Bryant v. Bryant

105 So. 3d 1146, 2012 WL 6118215, 2012 Miss. App. LEXIS 805
Court of Appeals of Mississippi·Decided December 11, 2012·No. No. 2011-CA-00669-COA·Published·Cited by 3 cases

Opinion

RUSSELL, J.,

for the Court:

¶ 1. This is an appeal from the Chancery Court of Lawrence County, Mississippi, where James David Bryant Jr. (David) sought a modification of child custody. David was granted temporary physical custody of the two minor children. David claims the chancellor erred in finding no material change in circumstances adverse to the health and well-being of the minor children; and, abused his discretion by failing to make proper findings of fact and conclusions of law on the record. Finding error, we reverse and remand.

[1148] FACTS AND PROCEDURAL HISTORY

¶ 2. David and Pamela Rena Smith Bryant (Rena) were married on November 25,1995. During the marriage, the parties had two boys. One is now age thirteen, and one is now age eight. Rena filed for divorce on November 17, 2007. David filed a motion for recusal on December 4, 2007. David and Rena were granted a divorce on the ground of irreconcilable differences in Lawrence County, Mississippi, on January 12, 2009.

¶ 3. Under the divorce decree, David and Rena agreed to joint physical and legal custody of their two minor children, with physical custody to alternate from week to week. David was ordered to pay Rena $400 per month in child support. After the divorce, Rena moved in with her uncle in Monticello, Mississippi. Months later, after the weekly exchange became burdensome, both parties agreed the minor children should reside primarily with Rena at her uncle’s home, with David having visitation with the children on alternating weekends and holidays. David’s monthly child-support payments increased to $500. An agreed order to that effect was entered on July 8, 2009.

¶ 4. Prior to the divorce, on October 10, 2008, Rena pled guilty to the charges of conspiracy and uttering forgery in the Circuit Court of Lincoln County, Mississippi. Rena was placed on non-adjudicated probation for three years in the custody of the Mississippi Department of Corrections. Because of her prior history of illegal drug use,1 Rena was subject to random drug testing during her probation period at the request of her probation officer.

¶ 5. On January 13, 2011, during a random drug test, Rena tested positive for cocaine and opiates. David subsequently filed a petition for a modification of custody on January 18, 2011. David alleged in his petition for custody modification a material change in circumstances based on Rena’s failed drug test and her multiple one-car accidents within the two years before the filing of the modification petition. David filed a second motion to recuse on April 1, 2011.

¶ 6. Rena was admitted into a drug rehabilitation program2 at New Life for Women Center (New Life) in Jackson, Mississippi, on February 7, 2011, as a result of the failed drug test. The children moved in with Rena’s parents in Monticello, Mississippi, while Rena was in the resident rehabilitation program. Rena was scheduled to be released in June 2011. During the program, Rena remained under twenty-four-hour staff supervision, with weekends off, which she spent with the children at her parents’ home.

¶ 7. A trial on David’s petition was held on April 14, 2011. At the beginning of trial, David again requested that the chancellor recuse himself for multiple reasons, including: the chancellor was the next-door neighbor of David and Rena prior to their divorce; the chancellor was close friends with Rena’s father; and the chancellor had previously been consulted as counsel by Rena regarding a possible divorce from David.3 Denying the request, the chancellor stated that he had no preconceived notions about either party, and [1149] would remain impartial in spite of the connection he had with the parties.

¶ 8. The chancellor ordered a bifurcated trial, with the first portion to determine whether or not a material change in circumstances adverse to the health and well-being of the children had occurred. The chancellor declared he would only proceed to an Albright hearing after the testimony had been heard and a ruling had been made concerning a material change in circumstance.

¶ 9. During trial, Rena admitted to using opiates and cocaine on January 12, 2011, the day before she tested positive for the drugs. Rena also testified that prior to January 12, 2011, she had remained clean since 2006, before she was convicted and placed on probation.

¶ 10. During cross-examination, Rena admitted to having three one-car wrecks since the July 8, 2009 custody decree. In two of the wrecks, Rena completely totaled her car. In the third wreck, Rena ran her car through a fenced yard, crashing into a child’s trampoline.

¶ 11. One of the parties’ children testified that since Rena had been in rehab, he was having difficulty in school. Testimony from the child also showed that Rena’s absence affected the children emotionally. When questioned about his mother being in rehab, the child stated he would sometimes cry because he would worry about his mother so much. He also stated that he would worry about where he and his brother would live. Evidence also revealed that an adverse effect on the children in the custodial home had occurred even before Rena was admitted to rehab. According to the child’s testimony, when they were living with Rena’s uncle in Monticello, after Rena lost her job,4 the children would sometimes wake up in the middle of the night looking for their mother, who would not be home. The child also stated that his younger brother would wake up crying in the middle of the night whenever he was sick, and their mother would not be home. According to the child, after he and his brother went to sleep, Rena would leave the house late at night.

¶ 12. At the close of trial, the chancellor ruled that based on the testimony and evidence presented, no material change in circumstances adverse to the interests of the children had occurred that would warrant a change in custody. Determining that no material change had occurred, the chancellor did not proceed to an Albright analysis. The chancellor’s order on April 14, 2011, provided that the July 8, 2009 custody decree was still in place, but David was to have temporary physical custody of the children until Rena was released from New Life. From this ruling, David now appeals.

STANDARD OF REVIEW

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Bryant v. Bryant, 105 So. 3d 1146, 2012 WL 6118215, 2012 Miss. App. LEXIS 805 (Mich. Ct. App. 2012).

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