Lambert v. Lambert

872 So. 2d 679, 2003 WL 22434733
CourtCourt of Appeals of Mississippi
DecidedOctober 28, 2003
Docket2001-CA-01739-COA
StatusPublished
Cited by43 cases

This text of 872 So. 2d 679 (Lambert v. Lambert) 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
Lambert v. Lambert, 872 So. 2d 679, 2003 WL 22434733 (Mich. Ct. App. 2003).

Opinion

872 So.2d 679 (2003)

Lytricia LAMBERT, Appellant,
v.
Travis LAMBERT, Appellee.

No. 2001-CA-01739-COA.

Court of Appeals of Mississippi.

October 28, 2003.
Rehearing Denied February 17, 2004.
Certiorari Denied May 13, 2004.

*680 David L. Calder, University, attorney for appellant.

Joe Dale Walker, Monticello, attorney for appellee.

Before KING, P.J., BRIDGES and LEE, JJ.

KING, P.J., for the Court.

¶ 1. Lytricia Simmons Lambert and Travis Lambert agreed to a divorce based on irreconcilable differences and the Chancery Court of Lawrence County entered its decree on November 4, 2000, incorporating the terms agreed upon by the parties. The parties agreed that the mother would have primary physical custody of their minor child, William Travis Lambert, with the father given certain visitation rights.

¶ 2. On February 1, 2001, less than three months after the entry of the divorce, Travis filed a motion for modification of the custody, support, and visitation alleging a "material change in circumstances" because Lytricia "just this week moved from Hattiesburg, Mississippi to Batesville, Mississippi... making it impossible for the petitioner to have visitation with his minor child as set forth in the Final Decree of *681 Divorce." After conducting a hearing, the chancery court granted Travis' motion and changed primary custody to him. Lytricia appeals from that judgment by the Lawrence County Chancery Court.

¶ 3. On appeal, Lytricia raises the following assignment of errors:

1. Whether Appellee Travis Lambert presented sufficient credible evidence to support his allegation that there had been a substantial change in the circumstances of the parties that was expected to continue and to adversely affect the best interest of the minor child, so as to change the terms and conditions of the custody agreement that had previously been established by the trial court was justified.
2. Whether the chancellor erred and/or abused his discretion by finding that there had been a material change in circumstances adverse to the best interest of the minor child, so that a modification of the original divorce and custody decree was warranted because Appellant Lytricia Simmons Lambert relocated her residence.
3. Whether the chancellor's findings of fact were supported by credible evidence, or whether he improperly applied the law in his decision to modify custody.
4. Whether the chancellor erred and/or abused his discretion by proceeding to an "Albright analysis" when there had been no credible evidence of a material change in circumstances that adversely affected the best interest of the minor child.
5. Whether the trial court erred and/or abused its discretion in shifting primary physical custody of the minor child to the father because the mother relocated to a different part of the state.
6. Whether the trial court erred and/or abused its discretion by punishing the mother for her relocation of her residence to a different part of the state by changing primary physical custody of the minor child to the father, and placing the primary burden of traveling on the mother for the purposes of visitation.

¶ 4. Finding that the chancellor committed error in changing custody, this Court reverses and renders the decision of the chancery court.

FACTS

¶ 5. At a hearing on July 24, 2000, Lytricia Simmons Lambert and Travis Lambert appeared before the chancellor and agreed to an irreconcilable differences divorce including an agreement as to property, child custody, support and visitation. They agreed to joint legal custody of their child, William Travis Lambert, born on December 26, 1992, with Lytricia having primary physical custody during the school year, subject to Travis' having defined visitation. Travis was allowed a mid-week visitation period each Wednesday from the time the child got out of school until 8:00 p.m. and overnight visitation two weekends per month, plus extended visitation during the summer months.

¶ 6. At the time of the July hearing, as evidenced by the discussions concerning visitation, Lytricia was in the process of moving from the marital home near Monticello to Hattiesburg. Unable to find fulltime employment in Hattiesburg, Lytricia and her son moved to her parents' home in Pope, Mississippi, in late January 2001. William was enrolled in the second grade at Pope Junior High School in the South Panola School District.

¶ 7. After working part-time with her father and for Cross Mark, Lytricia found full-time employment as a dispatcher with the Batesville Police Department in June 2001. She worked two days on and two *682 days off, from 6:00 a.m. to 6:00 p.m., earning approximately $1,500 per month.

¶ 8. As part of the divorce agreement, Travis retained possession of the marital domicile in Jayess, Mississippi where he still lives. His mother, brother and sisterin-law live nearby. Travis had worked for Georgia-Pacific in Monticello as a life truck operator in the shipping department for over seven years at the time of the modification hearing. He works fourteen days on and fourteen days off, working from either 7:00 a.m. to 7:00 p.m. or 7:00 p.m. to 7:00 a.m.

¶ 9. For reasons which are not clear, after the July 2000 hearing, the chancellor did not sign the order granting the parties' divorce until October 23, 2000, and the order was not entered by the chancery clerk until November 4, 2000.

¶ 10. In his motion for modification of custody, filed less than three months after the divorce decree, Travis alleged a "material change in circumstances" because Lytricia "just this week moved from Hattiesburg, Mississippi to Batesville, Mississippi... making it impossible for the petitioner to have visitation with his minor child as set forth in the Final Decree of Divorce." No other grounds were alleged for the modification.

¶ 11. At the June 12, 2001 hearing on his motion, Travis testified and presented four other witnesses: Lytricia Lambert as an adverse witness; Paul Davey, a professional counselor who evaluated William; Karen Lambert, Travis' sister-in-law; and Wallene Lambert, Travis' mother. After Travis rested, counsel for Lytricia moved to dismiss the motion based on the failure of Travis to prove his case. The chancellor inexplicably denied the motion because Lytricia had filed a motion seeking modification of the weekday visitation. The chancellor stated that "there's no doubt that a material change in circumstances adversely affecting the child has been met in these circumstances, so therefore the motion will be overruled." The chancellor gave no further explanation.

¶ 12. After Lytricia presented her witnesses, the chancellor went through the Albright factors and awarded primary physical custody of the minor child to Travis during the school year with Lytricia having custody during the summer months. The noncustodial parent would also have two weekends per month visitation and additional visitation as provided for holidays. Significantly, the court also allowed Lytricia to exercise a mid-week visit from the time school is out until 8:00 p.m., but only if she were willing to drive the full distance back and forth. Under the previous arrangement, Lytricia drove William to Jackson so that Travis could have his mid-week visitation.

¶ 13.

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Cite This Page — Counsel Stack

Bluebook (online)
872 So. 2d 679, 2003 WL 22434733, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lambert-v-lambert-missctapp-2003.