Bolton v. Bolton


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Docket Number: 2009-CA-01288-COA

Court of Appeals: Opinion Link
Opinion Date: 05-24-2011
Opinion Author: Roberts, J.
Holding: Affirmed.

Additional Case Information: Topic: Modification of child custody - Modification of visitation - Material change in circumstances - Best interest of child - Child support credit
Judge(s) Concurring: Lee, C.J., Irving and Griffis, P.JJ., Myers, Barnes, Ishee, Carlton and Maxwell, JJ.
Non Participating Judge(s): Russell, J.
Procedural History: Bench Trial
Nature of the Case: CIVIL - CUSTODY

Trial Court: Date of Trial Judgment: 07-09-2009
Appealed from: Itawamba County Chancery Court
Judge: Jacqueline Mask
Disposition: Modification of Child Custody and Judgment for the Appellant of $4,735 in Child-Support Arrearages
Case Number: 2003-0002(29)M

  Party Name: Attorney Name:   Brief(s) Available:
Appellant: Stephanie Ann Bolton




JOHN DAVID WEDDLE



 
  • Appellant #1 Brief
  • Appellant #1 Reply Brief

  • Appellee: Randy Wayne Bolton, Jr. D. KIRK THARP, RICHARD SHANE MCLAUGHLIN, NICOLE H. MCLAUGHLIN  

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    Topic: Modification of child custody - Modification of visitation - Material change in circumstances - Best interest of child - Child support credit

    Summary of the Facts: When Stephanie Bolton and Randy Bolton divorced in 2003, Stephanie received primary physical custody of the couple’s son. Randy later filed a motion to modify custody and Stephanie filed a counter-complaint against Randy to recover child-support arrearages. The chancellor awarded Stephanie a judgment for those arrearages. However, the chancellor also deducted from that judgment other money and support that Randy had provided from that judgment. The chancellor also granted Randy custody of the couple’s son. Stephanie appeals.

    Summary of Opinion Analysis: Issue 1: Modification of visitation Stephanie argues that the chancellor erred by extending Randy’s visitation with the couple’s son after testimony had not been completed on July 25, 2008. When the terms of visitation are at issue, the “change-in-circumstances” rule does not apply, because the chancellor is not being asked to change the permanent custody of the child. The chancellor gave Randy extended visitation, but it was not a permanent resolution. It was a temporary decision that was to be followed with a decision on the merits of Randy’s complaint for modification of custody. Under the precise circumstances of this case, the chancellor acted within her discretion when she allowed Randy to have extended visitation with his son until the chancellor could resolve the question of whether it would be appropriate to modify custody. The chancellor could have reasonably been concerned that Stephanie might attempt to apply pressure to her son to change his testimony. Additionally, the chancellor heard testimony that Stephanie and her father spoke disparagingly about Randy in front of the children. Issue 2: Material change in circumstances Stephanie argues that the chancellor erred by finding that there had been a material change in circumstances adverse to the son’s best interest. To succeed in an attempt to modify custody, the non-custodial parent must show a material change in circumstances has occurred since the issuance of the judgment or decree sought to be modified, the change adversely affects the welfare of the child, and the proposed change in custody would be in the best interest of the child. Stephanie argues that the chancellor incorrectly determined that her son had been adversely affected by “frequently being left home alone.” Stephanie notes that there was no testimony that she leaves her son home alone. Stephanie is correct. The testimony indicated that Stephanie left her son and her daughter home alone after school and on most Saturdays. There was also ample evidence that the son’s academic performance had been suffering. It is not unreasonable to connect his academic performance to the time that he is left unsupervised after school. Next, Stephanie attempts to mitigate the portion of the chancellor’s rationale in which the chancellor found that there had been a material change in circumstances that adversely affected the son in that Stephanie frequently yelled at him and scolded him. There was no evidence that Stephanie had ever physically harmed her son. However, there was ample testimony that Stephanie had a volatile temper. In weighing all of the testimony and evidence before her, the chancellor could have reasonably concluded that there was an atmosphere of tension and hostility in Stephanie’s household, and under the totality of the circumstances, the son had been adversely affected by that atmosphere. This is particularly true considering the evidence that the son often became upset by Stephanie’s temper and that he was increasingly withdrawn. The chancellor could have reasonably found that the son’s relationship with Stephanie had deteriorated based on Stephanie’s threats to prevent him from visiting with Randy. Randy testified that he was never allowed to exercise any visitation with the children that was not approved by Stephanie. According to the son, Stephanie refused to split the expenses involved with flying the children to their visitation with Randy. Interference with visitation may constitute a material change in circumstances given sufficient severity. The chancellor could have also found that the son’s relationship with Stephanie had deteriorated because Stephanie attempted to interfere with his relationship with Randy. Finally, the chancellor could have found that Stephanie’s relationship with the son had deteriorated because Stephanie disparages Randy in front of him. Thus, the chancellor did not abuse her discretion when she found that there had been a material change in circumstances that was adverse to the son’s best interest. Issue 3: Best interest Stephanie argues that the chancellor erred when she held that it was in the son’s best interest to award physical custody to Randy. The polestar consideration in child custody cases is the best interest and welfare of the minor child. The Albright factors must be utilized to determine if a custody change is in the best interest of a child. The chancellor concluded that four of the Albright factors favored neither party. Those factors were: which parent has the best parenting skills and which has the willingness and capacity to provide primary child care; the employment of the parent and responsibilities of that employment; moral fitness of the parents; and stability of home environment and employment of each parent. Of the remaining factors, the chancellor concluded that they all favored Randy, and none of them favored Stephanie. Stephanie’s sole argument is that the chancellor erred by separating her son from his sisters. There is no “hard and fast” rule that the best interest of siblings will be harmed by separating them. Tyler’s older sister testified that he was not happy in California and that she would be “upset” if Tyler did not live with her in California “but as long as he’s happy, that will be fine.” The chancellor is in the best position to evaluate all factors relating to the best interest of the child. Issue 4: Child support credit The chancellor found Randy in contempt for failure to pay child support in the amount of $14,537 through August 2007. The chancellor then applied credits of $9,801.35 toward the unpaid child support and awarded Stephanie a judgment of $4,735.65. Stephanie argues that the chancellor was prohibited from deducting any amount from the judgment for unpaid child support. Court-ordered child-support payments vest in the child as they accrue and may not thereafter be modified or forgiven, only paid. However, the noncustodial parent may be entitled to credit for any additional support which he/she has evinced by satisfactory proof to the trial court. The chancellor found that Randy owed Stephanie $14,537 in child-support. The chancellor deducted $2,939 from that figure because Randy presented evidence that he sent that money to Stephanie via Western Union. The chancellor also deducted $1,019.85 from Randy’s child-support arrearage because that figure represented one-half of the costs associated with flying the children to and from Randy’s visitation during Thanksgiving 2007. The testimony at trial indicated that Randy and Stephanie had agreed to split the costs associated with flying the children to and from their visitation with Randy, and Stephanie had never reimbursed Randy for that amount. Next, the chancellor deducted $1,995 from Randy’s child-support arrearage to account for the fact that Randy and Stephanie had lived together after their divorce – specifically, from September 2004 through March 2005. The chancellor multiplied Randy’s $285 per month child support obligation by the seven undisputed months that Randy and Stephanie lived together while divorced. The chancellor then deducted an additional $2,137.50 from Randy’s remaining child support arrearage. That figure represented a deduction for the time that Stephanie disputed that she lived with Randy. That is, Randy testified that he and Stephanie were also living together from May 2003 through August 2004. Stephanie disputed that. Because Stephanie disputed that she and Randy lived together during that time, the chancellor reduced that figure by fifty percent for a total deduction of $2,137.50. Finally, the chancellor deducted $1,710 from Randy’s child support arrearage. That figure represented Randy’s $285 per month child support obligation multiplied by the six months that the couple’s son lived with Randy from July 2008 through December 2008. Under the circumstances, the chancellor’s decision was not manifestly erroneous.


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