Duke v. Elmore

956 So. 2d 244, 2006 WL 2405884
CourtCourt of Appeals of Mississippi
DecidedAugust 22, 2006
Docket2005-CA-00328-COA
StatusPublished
Cited by9 cases

This text of 956 So. 2d 244 (Duke v. Elmore) 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
Duke v. Elmore, 956 So. 2d 244, 2006 WL 2405884 (Mich. Ct. App. 2006).

Opinion

956 So.2d 244 (2006)

Heidi Davis Elmore DUKE, Appellant
v.
Robert E. ELMORE, Jr., Appellee.

No. 2005-CA-00328-COA.

Court of Appeals of Mississippi.

August 22, 2006.
Rehearing Denied February 13, 2007.

*246 Jak McGee Smith, Tupelo, attorney for appellant.

David Lee Brewer Christopher Hederi Neyland, Ridgeland, attorneys for appellee.

Before LEE, P.J., SOUTHWICK and ISHEE, JJ.

ISHEE, J., for the Court.

¶ 1. Robert E. Elmore, Jr. ("Robert") moved for modification of custody of his and Heidi Elmore Duke's ("Heidi") minor child. The chancellor granted modification of custody, awarding physical custody, as well as $106.40 per month in child support, to Robert. Aggrieved, Heidi appeals. Finding no error, we affirm.

FACTS

¶ 2. Robert and Heidi entered an agreement entitled "Child Custody, Support and Property Settlement Agreement" in 2001, which was eventually incorporated into the final judgment of divorce on May 31, 2001. In the agreement, Heidi and Robert agreed to give primary physical custody of their minor child, Matthew Swedlund Elmore ("Matthew") to Heidi.

¶ 3. On April 11, 2003, Robert filed a motion for modification of final judgment of divorce and child custody in the Chancery Court of Monroe County. The motion alleged that a material change in circumstances adversely affecting the welfare of Matthew warranted a change of physical custody, in the best interest of the child. The material change in circumstances alleged by Robert consisted of allegations that: (a) Heidi was using Matthew's welfare in an attempt to extort money from Robert; (b) Heidi refused to divulge her place of employment and the responsibilities pertaining to such employment; and (c) Heidi was moving Matthew from residence to residence too frequently.

¶ 4. Heidi filed a motion denying the allegations on June 23, 2003. A trial was held on the matter on August 12, 2003, and the chancellor rendered an opinion on the same day. The chancellor found that there had been a material change in circumstances since the entry of the final judgment of divorce, and that, after considering the Albright factors, it was in the best interest of Matthew to modify primary physical custody in favor of Robert. The parties maintained joint legal custody, *247 allowing Heidi visitation, and Robert was awarded $106.40 per month in child support.

¶ 5. On September 8, 2003, Heidi filed a motion for a new trial or judgment notwithstanding the verdict, which, after a hearing on December 20, 2004, was overruled by court order on February 3, 2005. Heidi filed a timely notice of appeal on February 11, 2005. Heidi asserts that the chancellor erred in modifying the final divorce decree by transferring custody of Matthew to Robert for the following reasons: (1) no material and substantial change in circumstances had occurred since entry of the original divorce decree granting custody to Heidi; (2) the chancellor used an incorrect standard in modifying custody when there existed no adverse effect on the minor child from any actions of Heidi since entry of the original divorce decree; (3) the chancellor used an incorrect legal standard by his application of the Albright factors as a substitute for the required finding of substantial and material circumstances adversely affecting the minor child of the parties; (4) the chancellor used an incorrect legal standard by his misapplication of "totality of circumstances" where there was no home environment that was detrimental to the safety of the minor child; and (5) the chancellor committed manifest error in his analysis of the facts that he considered in applying the Albright factors in his overemphasis of the "moral" factor where there was no showing that it had adversely affected the minor child.

STANDARD OF REVIEW

¶ 6. This Court will not reverse a chancellor's findings concerning modification of custody unless the chancellor was "manifestly wrong, clearly erroneous, or the proper legal standard was not applied." In re E.C.P., 918 So.2d 809, 822(¶ 58) (Miss.Ct.App.2005) (citing Hensarling v. Hensarling, 824 So.2d 583, 587(¶ 8) (Miss.2002)). The movant has the burden to prove by the preponderance of the evidence that a material change in circumstances has occurred. In re E.C.P., 918 So.2d at 822-23(¶ 58) (citing Riley v. Doerner, 677 So.2d 740, 743 (Miss.1996)). "In the ordinary modification proceeding, 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." In re E.C.P., 918 So.2d at 823(¶ 58) (citing Bubac v. Boston, 600 So.2d 951, 955 (Miss.1992)).

ISSUES AND ANALYSIS

I. Whether the chancellor erred by finding that a material change in circumstances had occurred since the original divorce decree.

¶ 7. The totality of the circumstances should be considered when considering whether a material change in circumstances has occurred. In re E.C.P., 918 So.2d at 823(¶ 58) (citing Spain v. Holland, 483 So.2d 318, 320 (Miss.1986)). If, after examining the totality of the circumstances, a material change in circumstances is found to have occurred, the chancellor "must separately and affirmatively determine that this change is one which adversely affects the children." Id. (citation omitted). The polestar consideration is, of course, the best interest of the child. Id. at 823(¶ 58) (citing Albright v. Albright, 437 So.2d 1003, 1005 (Miss. 1983)).

¶ 8. In the case sub judice, the chancellor began his bench opinion by citing several cases enunciating the above legal framework. He then continued by *248 noting that the polestar consideration, the best interest of the child, is analyzed through the Albright factors,[1] whether dealing with an initial custody decision or a custody modification. The chancellor proceeded to apply the Albright factors to the facts as established through testimony. In doing so, the chancellor noted several times that Heidi had moved four times within the two years since the divorce, maintained sporadic employment, and ended up moving into a two-bedroom home with a convicted felon. Heidi testified that she was not sure whether the man was divorced yet at the time, though he subsequently testified that he was, indeed, divorced at the time. Heidi shared a bedroom with the man while her mother shared the second bedroom with Matthew. This went on for approximately ten months until she married the man. In conclusion, the chancellor found that the Albright factors came out in favor of the father.

¶ 9. After discussing the Albright factors, the chancellor discussed whether there had been a material change in circumstances since the original custody decree, and whether, if such a change had occurred, it was adverse to the best interests of the child. The chancellor stated, after noting that he had considered the totality of the circumstances, the following:

Now, the question is, is there a substantial and material change in circumstances here? This child has been exposed to everything from a barn[2] to a felon. I'm not low rating horses. But I'm saying it's not the best place in the world to raise a little boy. It's not the best place in the world to have a stepfather who is a convicted felon. And I know you don't hold this against people for life.

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Cite This Page — Counsel Stack

Bluebook (online)
956 So. 2d 244, 2006 WL 2405884, Counsel Stack Legal Research, https://law.counselstack.com/opinion/duke-v-elmore-missctapp-2006.