Davidson v. Coit

899 So. 2d 904, 2005 WL 225327
CourtCourt of Appeals of Mississippi
DecidedFebruary 1, 2005
Docket2002-CA-01570-COA
StatusPublished
Cited by9 cases

This text of 899 So. 2d 904 (Davidson v. Coit) 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
Davidson v. Coit, 899 So. 2d 904, 2005 WL 225327 (Mich. Ct. App. 2005).

Opinion

899 So.2d 904 (2005)

April Elaine DAVIDSON, Appellant,
v.
Edwin Daniel COIT, Appellee.

No. 2002-CA-01570-COA.

Court of Appeals of Mississippi.

February 1, 2005.
Rehearing Denied April 19, 2005.

*906 Sandra Nicole Farrell, attorney for appellant.

Christopher A. Tabb, Brandon, attorney for appellee.

Before LEE, P.J., IRVING and GRIFFIS, JJ.

GRIFFIS, J., for the Court.

¶ 1. April Elaine Davidson appeals the chancellor's judgment modifying custody. We find no error and affirm.

FACTS

¶ 2. Edwin Daniel Coit and April Elaine Davidson were married on July 27, 1991. Two children were born during their marriage, Marilyn Elaine Coit and Kathryn Elizabeth Coit. At the time of the hearing in this matter, Marilyn was nine years old and Kathryn was seven years old. On December 30, 1997, the Chancery Court of Rankin County entered a final judgment of divorce based on irreconcilable differences. In the judgment, Coit and Davidson agreed to share joint physical and legal custody of the children. The judgment provided that the children were to live primarily with Davidson, and Coit would have visitation rights.

¶ 3. On August 14, 2001, Coit filed a motion for modification of custody. The motion asserted two grounds for modification: (1) the minor children have been exposed to Davidson's lesbian lifestyle; and (2) Davidson's live-in girlfriends and mother were raising the children.

*907 ¶ 4. After a hearing, the chancellor entered a temporary order that removed the children from Davidson's home and placed them in Coit's custody. After additional hearings, the chancellor issued his findings of facts and conclusion of law that modified the judgment of divorce and granted Coit permanent custody of the children.

¶ 5. Davidson appeals and raises the following issues: (1) the chancellor committed manifest error in granting the modification since there was no substantial change in circumstances since the original custody decree was entered; (2) the chancellor erroneously applied the Albright factors and neglected to make sufficient findings to support his decision; and (3) the chancellor placed too much weight on one individual Albright factor, specifically the moral fitness of the parents.

STANDARD OF REVIEW

¶ 6. This Court will not disturb the findings of a chancellor when supported by substantial evidence unless the chancellor abused his or her discretion, was manifestly wrong, clearly erroneous, or applied an erroneous legal standard. Sanderson v. Sanderson, 824 So.2d 623, 625-26(¶ 8) (Miss.2002).

ANALYSIS

I. Did the chancellor err by granting the motion for modification?

¶ 7. "In cases involving a request for modification of custody, the chancellor's duty is to determine if there has been a material change in the circumstances since the award of initial custody which has adversely affected the child and which, in the best interest of the child, requires a change in custody." Sanford v. Arinder, 800 So.2d 1267, 1271(¶ 15) (Miss.Ct.App. 2001). As such, the non-custodial parent must pass a three-part test: "a substantial change in circumstances of the custodial parent since the original custody decree, the substantial change's adverse impact on the welfare of the child, and the necessity of the custody modification for the best interest of the child." Id. at 1272(¶ 15) (quoting Brawley v. Brawley, 734 So.2d 237, 241(¶ 12) (Miss.Ct.App.1999)). This Court has routinely utilized this test in the area of child custody modifications. See Sanford, 800 So.2d at 1271(¶ 15); Thompson v. Thompson, 799 So.2d 919, 922(¶ 8) (Miss.Ct.App.2001); Brawley, 734 So.2d at 241(¶ 12). In order to clarify the type or magnitude of material changes that warrant a modification of custody, our supreme court explained that when the totality of the circumstances display a material change in the overall living conditions in which the child is found, which are likely to remain changed in the foreseeable future and such change adversely affects the child, a modification of custody is legally proper. Kavanaugh v. Carraway, 435 So.2d 697, 700 (Miss.1983).

¶ 8. In this issue, Davidson argues that Coit did not present sufficient evidence of the first part of the test — a substantial change in circumstances of the custodial parent since the original custody decree. Davidson claims that, at the time of the original divorce, both the court and Coit were aware that she was a lesbian and had a live-in girlfriend. Hence, Davidson reasons that the chancellor committed manifest error by granting the modification because a substantial change in circumstances has not occurred since the original custody decree was entered.

¶ 9. Davidson relies on the following language from Lambert v. Lambert, 872 So.2d 679, 684(¶ 21) (Miss.Ct.App.2003):

To permit a change in custody, there must first be a factual determination based on substantial evidence, presented by the petitioning party, that there has *908 been a substantial and material change in circumstances since the divorce was granted adversely affecting the child and which ... are anticipated to be permanent or continuing such that they would warrant a change in custody. These changed circumstances must be such that they could not be anticipated at the time of the initial determination of custody and of such magnitude as to justify the drastic measure of change in custody.

(Emphasis added in Davidson's brief).

¶ 10. Indeed, Davidson's sexual preference for women was known at the time of the divorce and initial custody determination. However, Coit's motion for modification was not based on the mere assertion that Davidson was a lesbian. Instead, Coit presented evidence that indicated there was a substantial change in circumstances that has occurred since the original custody determination through the children's exposure to her lesbian sexual relationship and that the exposure has adversely affected the children.

¶ 11. Paul Davey, a qualified expert in the area of adolescent, child and family therapy, testified that since the custody award, the children have admitted to him that most of their primary care is provided by Davidson's live-in girlfriend and that they have been exposed to their mother's sexual behavior. Davey testified to the following:

Q. And has [their] mother's living arrangements had any impact and does her current living arrangement have an impact on these two little girls?
A. It appears so, yes sir.
Q. Okay. Tell the Court how this is having an impact on the two little girls.
A. The most current sessions — and I'm going to jump ahead away from the '96 visits and come forward to the visits that actually began in 2000 and this year because I think there is a difference between those periods of time.
Beginning in 2000 and this year, Marilyn began telling me about her mother's current live-in relationship, someone she identified as Nikki and then later as Tina and it turns out that this is actually the same person.
She began to talk with me about her mom and Nikki sharing the bedroom and them watching movies together in the living room.
On the appointment of March 23rd of 2000, she told me her mom and Nikki watched movies in the living room, quote, "there are naked women on the t.v.

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Cite This Page — Counsel Stack

Bluebook (online)
899 So. 2d 904, 2005 WL 225327, Counsel Stack Legal Research, https://law.counselstack.com/opinion/davidson-v-coit-missctapp-2005.