Beasley v. Beasley

913 So. 2d 358, 2005 WL 894839
CourtCourt of Appeals of Mississippi
DecidedApril 19, 2005
Docket2002-CA-02086-COA
StatusPublished
Cited by4 cases

This text of 913 So. 2d 358 (Beasley v. Beasley) is published on Counsel Stack Legal Research, covering Court of Appeals of Mississippi primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Beasley v. Beasley, 913 So. 2d 358, 2005 WL 894839 (Mich. Ct. App. 2005).

Opinion

913 So.2d 358 (2005)

Ricky Dewayne BEASLEY, Appellant,
v.
Andrea Annette BEASLEY, Appellee.

No. 2002-CA-02086-COA.

Court of Appeals of Mississippi.

April 19, 2005.

Jak M. Smith, Tupelo, attorney for appellant.

*359 Rhett R. Russell, Tupelo, attorney for appellee.

Before BRIDGES, P.J., MYERS and BARNES, JJ.

BARNES, J., for the Court.

¶ 1. This appeal has been brought by the father of two minor children aggrieved that physical custody of his two children was modified by the Chancery Court of Lee County. There being no material change in circumstance in the custodial home or a finding that the actual custodial arrangement was detrimental to the well-being of the children as required in order to modify a custody decree, we reverse and render.

FACTUAL AND PROCEDURAL BACKGROUND

¶ 2. Ricky Dewayne Beasley (Ricky) and Andrea Annette Beasley (Andrea) were married on August 3, 1990, in Lee County, Mississippi. Ricky and Andrea had two children, Cameron Dewayne Beasley (Cameron), born June 16, 1993, and Katherine Camille Beasley (Camille), born September 11, 1995. Ricky and Andrea lived together, with their two children, in Lee County, Mississippi, until they separated in February of 1998 and filed for divorce on the ground of irreconcilable differences. The agreed-upon property settlement, submitted to the trial court in February of 1998, stated that Ricky and Andrea would have joint legal custody and Ricky would have full physical custody and control of Cameron and Camille. Andrea was given reasonable visitation as detailed in the agreement; the agreement further provided for Andrea to have visitation "[a]ny other times as agreed upon by the parties." The final divorce decree, dated April 28, 1998, awarded primary custody of the children to Ricky. At that time, Cameron and Camille were aged four and two, respectively.

¶ 3. For a period of time, the couple mutually agreed to allow Andrea visitation far more than the decree required. Up to August of 2001, the couple split their time with the children, each having the children two week nights and every other weekend. However, in August of 2001, Andrea moved from the town of Shannon to Saltillo, approximately twenty miles from Ricky's home. At that point, Ricky stopped agreeing to the liberal visitation and demanded that the parties abide by the final divorce decree. Even after she moved to Saltillo, Andrea enjoyed more visitation than was called for in the decree. The children were allowed to spend Sunday nights with Andrea on her weekends, and Andrea was able to pick the children up from school on Mondays and stay with them until Ricky got off work.

¶ 4. When Andrea tried to enroll the children in the Saltillo school district, she was told the school district required a court order providing that she had actual physical custody of the children before they could be enrolled. On August 1, 2001, Andrea filed her complaint for modification of the final decree, alleging there to have been a substantial and material change in circumstances since the entry of the final decree. She did not, however, identify that change in circumstance. A hearing was held in open court in the spring of 2002, at which both parties were present and represented by counsel. On May 29, 2002, Chancellor Mask issued an interim order, holding that Andrea had met her burden of proving a substantial and material change in circumstances and awarded her immediate custody. The chancellor did not, however, identify the change in circumstance. The decree of modification, issued on August 2, 2002, recited that the court "is of the opinion that *360 there has been a substantial and material change in circumstances that adversely affects the best interest of the children since the entry of the divorce decree," and ordered that primary care, custody and control of the two minor children be awarded to Andrea.[1] Again, the chancellor failed to identify the change in circumstance which justified modification of child custody. The chancellor, however, "reserve[d] making findings of fact and conclusions of law should either side elect to appeal."

¶ 5. On August 6, 2002, Ricky filed a motion to alter or amend judgment and for reconsideration based on Andrea's failure to prove that there had been a substantial and material change in circumstances. Ricky contemporaneously filed a motion for findings of fact and conclusions of law. In response, the court issued a memorandum opinion and an order denying the motion for reconsideration on November 14, 2002. In the memorandum opinion, the chancellor went through an analysis of the Albright[2] factors to determine that there had been a material and substantial change in circumstances that adversely affected the children and that it would be in the best interests of the children for Andrea to be awarded primary custody. The only negative circumstances identified by the court were that Cameron failed the second grade and had difficulties keeping up with his class even after he repeated the grade and that Cameron and Camille began having behavior problems in August 2001 and January 2002, respectively. The court noted that Cameron's behavior problems began "after Ricky took over his full time care in August 2001," thereby implying that Ricky might be responsible. Later, the court recognized that Cameron's behavior problems "[c]oincid[ed] with Andrea's move to Saltillo." Finally, the court found that "the relationship that the children have with Andrea is obviously very important to them, and the disruption of Andrea's custody since August 2001 has affected the children and seems to have caused behavior difficulties in both Cameron and Camille." Ricky timely filed his notice of appeal to this Court.

STANDARD OF REVIEW

¶ 6. The standard of review employed by this Court in domestic relations cases is well established and abundantly clear. Child custody matters are within the sound discretion of the chancellor. Sturgis v. Sturgis, 792 So.2d 1020, 1023(¶ 12) (Miss.Ct.App.2001). The standard of review employed in domestic relations cases is limited to the substantial evidence/manifest error rule. Mosley v. Atterberry, 819 So.2d 1268, 1272(¶ 16) (Miss.2002). This Court will not disturb the chancellor's findings unless the trial court was manifestly wrong, clearly erroneous, or applied an erroneous legal standard. Cooper v. Ingram, 814 So.2d 166, 167(¶ 2) (Miss.Ct.App. 2002).

ANALYSIS

¶ 7. In order for child custody to be modified, the non-custodial party must prove: "(1) that a substantial change in circumstances has transpired since issuance of the custody decree; (2) that this change adversely affects the child's welfare; and (3) that the child's best interests mandate a change of custody." Mabus v. Mabus, 847 So.2d 815, 818(¶ 8) (Miss.2003) (citing Bubac v. Boston, 600 So.2d 951, 955 (Miss.1992)). As to the first factor, "[t]he burden of proof is on the movant to show by a preponderance of the evidence that a material change in circumstances has occurred *361 in the custodial home." Mabus, 847 So.2d at 818(¶ 8) (citing Riley v. Doerner, 677 So.2d 740, 743 (Miss.1996)) (emphasis added); see also Johnson v. Gray, 859 So.2d 1006, 1014(¶ 37) (Miss.2003) (quoting Mabus); Hoggatt v. Hoggatt, 796 So.2d 273, 273-74(¶ 2) (Miss.Ct.App.2001) ("traditional requirement that a change of custody must be based on proof of a change in circumstance in the situation of the custodial parent detrimental to the child's interest").

¶ 8.

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Bluebook (online)
913 So. 2d 358, 2005 WL 894839, Counsel Stack Legal Research, https://law.counselstack.com/opinion/beasley-v-beasley-missctapp-2005.