Harper v. Harper

926 So. 2d 253, 2006 WL 923740
CourtCourt of Appeals of Mississippi
DecidedApril 11, 2006
Docket2004-CA-02107-COA
StatusPublished
Cited by2 cases

This text of 926 So. 2d 253 (Harper v. Harper) 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
Harper v. Harper, 926 So. 2d 253, 2006 WL 923740 (Mich. Ct. App. 2006).

Opinion

926 So.2d 253 (2006)

Sharon Ann Walker HARPER, Appellant
v.
Louis Lamont HARPER, Appellee.

No. 2004-CA-02107-COA.

Court of Appeals of Mississippi.

April 11, 2006.

*254 William Paul Starks, Starkville, attorney for appellant.

Luanne Stark Thompson, Aberdeen, attorney for appellee.

Before MYERS, P.J., CHANDLER and GRIFFIS, JJ.

CHANDLER, J., for the Court.

¶ 1. In 1997, the Chancery Court of Monroe County granted Louis Lamount Harper and Sharon Ann Harper a divorce on the ground of irreconcilable differences. The parties agreed to joint physical and legal custody of their two minor children. The parties also agreed that Sharon would have primary physical custody of the children during the school year. On June 23, 2004, Louis filed an action requesting modification of custody. The trial court conducted a hearing on the merits and modified custody granting Louis primary physical custody of J.J. The chancellor issued the final order on September 20, 2004. Sharon appeals, raising the following issues:

I. WHETHER THE CHANCELLOR ERRED IN FINDING A MATERIAL CHANGE IN CIRCUMSTANCES.

II. WHETHER THE CHANCELLOR ERRED IN GRANTING LOUIS HARPER PRIMARY CUSTODY.

¶ 2. Finding no error, we affirm.

FACTS

¶ 3. Louis and Sharon were divorced on March 7, 1997, in Monroe County, Mississippi. The Monroe County courts have maintained jurisdiction throughout the parties' litigation. Louis continues to live in Monroe County. The parties agreed to joint physical and legal custody, with Sharon Harper having primary physical custody of the parties' two children during the school year. The children are Kendra and Louis Harper, Jr., also known as J.J. Kendra was born on October 24, 1988, and J.J. was born on January 17, 1991. J.J. is afflicted with Down Syndrome and he has moderate special needs.

*255 ¶ 4. Around the time of the divorce in 1997, Sharon moved to Minneapolis, Minnesota with Kendra and J.J. For approximately eight years, both of the children resided in Minnesota with Sharon. The children spent every summer with Louis in Mississippi. In 2004, Kendra wanted to move to Mississippi to attend school. At that time, Sharon and Louis agreed to allow Kendra to move to Mississippi and live with her father.

¶ 5. On June 23, 2004, Louis filed a "Complaint for Contempt, for Emergency Relief, and for Modification of Child Custody." Louis alleged that a material change in circumstances had occurred with regard to the custody of J.J. when Kendra moved to Mississippi. Sharon Harper denied the allegation in her response and counterclaim. The trial court ordered physical custody of J.J. to Louis. On appeal, Sharon contends that there was not a material change in circumstances when Kendra moved to Mississippi. Sharon argues, even if the chancellor found a material change in circumstances, the change was not adverse to J.J. and should not result in a modification of child custody.

STANDARD OF REVIEW

¶ 6. In custody cases, an appellate court must affirm findings of fact by chancellors in domestic cases when they are supported by substantial evidence. Holloman v. Holloman, 691 So.2d 897, 898 (Miss.1996). The appellate court must reverse the chancellor's decision only if it is manifestly wrong or clearly erroneous, or if the chancellor applied an erroneous legal standard. Brocato v. Brocato, 731 So.2d 1138, 1140 (¶ 8) (Miss.1999).

¶ 7. When determining whether to modify a previous child custody order, the chancellor must "determine if there has been a material change in 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).

ANALYSIS

I. WHETHER THE CHANCELLOR ERRED IN FINDING A MATERIAL CHANGE IN CIRCUMSTANCES.

¶ 8. On appeal, Sharon contends that a material change in circumstances did not occur when Kendra moved to Mississippi. At trial, both Sharon and Louis stipulated that the custody of Kendra was to be changed from Sharon to Louis. Both parties also stipulated to the fact that this was in the best interest of Kendra. Next, the chancellor questioned, "[b]y virtue of that [referring to the change in custody of Kendra], that constitutes a substantial and material change since the rendition of the previous decree of this Court; is that correct?" Louis's counsel replied, "[y]es, your honor." Sharon's trial counsel did not respond.

¶ 9. The chancellor again addressed the stipulation during his bench ruling by stating, "the parties stipulated prior to beginning the case that it would be in the best interest and welfare of Kendra to live with her father and that that constituted a substantial and material change in which the Court could modify that decree and did so." In the bench ruling, the chancellor also stated "[i]t having been stipulated that there are material and substantial changes which merit a revisitation of the issue of custody with regard to the minor child, and, principally, because the older sibling, Kendra, would be moving back with her father to Mississippi, then the Court really goes directly to the Albright factors." There was no objection by either party *256 with regard to either of the judge's comments in the bench ruling.

¶ 10. A stipulation of fact is a fact which both parties agree is true. Wilbourn v. Hobson, 608 So.2d 1187, 1189 (Miss.1992). Sharon had multiple opportunities prior to trial and during the bench ruling to inform the court that she did not stipulate that there was a material and substantial change in circumstances. When parties agree to a stipulation, "[n]either party can later change positions." Id. Because Sharon's trial counsel did not respond or object to the stipulation, the issue of what constitutes a substantial and material change was not addressed by the chancellor. "Where a party fails to preserve his objection for appeal, he can assert the error on appeal only by arguing that there was plain error." Waldon v. State, 749 So.2d 262, 267 (¶ 14) (Miss.Ct.App.1999) (citing Brown v. State, 690 So.2d 276, 297 (Miss.1996)). Sharon's counsel does not assert that the failure to respond to the stipulation was plain error. Sharon merely argues that the material and substantial change in circumstances did not occur. We hold that the parties stipulated to the fact that there was a material and substantial change in circumstances. Therefore, the chancellor did not err in finding that a material change in circumstances had occurred.

II. WHETHER THE CHANCELLOR ERRED IN GRANTING LOUIS HARPER PRIMARY CUSTODY

¶ 11. "Once a material change in circumstances as they relate to child custody has been found, the chancellor should use the Albright factors to decide which parent should have custody of the child." Mixon v. Sharp, 853 So.2d 834, 839 (¶ 19) (Miss.Ct.App.2003) (citing Sturgis v. Sturgis, 792 So.2d 1020, 1025 (¶ 19) (Miss.Ct. App.2001)).

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Cite This Page — Counsel Stack

Bluebook (online)
926 So. 2d 253, 2006 WL 923740, Counsel Stack Legal Research, https://law.counselstack.com/opinion/harper-v-harper-missctapp-2006.