IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2021-CA-00006-COA
BRITTANY L. KREPPNER APPELLANT
v.
WILLIAM D. KREPPNER APPELLEE
DATE OF JUDGMENT: 02/20/2020 TRIAL JUDGE: HON. CARTER O. BISE COURT FROM WHICH APPEALED: STONE COUNTY CHANCERY COURT ATTORNEY FOR APPELLANT: WILLIAM W. DREHER JR. ATTORNEY FOR APPELLEE: HERBERT J. STELLY NATURE OF THE CASE: CIVIL - DOMESTIC RELATIONS DISPOSITION: AFFIRMED - 03/22/2022 MOTION FOR REHEARING FILED: MANDATE ISSUED:
BEFORE BARNES, C.J., McCARTY AND SMITH, JJ.
McCARTY, J., FOR THE COURT:
¶1. Just a few months after agreeing to a custody order that severely limited her visitation
with her daughter, a mother sought modification of the terms. Finding she had not met her
burden of proving a material change in circumstances, the chancery court denied the motion.
As this decision was within the chancery court’s discretion, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2. For the past seven years since her parents’ agreed custody order, nine-year-old Katie
has lived almost exclusively with her father.1 While William and Brittany Kreppner share
1 We will refer to the parties’ daughter by a pseudonym, as this Court may decline to identify minor children by name. legal custody of their daughter, the father has what is in effect sole physical custody.
¶3. The Kreppners’ divorce was a contentious one, with both parties initially filing on
fault-based grounds. But ultimately the couple was granted a divorce based on irreconcilable
differences. The parents’ agreed custody order provided William would have physical
custody.
¶4. Under the agreed terms, Brittany had extremely restricted visitation with her daughter,
seeing her every other weekend. Notably, even this limited visitation was required to be
supervised. And as the non-custodial parent, Brittany agreed to pay $200 per month in child
support.
¶5. Seven months after the divorce, Brittany petitioned the court for modification of
custody. Many of Brittany’s concerns were related to William’s new wife, Bridget.2 For
instance, Brittany claimed that William allowed Katie’s new stepmother “to interfere with
such love and affection of the child for the Mother” and that Bridget “has shown nothing but
scorn and hate” for Brittany. She further contended that William and Bridget “refuse[d] to
allow the minor child any telephone contact” with her mother and are using Katie as “a pawn
and an instrument to harm” Brittany.
¶6. The mother’s motion also included a request for the court to find her ex-husband in
contempt. She provided a list of ways William refused to comply with his duties as custodial
parent. For example, she alleged William “capriciously and arbitrarily refuse[d] to share in
2 The final judgment of divorce was entered in early 2016, and both William and Brittany remarried that summer. William married Bridget, and Brittany married Stephen Eaton.
2 the decision-making rights, the responsibilities and the authority relating to the health,
education and welfare” of their daughter. Brittany further claimed William does not allow
her “to attend any appointment or function involving the minor child” or allow her to access
Katie’s school or medical records.
¶7. In concluding her motion, Brittany requested “paramount physical care[,] custody[,]
and control of the minor child with the Father having visitation with certain restrictions.”
She claimed “there has been a material and substantial change in circumstances to the
detriment of the minor child” that warrants a change in custody. The mother pointed out that
William’s job “keeps him away from the minor child for long periods of time” and therefore
Katie is “being kept by her step-mother who has shown nothing but scorn and hate for”
Brittany.
¶8. Brittany alleged a change in custody was warranted because the “attitude and actions
displayed by the Father and step-mother are intentional, confusing[,] and detrimental to the
minor child’s health, safety and welfare.” As an alternative to modification, Brittany
requested additional visitation without supervision, claiming “any reason for continued
supervised visitation has long disappeared.”
¶9. Following Brittany’s modification request, the parents signed an agreed temporary
order allowing her additional visitation without supervision. The order also required the
parties to attend a co-parenting class and enjoined them from drinking or smoking in Katie’s
presence. With the exception of these alterations, the original custody agreement remained
“in full force and effect.”
3 ¶10. Within a year of signing this agreed order, the mother again sought modification. Her
renewed motion mirrored the first motion for modification in asserting that William’s
marriage to Bridget—and the resulting issues from the stepmother’s presence—constituted
a material change in circumstances detrimental to the child. Specifically, she reiterated her
claim that William and Bridget interfere with the child’s relationship with Brittany, and that
the father and stepmother use the child “as a weapon to punish” her. She further alleged that
William and Bridget “have entered into a deliberate plan to alienate the minor child from her
mother.” Brittany again concluded her motion by requesting “paramount physical care[,]
custody[,] and control” of Katie.
¶11. The mother also renewed her motion for contempt, raising many of the concerns
outlined in her first motion—namely that William “refuses to share in the decision-making
rights” concerning the child’s health and education. In responding to Brittany’s request for
modification, William counterclaimed for contempt and modification. He asked that some
of Brittany’s visitation be limited and her child support be increased.
¶12. The chancellor appointed a guardian ad litem, Kelly M. Rayburn. He also appointed
Dr. Jule P. Miller to perform a forensic interview with the child and her family. Over the
next year, these specialists gathered information regarding Katie’s well-being and
relationship with her parents, and produced reports of their findings.
¶13. Dr. Miller met with Katie and her family on several occasions. First, he interviewed
the child and her mother together, then the child and her father. He noted the child has a
“reasonable attachment to her mother,” and likewise a “good attachment to her father and
4 stepmother.” He also observed Katie has a close relationship with both of her brothers and
“is influenced by whomever she is around.”3 The specialist conducted two different forensic
tests during the various visits with Katie, which revealed she “is suffering from significant
anxiety, sadness, and anger that she is trying to keep unconscious through the coping
mechanisms of denial and avoidance.”
¶14. Dr. Miller sat down with Brittany and William together to discuss the parents’
concerns about Katie and their relationship with each other. He also met with all four of the
parents at once. In this session, the doctor noted that the stepmother was “filled with rage
and seemed unable to get past it,” which he thought was “concerning for future coparenting.”
Dr. Miller opined that the child’s “attachment to her mother is interfered with by the conflict”
between her mother and stepmother.
¶15. Overall, Dr. Miller concluded the child “comes across very well on the surface” and
that she “is pleasant, attractive . . . and is clearly bonded well with both mother and father.”
However, he opined that “just beneath that surface she is struggling with feelings of sadness,
anger, and anxiety.” He ended his report with the following opinion: “[A]fter meeting her
stepmother, and experiencing first-hand how inflexible she was regarding [Katie’s] mother,
I believe that the only way [the] family will coparent is if her mother gets primary custody.
It is essential that the adults learn to work together with less conflict.”
¶16. Guardian ad litem Kelly Rayburn also met with Katie and each of her parents. In
addition, he interviewed and collected affidavits from people who knew and interacted with
3 Brittany’s husband Steve has a son who is two years older than Katie, and William and Bridget have a child younger than her.
5 the families. Following his investigation, Rayburn expressed “serious concerns regarding
parental alienation, particularly in light of Dr. Miller’s observations . . . .” Rayburn relied
heavily on Dr. Miller’s report in forming his opinion, noting the findings give him
“considerable pause” in leaving the custodial arrangement unchanged.
¶17. At the same time, though, Rayburn observed that “the child is healthy and happy in
[William’s] home and that she is doing well in school.” He wrote in his report, “As a
layperson, my observations of the child suggest that she has adapted to living with her father
and having visitation with her mother.”
¶18. Ultimately, while the guardian ad litem believed there was a “material change in
circumstances that is detrimental or harmful to the child,” he declined to give a
recommendation regarding custody, explaining that “the Court is the ultimate determiner of
whether a custodial change should take place.”
¶19. The Stone County Chancery Court held a two-day hearing on Brittany’s motion for
contempt and modification. At the outset the parties agreed to enter into evidence the reports
from Kelly Rayburn, Dr. Jule Miller, and Dr. Kevin Passer.4
¶20. The guardian ad litem took the stand first, explaining his investigation and the
findings of his report. Rayburn’s testimony largely followed his report. When asked,
Rayburn acknowledged an unsubstantiated allegation by the mother that Bridget had slapped
Katie, as well as another unsubstantiated claim that a family member had acted in an
inappropriate manner toward the child. The guardian ad litem quickly rejected these claims
4 Dr. Passer, who William hired to evaluate Katie, did not testify at the hearing, and his report is not included in the record on appeal.
6 and confirmed that to his knowledge there had been no abuse or neglect.
¶21. Another witness, a CPS worker who had investigated the family and visited William’s
and Bridget’s home, testified that Katie “didn’t show any signs of neglect” or “any signs of
being fearful” of her father or stepmother “at all.”
¶22. As Katie’s therapist, Stephen Midgette provided testimony about his interactions with
Katie and her family. Based on his sessions with the child for over the past year, Midgette
said he does not believe there has been “any alienating effect” on Katie. He also observed
that the child related just as well to her mother as her father.
¶23. In her testimony, Brittany reiterated and further explained her complaints about
William and his new wife—primarily Bridget’s hostility toward her and interference with her
relationship with Katie. She expressed particular concern the stepmother forced the child to
call her “Mom” in an attempt to convince the little girl that Brittany was no longer her
mother. However, Katie’s therapist testified that she “has always insisted to me that she has
never called her stepmother mom, that she always calls her Bridget.”
¶24. Brittany also claimed that on occasion Katie would return from her time at her father’s
house with the same dirty clothing she had left in the previous week. Yet when asked by
counsel for William, “[y]ou’re not telling this court that she’s in any way being abused . . .
[o]r that she’s being neglected?” Brittany clarified, “No, sir.” The attorney continued,
“Basically what you, your former husband, and the two stepparents, Steve and Bridget, have
is a total breakdown in communication, correct? . . . That’s the point. Y’all can’t
communicate?” The mother responded, “Correct.”
7 ¶25. To support her contention that William did not allow her to communicate with her
daughter, Brittany presented a log of the times she tried to speak with Katie over the phone
but the father either refused or did not answer her calls.
¶26. In his testimony, William reflected on the past four years as Katie’s primary care-
giver. He confirmed Katie refers to her stepmother as “Bridget,” not “mom.” The father
explicitly denied his ex-wife’s allegation that he returned their daughter wearing dirty
clothes, stating, “That never happened.”
¶27. Katie’s stepmother, Bridget, detailed some of the ways she has cared for the child
since she entered her life at age two. When asked whether transferring custody to Brittany
would be in the child’s best interest, the stepmother said, “No, sir,” and explained Katie is
“in a good stable home now” and “is [doing] very good in school.”
¶28. After considering all the evidence—including pleadings, testimony, and reports from
Dr. Miller and the guardian ad litem—the court ultimately denied Brittany’s request for
contempt and modification. The chancellor explained that a change in custody was not
warranted because the mother “failed to meet the burden required of her of a substantial
change in circumstances which adversely affects the minor child . . . .”
¶29. Although the court denied Brittany’s request for modification and contempt, it did
order William to “notify Brittany, by text, one (1) day prior to any doctor’s appointments for
the minor child” and to tell Brittany about “all non-school events within twenty four (24)
hours of having received notice of such events.” Further, the court ordered the father “not
to take any action to prevent the Plaintiff, Brittany, from attending any extracurricular
8 activities or events.”
¶30. Brittany filed a motion to reconsider, which was denied. She now appeals, raising two
assignments of error.
STANDARD OF REVIEW
¶31. Our standard of review in child-custody cases is limited. Gateley v. Gateley, 158 So.
3d 296, 300 (¶19) (Miss. 2015). “[W]e must affirm the chancellor’s findings of fact if they
are supported by substantial evidence unless the chancellor abused his discretion, was
manifestly wrong, [or] clearly erroneous[,] or [applied] an erroneous legal standard was
applied.” Id. (internal quotation marks omitted).
DISCUSSION
I. The mother failed to prove a material change that adversely affected the child.
¶32. Brittany argues that in considering her motion for custody modification the chancellor
“erred in failing to find a material and substantial change in circumstances detrimental to the
minor child.”
¶33. “Mississippi utilizes a three-prong test to determine whether custody modification is
warranted.” Hammons v. Hammons, 289 So. 3d 1214, 1218 (¶16) (Miss. Ct. App. 2020).
“First, there must be a material change in circumstances of the custodial parent.” Id. “The
burden of proving the material change in circumstances falls on the party seeking
modification.” Id. “The circumstances presented for consideration must have arisen after
the entry of the first custody order.” Id. We have emphasized that “[t]he purpose of
modification is not to allow a second bite at the apple by relitigating the same facts.” Id.
9 ¶34. To satisfy the second prong of the test, “the moving party must show that the change
in circumstances has an adverse effect on the minor child.” Id. at (¶17). “Any change in
custody must be predicated on the conduct of the custodial parent that poses a danger to the
mental or emotional health of the child.” Id. (quoting Williams v. Willis, 49 So. 3d 122, 124
(¶7) (Miss. Ct. App. 2010)).
¶35. Finally, “[m]odification must be in the best interest of the minor child.” Id. at (¶18).
This “polestar consideration” of the child’s best interest “is based on an application of the
Albright factors to the facts of the case.” Id. at 1218-19 (¶18).
¶36. In seeking modification, Brittany primarily cites William’s remarriage to Bridget as
the material change that has adversely affected their daughter. Specifically, she claims that
Bridget is the “main cause of the conflict between the parties” and that her “animosity”
toward and “hatred” for Brittany is causing Katie to suffer.
¶37. However, our Supreme Court has steadfastly held that “remarriage itself does not
constitute a material change in circumstances that would justify a change of custody.” Dykes
v. McMurry, 938 So. 2d 330, 336 (¶22) (Miss. Ct. App. 2006) (quoting Robison v. Lanford,
841 So. 2d 1119, 1123 (¶14) (Miss. 2003)). In Dykes, a non-custodial father filed for
modification, arguing the mother’s remarriage constituted a material change that adversely
affected the child. Id. at 332 (¶3). The chancellor denied the motion, stating that the child
had not suffered any “detrimental” treatment at his mother’s home, and that the law “requires
more than occasional unhappiness in a child to justify a contested change of custody.” Id.
at 332, 336 (¶¶5, 21). We affirmed the chancellor’s decision, as the evidence showed the
10 child was “healthy and well-adjusted in his mother’s home” and that he “suffered no abuse”
and “never felt threatened at his mother’s house.” Id. at 336 (¶22).
¶38. Consistent with Dykes, our precedent indicates that remarriage may constitute a
material change only in extreme situations, such as physical or mental abuse by the
stepparent. See Savell v. Morrison, 929 So. 2d 414, 419 (¶17) (Miss. Ct. App. 2006) (where
stepfather “threatened [the child] with physical punishment, had desires to ‘pepper’ her with
paintballs and bind her to a chair with duct tape,” and “admitted willingness to go to jail if
he ‘snapped’”); see also Summerlin v. Eldridge, 145 So. 3d 1261, 1264 (¶¶12-13) (Miss. Ct.
App. 2014) (where stepfather “had a temper and verbally attacked everyone living in the
house” and behaved in a way that caused the mother to “worr[y] about the safety of her
children”).
¶39. In this case, evidence indicates the stepmother does not present a physical or mental
danger to Katie. Like the child in Dykes, Katie appears to be healthy and relatively well-
adjusted to her environment. Indeed, the guardian ad litem noted in his report that William
believes “the child is healthy and happy in his home and that she is doing well in school.”
Likewise, Dr. Miller noted the child appears to have a “good attachment to her father and
stepmother.” Furthermore, none of Bridget’s alleged hostility toward Brittany is directed at
Katie. In fact, the stepmother’s testimony indicates she has a close, positive relationship with
the child. And while Brittany points to the anxiety and sadness observed by Dr. Miller, it
takes “more than occasional unhappiness in a child” to warrant modification. Dykes, 938 So.
2d at 332 (¶21).
11 ¶40. Given the evidence supporting the chancellor’s decision, as well as our precedent
regarding the effect of a custodial parent’s remarriage, we will not hold the trial court in error
for finding no material change in circumstances adversely affecting the child.
¶41. Brittany also protests that William does not include her in important parental decisions
such as medical appointments and school and extracurricular events. She further complains
he often forbids her from communicating with Katie by telephone and that Bridget
contributes to this problem.
¶42. Yet the trial court explicitly addressed these particular concerns in its order. While
denying Brittany’s request for contempt, the court ordered William to notify her of Katie’s
doctor’s appointments and extracurricular activities. The court further ordered the father
“not to take any action to prevent [the mother] from attending” these events.
¶43. Even if the trial court had not granted Brittany that relief, we have held that “parties’
inability to cooperate with one another” is not a sufficient reason to modify custody. Lipsey
v. Lipsey, 755 So. 2d 564, 566 (¶7) (Miss. Ct. App. 2000). “This Court does not find lack
of cooperation to be a pinnacle that warrants a reconsideration of custody . . . .” Id. at 567
(¶9). Furthermore, we have specified that a custodial parent’s interference with visitation is
an issue of contempt rather than modification. See Mixon v. Sharp, 853 So. 2d 834, 838
(¶10) (Miss. Ct. App. 2003) (“Changing child custody is not appropriate punishment for
contempt.”); see also Deborah H. Bell, Bell on Mississippi Family Law § 12.12.3[h] (3d ed.
2020) (“Minor or isolated instances of lack of cooperation in visitation should be addressed
in contempt proceedings rather than through modification”).
12 ¶44. The majority of Brittany’s arguments for modification pertain to William’s remarriage
to and Brittany’s contentious relationship with Bridget, the stepmother. In light of the above
precedent regarding remarriage and parental interference, as well as the testimony and
evidence presented, the trial court was within its discretion to decline to find a material
change in circumstances.
¶45. Significantly, there is little indication that the issues Brittany raises have adversely
affected Katie. Reports from Dr. Miller and the guardian ad litem, as well as testimony from
William, Bridget, and Katie’s therapist, establish the child is healthy and well-adjusted to life
in her father’s home. This evidence supports the chancellor’s finding there was no material
or adverse change to warrant modification.
¶46. Because Brittany did not prove a material change in circumstances that adversely
affected her daughter, we need not reach an application of Albright here. The chancellor was
correct in denying the mother’s request for modification based on her failure to meet this
burden.
II. The Riley test does not apply.
¶47. In the alternative, Brittany argues the chancellor “committed manifest error in
ignoring the adverse environment test used in determining custody.”
¶48. In lieu of the traditional test for modification, courts may on rare occasions apply the
“adverse environment” test, which our Supreme Court established in Riley v. Doerner, 677
So. 2d 740, 745 (Miss. 1996). There, the Court provided a way for trial courts to make a
best-interest determination even where there has not been a material change in circumstances
13 that adversely affects the child. Id. at 744. The Riley Court held that “when the environment
provided by the custodial parent is found to be adverse to the child’s best interest, and that
the circumstances of the non-custodial parent have changed such that he or she is able to
provide an environment more suitable than that of the custodial parent, the chancellor may
modify custody accordingly.” Id. (emphasis in original).
¶49. This alternate test “applies only when a child is living in genuinely adverse
circumstances.” Deborah H. Bell, Bell on Mississippi Family Law §12.12[4] (3d ed. 2020)
(emphasis added). Indeed, we have stated that this “standard should only be applied when
the child’s health and welfare are truly at risk[.]” Savell v. Morrison, 929 So. 2d 414, 419
(¶14) (Miss. Ct. App. 2006).
¶50. For example, in Riley the Court affirmed the chancellor’s transfer of custody to the
father where the mother’s home was “the site of illegal drug use” and “a succession of live-in
boyfriends,” and where the chancellor had determined there was “absolutely no question that
. . . it would be in the best interest of this child to live with her father.” Riley, 677 So. 2d at
743-44; see also Carter v. Carter, 735 So. 2d 1109, 1113 (¶11) (Miss. Ct. App. 1999)
(affirming a chancellor’s transfer of custody to the father based on an application of the Riley
test where the evidence showed the children were sent to school “in an unclean and unkempt
condition,” had “noticeable body odors,” and were not “appropriately dressed . . . to protect
them from inclement weather” and where the mother admitted to a “lack of sufficient
resources [that] caused her to have to wash clothing in the bathtub”); see also Hoggatt v.
Hoggatt, 796 So. 2d 273, 274 (¶3) (Miss. Ct. App. 2001) (finding the Riley test was
14 applicable where the mother exhibited a “lack of supervision that caused the child to
repeatedly place himself in situations where he could easily have been subjected to
substantial physical harm, and a blatant lack of concern over the child’s medical well-being
as evidenced by the mother’s failure to act on the child’s severe dental problems”).
¶51. As the trial court correctly concluded, the situation before us does not “rise[] to the
level that would warrant a change in custody as contemplated by Riley or its progeny.” We
therefore affirm the chancellor’s denial of the request for modification on this ground.
CONCLUSION
¶52. Brittany filed for modification seven months after agreeing to a custody order upon
divorce. Within a year of signing another agreed order, she again filed for modification.
After much consideration, the chancellor determined modification of custody was not
warranted. The decision to deny Brittany’s motion for modification was well within the
chancellor’s discretion; therefore, the judgment of the Stone County Chancery Court is
AFFIRMED.
BARNES, C.J., CARLTON AND WILSON, P.JJ., GREENLEE, WESTBROOKS, LAWRENCE, SMITH AND EMFINGER, JJ., CONCUR. McDONALD, J., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION.