Betts v. Massey

40 So. 3d 602, 2009 Miss. App. LEXIS 944, 2009 WL 4808145
CourtCourt of Appeals of Mississippi
DecidedDecember 15, 2009
Docket2008-CA-01253-COA
StatusPublished
Cited by1 cases

This text of 40 So. 3d 602 (Betts v. Massey) 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
Betts v. Massey, 40 So. 3d 602, 2009 Miss. App. LEXIS 944, 2009 WL 4808145 (Mich. Ct. App. 2009).

Opinions

CARLTON, J., for the Court.

¶ 1. Melissa Ann Betts and Chalmus Barry Massey are the parents of Benjamin Lee Massey (Ben), a minor, born outside of wedlock on April 8, 2004. On April 3, 2008, alleging that Barry had violated a December 2005 agreed judgment of paternity and order for child support, Melissa filed a complaint in the Neshoba County Chancery Court, wherein she requested that: (1) that Barry be held in contempt for failing to return Ben, (2) a judgment for the amount that Barry was in arrear-age for child support, (3) primary custody of Ben, and (4) reasonable attorney’s fees. Barry filed an answer and counter-complaint for custody and child support. Following a hearing, the chancery court awarded primary custody to Barry and visitation to Melissa. Feeling aggrieved, Melissa appeals and asserts that the chancellor erred in finding that a material change in circumstances had occurred and that the chancellor improperly analyzed the Albright factors.1

[604]*604¶ 2. We find substantial evidence in the record to support the chancellor’s finding that a material change in circumstances had occurred and that his analysis under Albright necessitated a change in custody.

FACTS

¶ 3. On December 9, 2005, approximately twenty months after Ben’s birth, Melissa and Barry entered into an “Agreed Judgment of Paternity and Order of Child Support and Other Relief.” The parties agreed to joint legal custody, and Melissa received primary physical custody. Barry received reasonable visitation and agreed to make monthly child support payments of $352. Approximately two months later, in February 2006, Melissa began working as a bartender on the night shift at a casino. Therefore, it became impossible for her to personally provide care for Ben at night. As a result, Ben often stayed with Barry and his wife, Natalia. The parties managed to work together to provide for Ben while Melissa worked, that is, until March 10, 2008, when bruises were discovered on Ben’s buttocks.

¶ 4. The record reflects that in the afternoon on Saturday, March 8, 2008, Natalia picked Ben up from Melissa, so Melissa could go to work.2 Ben remained in Natalia’s care for the remainder of the day and night. Then, at approximately 1:00 a.m., Natalia sent Melissa a text message informing her that Ben had awoken and would not go back to sleep. Because Natalia had to go to work later that morning, she asked Melissa to come and get Ben when her shift ended. Melissa arrived to pick Ben up at approximately 4:00 a.m. Ben remained in Melissa’s care until approximately 9:30 a.m. At that point, Melissa took him to visit Barry’s brother, Craig Massey, and Craig’s wife, Malia, at their house. Ben remained there until approximately 3:00 p.m., at which time Megan Howington, Ben’s babysitter, picked him up from Craig and Malia’s house and took him to Melissa’s house. That night, Melissa’s boyfriend, Jerry Bailey, noticed bruises on Ben’s buttocks when he took Ben to the bathroom. He immediately informed Melissa of his discovery. Melissa looked at the bruises but did not thoroughly examine Ben at that time. It was not until the following morning that Melissa, upon closer examination of the bruises, became alarmed and took Ben to visit his pediatrician, Dr. Melody Byram. Dr. Byram concluded that Ben had suffered moderate to severe bruising that had occurred within thirty-six hours of her examination.

¶ 5. Melissa allowed Ben to stay with Barry the following weekend. However, Barry failed to return Ben to her care as they had agreed. As a result, on March 20, 2008, Melissa filed a writ of habeas corpus in a separate action, Cause No.2008-148. Barry filed an answer and a motion for appointment of guardian ad litem. On March 27, 2008, the chancery court entered an order finding that the Mississippi Department of Human Services (DHS) should be immediately given temporary legal and physical custody of Ben. The chancery court ordered DHS: (1) to investigate the allegations of abuse, (2) to ensure that Ben was put in family placement while the matter was investigated, and (3) to arrange reasonable visitation for Melissa and Barry. The chancery court also ordered that any further matters concerning Ben, including any request for appointment of a guardian ad litem, be filed in Cause No. 2005-0323, the original action in which paternity, child support, [605]*605and custody were determined and adjudicated.

¶ 6. On April 3, 2008, Melissa filed the complaint referenced in the beginning of this opinion, and Barry filed an answer and counter-complaint, also referenced earlier in this opinion. Melissa averred that a material change in circumstances had occurred that had adversely affected Ben. In his answer, Barry agreed that a material change in circumstances had occurred.

¶ 7. On April 11, Barry filed a motion for temporary custody and for appointment of a guardian ad litem. On April 28, the parties entered into an agreed order appointing D. Joseph Kilgore as guardian ad litem. Ben remained in the care of DHS until April 11. He was then placed in the custody of Melissa’s mother, Nancy Kubin.

¶ 8. The case was heard in June 2008. At the hearing, Dr. Byram testified that her examination of Ben led her to conclude that Ben had been beaten with an object. She also testified that hand prints were clearly visible on Ben’s buttocks. According to Dr. Byram, the bruises were caused by “some sort of excessive squeezing-type injury.” Dr. Byram recalled that she had had trouble understanding Ben and had concluded that Ben does not communicate on the level of most three-year-olds. Dr. Byram stated that Ben did not respond when she asked him who had caused the bruises.

¶ 9. Judy Ward served as Ben’s foster mother while he was in the custody of DHS. She testified that Ben often asked for his father but never for his mother. She described Ben as “pitiful wanting his daddy.” Ward stated that, as a result, she contacted DHS and requested that Barry be allowed to call Ben every night. DHS granted her request. Ward testified that she did not make a similar request on Melissa’s behalf. Ward recalled that on at least one occasion Melissa called to check on Ben. Ward also stated that Melissa spoke with someone at DHS on a couple of occasions and asked how Ben was doing.

¶ 10. Carrie Cumberland, a social worker with DHS, testified that as part of their investigation, DHS conducted in-house monitoring at Melissa’s and Barry’s homes from March 10-25, 2008. While the investigation was ongoing, Barry and Melissa were allowed supervised visitation with Ben at DHS and were required to come to DHS to visit Ben, even after he was placed in Kubin’s care. DHS found both Barry’s and Melissa’s homes adequate. However, Cumberland testified that she recommended that Ben be placed in Barry’s primary care, mainly because of Ben’s desire to spend time with his father. She concluded that Barry, more so than Melissa, has Ben’s best interest at heart. Cumberland stated that “Melissa tends to just be upset with me and [does] not really think about what’s going on with Ben in certain issues.” Cumberland testified that DHS never established who inflicted the bruises upon Ben.

¶ 11. Megan testified that she began babysitting Ben when he was eighteen months old and that she lived with Melissa in 2007 from August to November. During this time, Megan kept Ben four or five nights a week while Melissa worked from 6:00 p.m. to 2:00 or 3:00 a.m. Megan testified that she never saw any bruising or unusual markings on Ben during the time that she kept him.

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Betts v. Massey
40 So. 3d 602 (Court of Appeals of Mississippi, 2009)

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Bluebook (online)
40 So. 3d 602, 2009 Miss. App. LEXIS 944, 2009 WL 4808145, Counsel Stack Legal Research, https://law.counselstack.com/opinion/betts-v-massey-missctapp-2009.