Duke v. Elmore
| Docket Number: | 2005-CA-00328-COA Linked Case(s): 2005-CA-00328-COA ; 2005-CT-00328-SCT |
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| Court of Appeals: |
Opinion Link Opinion Date: 08-22-2006 Opinion Author: Ishee, J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Modification of child custody - Material change in circumstances - Child’s welfare Judge(s) Concurring: King, C.J., Lee and Myers, P.JJ., Southwick, Chandler, Griffis, Barnes and Roberts, JJ. Dissenting Author : Irving, J. Procedural History: Bench Trial Nature of the Case: CIVIL - CUSTODY |
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| Trial Court: |
Date of Trial Judgment: 08-20-2003 Appealed from: Monroe County Chancery Court Judge: Talmadge Littlejohn Disposition: CHANCELLOR AWARDED PHYSICAL CUSTODY OF MINOR CHILD, AS WELL AS $106.40 PER MONTH IN CHILD SUPPORT, TO FATHER. Case Number: 2001-46 |
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| Party Name: | Attorney Name: | |||
| Appellant: | Heidi Davis Elmore Duke |
JAK MCGEE SMITH |
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| Appellee: | Robert E. Elmore, Jr. | DAVID LEE BREWER, CHRISTOPHER HEDERI NEYLAND |
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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 child custody - Material change in circumstances - Child’s welfare |
| Summary of the Facts: | Robert Elmore, Jr. moved for modification of custody of his and Heidi Elmore Duke’s minor child. The chancellor granted modification of custody, awarding physical custody, as well as $106.40 per month in child support, to Robert. Heidi appeals. |
| Summary of Opinion Analysis: | Heidi argues that the points emphasized by the chancellor as lending to a substantial and material change in circumstances were not supported by the evidence. The chancellor noted that Heidi had moved four times within the two years since the divorce, maintained sporadic employment, and ended up moving into a two-bedroom home with a convicted felon. Viewing the totality of the circumstances, the chancellor did not err by finding that a substantial and material change in circumstances had occurred since the time of the original custody decree. Heidi also argues that the chancellor failed to cite one fact to show how the custodial parent’s conduct had adversely affected the child. The chancellor clearly found that, considering the totality of the circumstances, the child’s welfare was adversely affected. While there was no evidence of dangerous or illegal behavior, the chancellor nevertheless found that, considering the totality of the circumstances, Heidi’s cohabitation with a convicted felon, when combined with her sporadic employment and frequent moves, constituted an environment adverse to the child’s welfare. |
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