Elliott v. Elliott


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Docket Number: 2002-CA-00846-COA
Linked Case(s): 2002-CT-00846-SCT ; 2002-CT-00846-SCT ; 2002-CT-00846-SCT ; 2002-CA-00846-COA

Court of Appeals: Opinion Link
Opinion Date: 10-28-2003
Opinion Author: Bridges, J.

Additional Case Information: Topic: Modification of child custody - Contempt - Incarceration
Judge(s) Concurring: McMillin, C.J., King and Southwick, P.JJ., Thomas, Lee, Irving, Myers, Chandler and Griffis, JJ.
Procedural History: Bench Trial
Nature of the Case: CIVIL - CUSTODY

Trial Court: Date of Trial Judgment: 03-06-2002
Appealed from: Madison County Chancery Court
Judge: Gail Shaw-Pierson
Disposition: GEORGE WOODS ELLIOTT'S COUNTERCLAIM FOR MODIFICATION OF THE FINAL JUDGMENT OF DIVORCE GRANTED. FULL CUSTODY OF THE MINOR CHILDREN AWARDED TO GEORGE ELLIOTT.
Case Number: 97-201

  Party Name: Attorney Name:  
Appellant: Catherine Ann Elliott




STEPHEN L. BEACH



 

Appellee: George Woods Elliott, Jr. DEBRA LYNN ALLEN  

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Topic: Modification of child custody - Contempt - Incarceration

Summary of the Facts: George and Catherine Elliott were divorced on the ground of irreconcilable differences. The court awarded joint legal and physical custody of the couple’s two children to the parties. Cathy filed a petition for modification stating that she had moved to Arizona. George filed a counterclaim for contempt and modification seeking sole physical and legal custody of the children. The chancellor found Cathy to be in contempt of court and awarded George sole physical and legal custody. Cathy appeals.

Summary of Opinion Analysis: Issue 1: Modification of custody Cathy argues that the court erred in modifying custody. To justify a change in custody, the non-custodial parent must show that there has been a substantial change in circumstances of the custodial parent since the original custody decree, the substantial change has had an adverse impact on the welfare of the child, and the change is in the best interest of the child. A geographical move by one parent which makes the application of a joint custody award impractical or impossible is a material change in circumstances. The record in this case is brimming with examples of Cathy's behavior that is adverse to the children's best interests. When Cathy moved to Arizona, it became virtually impossible for George to have custody of and visitation with his children. Therefore, the court was well within its discretion to modify the custody agreement. Issue 2: Incarceration Cathy argues that her incarceration for contempt was an abuse of discretion, manifest error, and was a result of a complete lack of understanding of Mississippi law. A citation of contempt is proper when the contemnor has willfully and deliberately ignored the order of the court. Although the chancellor made proper findings in all matters with respect to Cathy's removal of the children from the jurisdiction of the Chancery Court of Madison County under the terms of the joint custody order, the chancellor erred in holding her in contempt. Contempt is not the proper action against a party for removing the child or children from the state and incarceration would be a severe punishment for an order that did not make the removal a violation. However, that matter is now moot and does not warrant reversal.


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