Franklin v. Winter
| Docket Number: | 2005-CA-00082-COA | |
| Court of Appeals: |
Opinion Link Opinion Date: 08-08-2006 Opinion Author: Irving, J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Modification of custody - Material change in circumstances Judge(s) Concurring: King, C.J., Lee and Myers, P.JJ., Southwick, Chandler, Griffis, 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: 07-09-2004 Appealed from: Jackson County Chancery Court Judge: Glenn Barlow Disposition: CUSTODY OF MINOR CHILD AWARDED TO FATHER. MOTHER AWARDED VISITATION AND ORDERED TO PAY CHILD SUPPORT. Case Number: 99-1719GB |
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| Party Name: | Attorney Name: | |||
| Appellant: | Janice Amanda (Winter) Franklin |
THOMAS WRIGHT TEEL |
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| Appellee: | Robert Milner Winter | G. CHARLES BORDIS |
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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 - Material change in circumstances |
| Summary of the Facts: | When Janice (Winter) Franklin and Robert Winter were divorced, their divorce settlement provided for joint legal and physical custody of their daughter. Several years later, Winter filed a complaint to modify the custody agreement, alleging that changes in circumstances necessitated a revision of the custody agreement. The court modified the custody agreement and awarded physical custody to Winter and gave Franklin and Winter joint legal custody of the child. Franklin appeals. |
| Summary of Opinion Analysis: | In order to succeed on a complaint for modification, 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. Franklin argues that the court failed to apply the stringent requirements of a custodial modification and, instead, analyzing the facts as if an initial custody determination under Albright. Although the court devoted a majority of its opinion to discussing the Albright factors, the court did acknowledge and address the correct test for modification of a custody order. Basically, the court found that Franklin’s move to Arkansas constituted a material change to the detriment of the best interests of the child. Franklin argues that the divorce settlement gave her de facto physical custody because the times of custody set out for Winter were akin to a standard visitation schedule. Since the record does not contain a copy of the party’s divorce settlement, however, the Court cannot determine the nature of the original custody agreement. Thus, there is insufficient evidence that Franklin had de facto primary physical custody of her child and the chancellor did not err in finding that Franklin’s move to Arkansas constitutes a material change that makes the sharing of joint physical custody of the child unworkable. |
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