Jones v. McQuage
| Docket Number: | 2004-CA-01696-COA Linked Case(s): 2004-CT-01696-SCT ; 2004-CA-01696-COA |
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| Court of Appeals: |
Opinion Link Opinion Date: 01-03-2006 Opinion Author: Myers, P.J. Holding: Reversed and Rendered |
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| Additional Case Information: |
Topic: Modification of custody - Material change in circumstances - Visitation Judge(s) Concurring: King, C.J., Lee, P.J., Irving, Chandler, Griffis, Barnes and Ishee, JJ. Procedural History: Bench Trial Nature of the Case: CIVIL - CUSTODY |
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| Trial Court: |
Date of Trial Judgment: 07-31-2004 Appealed from: DeSoto County Chancery Court Judge: Percy L. Lynchard, Jr. Disposition: CHANGE OF CUSTODY AND VISITATION GRANTED Case Number: 03-6-936 |
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| Party Name: | Attorney Name: | |||
| Appellant: | Grady Watson Jones, III |
PEGGY A. JONES |
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| Appellee: | Kelly Jones McQuage | MALENDA HARRIS MEACHAM |
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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 - Visitation |
| Summary of the Facts: | Kelly McQuage filed suit in the Chancery Court of DeSoto County seeking to enroll the “Permanent Parenting Plan” entered in Shelby County, Tennessee, on August 14, 2002, and for modification of that decree. Grady Jones, III, responded stating that he did not contest the enrollment of the decree, but that another decree dated February 14, 2003, modified the August 14, 2002 decree. Additionally, Grady contested the modifications of these prior decrees. The court enrolled and then modified the Tennessee decree. Grady appeals. |
| Summary of Opinion Analysis: | In its order, ruling that joint custody should be terminated and sole custody should be vested in Kelly, the court stated that there had been a material change in circumstances and that a change would be in the best interest of the child. The court also stated that the visitation schedule was not working and that it should be modified. The court pointed to several issues that the court believed to be material changes. The first of these changes was acrimony, disagreement, failure to confer, and failure to communicate between the parties. The court concluded that the parties prior modifications of the “Permanent Parenting Plan” and the numerous e-mails entered as exhibits demonstrate that the parties are unable to agree on issues relating to the child. The only litigation between the final divorce decree and the current suit are the August 14, 2002 “Permanent Parenting Plan” and the February 14, 2003 modification that corrected a clerical error that had been agreed upon by the parties for the August decree. This is not a continuous series of litigation that rises to a material change to warrant a change of custody. The next change that the court considered as material was the remarriage of Grady and the involvement of the stepmother in the activities of the child. Mississippi law has long held that remarriage is not a material change in circumstance to justify the change of custody. This remarriage was not a change in circumstance since Grady was remarried prior to both the August 2002 plan and February 2003 modification. Kelly filed suit for the modification of the agreed “Permanent Parenting Plan” less than four months following its entry. The visitation plan should be given an opportunity to work. There is not a preponderance of the evidence that supports a material change in circumstance from the prior decree that is adverse to the child to merit a change in joint custody. The almost immediate filing of a petition for modification of the Tennessee decree did not give the plan an opportunity to work. |
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