Mixon v. Sharp
| Docket Number: | 2002-CA-01141-COA | |
| Court of Appeals: |
Opinion Link Opinion Date: 08-12-2003 Opinion Author: Myers, J. Holding: AFFIRMED IN PART; REVERSED AND RENDERED IN PART |
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| Additional Case Information: |
Topic: Modification of child custody - Material change in circumstances - Albright factors - Attorney’s fees Judge(s) Concurring: McMillin, C.J., King and Southwick, P.JJ., Bridges, Thomas, Lee, Irving, Chandler and Griffis, JJ. Procedural History: Bench Trial Nature of the Case: CIVIL - CUSTODY |
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| Trial Court: |
Date of Trial Judgment: 05-29-2002 Appealed from: Clarke County Chancery Court Judge: Sarah P. Springer Disposition: FATHER’S MOTION TO MODIFY AND FOR CONTEMPT DISMISSED. MOTHER AWARDED EXCLUSIVE CARE, CUSTODY AND CONTROL OF MINOR CHILD. VISITATION AND CHILD SUPPORT ORDERED. ATTORNEY’S FEES AWARDED TO MOTHER. Case Number: A-3901-S |
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| Party Name: | Attorney Name: | |||
| Appellant: | Kevin Conrad Mixon |
EARL P. JORDAN |
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| Appellee: | Ida Beatrice Mixon Sharp | PRO SE |
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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 - Albright factors - Attorney’s fees |
| Summary of the Facts: | Beatrice Mixon Sharp filed a petition for modification of custody which the court granted. Sharp=s ex-husband, Kevin Mixon, appeals. |
| Summary of Opinion Analysis: | Issue 1: Material change in circumstances A change in child custody requires the court to find there has been a material change in circumstances which would suggest that a change of custody is in the best interest of the child. The chancellor found the following to constitute a material change of circumstances which adversely affects the couple’s child: Mixon’s alleged interference with Sharp’s visitation, Mixon’s work schedule, and problems between the child and her step-siblings. Changing child custody is not appropriate punishment for contempt. If the chancellor found Mixon has purposely refused to allow Sharp to visit the child, the chancellor should have incarcerated Mixon. With regard to a change in work schedule, as long as the child is safe and supervised while the parent must be at work, a change in a work schedule is not a material change in circumstances. Problems between step-siblings are common in families and are best solved as an internal matter within the family. Therefore, the court erred in finding these factors to constitute a material change in circumstances. Issue 2: Albright factors Mixon argues that the court erred in failing to weigh the Albright factors on the record. These factors include the health and sex of the child; a determination of the parent that has had the continuity of care prior to the separation; which parent has the best parenting skills and the willingness and capacity to provide primary child care; the employment of the parent; physical and mental health and age of the parents; emotional ties of parent and child; moral fitness of parents; the home, school and community record of the child; the preference of the child at the age sufficient to express a preference by law; stability of home environment; and other relevant factors. The factors favoring Mixon include continuity of care, parenting skills, moral fitness, and stability of home environment while most of the remaining factors are neutral. Given this, the chancellor’s analysis of the Albright factors is clearly erroneous. Issue 3: Attorney’s fees Mixon argues that the court erred in awarding attorney’s fees in a modification proceeding. However, this was not just a modification action, but was also an action seeking a finding of contempt. A chancellor may award attorney's fees as the result of a contempt action. Although the chancellor did not specifically find Mixon in contempt, she did find that Mixon interfered with the court’s previous custody order by denying visitation between the child and Sharp. Therefore, the award is affirmed. |
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