial statement was unsigned, failed to include a total monthly income, and also failed to include a signed certificate of compliance. The challenge of the chancellor’s findings is procedurally barred. In addition, the testimony and financial information relied on by the chancellor provides sufficient support for the award of child support. |
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