Marter v. Marter

914 So. 2d 743, 2005 WL 1744968
CourtCourt of Appeals of Mississippi
DecidedJuly 26, 2005
Docket2004-CA-00472-COA
StatusPublished
Cited by10 cases

This text of 914 So. 2d 743 (Marter v. Marter) 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
Marter v. Marter, 914 So. 2d 743, 2005 WL 1744968 (Mich. Ct. App. 2005).

Opinion

914 So.2d 743 (2005)

Cindy Lea (Greene) MARTER, Appellant
v.
Jeffrey Duane MARTER, Appellee.

No. 2004-CA-00472-COA.

Court of Appeals of Mississippi.

July 26, 2005.
Rehearing Denied November 15, 2005.

*745 M. Kevin Horan, Vanessa Ann Winkler-Price, attorneys for appellant.

James P. Vance, Grenada, attorney for appellee.

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

ISHEE, J., for the Court.

¶ 1. The chancellor modified the original divorce decree and transferred paramount physical custody from the mother to the father. Finding no error, we affirm.

STATEMENT OF FACTS

¶ 2. On December 16, 2002, Jeffrey Duane Marter (Father) and Cindy Lea Greene Marter (Mother) were granted a divorce decree due to irreconcilable differences by the Chancery Court of Grenada County. Mother and Father were awarded joint legal custody of their children: Rebecca Lindsay Marter (Lindsay) and Lorrin Elizabeth Marter (Lorrin). Mother was awarded the paramount physical care, custody and control of the children. Additionally, Mother and Father agreed to a specific visitation schedule. Mother and the children subsequently moved to Nashville, Tennessee in January 2003.

¶ 3. In July 2003, Father petitioned for a modification of the divorce decree, specifically requesting that the chancellor award physical and legal custody to him arguing that a material change in circumstances had occurred since the decree was issued that was adversely affecting the children. Father additionally requested that he be relieved of the obligation to pay child support, and that Mother be required to make payments for the support and maintenance of the children. Mother filed a counter-petition requesting a citation for contempt alleging that Father had failed to pay one-half of the children's medical expenses as directed by the divorce decree. Following a hearing, the chancellor granted Father's petition and modified the divorce decree. In January 2004, the chancellor awarded paramount physical custody of the children to Father having found that a substantial and material change in circumstances adversely affecting the children had occurred and that a modification of the decree was in the best interest of the children. The chancellor further ordered that Mother pay $200 a month in child support.

¶ 4. Mother then filed a petition to set aside the order and for a new trial or, in the alternative, a motion to alter or amend the judgment. The chancellor denied the motion for a new trial in February 2004; however, he granted Mother's petition as to the issue of her monthly child support payments. The chancellor reduced the payments from $200 to $180. Aggrieved by the chancellor's decision, Mother appeals asserting the following: (1) whether *746 the chancellor failed to specifically identify a material change in circumstances adversely affecting the welfare of the minor children prior to analyzing whether a change in custody was warranted; (2) whether Father proved by substantial, credible evidence that a material change in circumstances had occurred which affected the welfare of the children; and (3) whether the evidence supported the chancellor's finding that the best interests of the children would be served by a change of custody.

ISSUES AND ANALYSIS

I. Whether the chancellor failed to specifically identify a material change in circumstances adversely affecting the welfare of the minor children prior to determining whether a change in custody was warranted.

¶ 5. Mother asserts that the chancellor erred in failing to identify a specific, material change which had an adverse impact on the children prior to conducting an Albright[1] analysis.

When considering a modification of child custody, the proper approach is to first identify the specific change in circumstances, and then analyze and apply the Albright factors in light of that change. Where there is no specific identification of the alleged change in circumstances, this Court is placed in the position of attempting to guess what the chancellor determined was a proper basis for a change in custody.

Sturgis v. Sturgis, 792 So.2d 1020, 1025(¶ 19) (Miss.Ct.App.2001). Mother maintains that this error requires a reversal by this Court. See Thornell v. Thornell, 860 So.2d 1241, 1243 (¶ 8) (Miss.Ct.App.2003).

¶ 6. The standard of review regarding both the questions of law and the findings of fact is as follows: as to questions of law, an appellate court reviews de novo whether the trial court applied the proper legal standard in deciding a custody modification request. Morgan v. West, 812 So.2d 987, 990 (¶ 8) (Miss.2002). As to the findings of fact, the chancellor, as fact-finder, "is entitled to substantial deference when his determinations are subjected to attack on appeal and appellate review searches only for an abuse of discretion." Rogers v. Morin, 791 So.2d 815, 826 (¶ 39) (Miss.2001).

¶ 7. This issue involves whether the chancellor applied the proper legal standard in deciding Father's request for a modification of the custody order, and as previously mentioned, this issue mandates a de novo review by this Court. The chancellor's December 2003 opinion specifically addressed the Mississippi Supreme Court's sequential prerequisites for modifying a custody decree as articulated by this Court:

First, a party must show that since entry of the judgment or decree sought to be modified, there has been a material change in circumstances which adversely affects the welfare of the child. Second, the party must also show that the best interest of the child requires a change in custody.

Creel v. Cornacchione, 831 So.2d 1179, 1183 (¶ 15) (Miss.Ct.App.2002) (citing Smith v. Jones, 654 So.2d 480, 486 (Miss.1995)). Additionally, the Mississippi Supreme Court was clear that "not every change in circumstances is so adverse that a modification of custody is warranted; however, the chancellor must consider the circumstances of each case in light of the *747 totality of the circumstances." Creel, 831 So.2d at 1183 (¶ 15) (citing Ash v. Ash, 622 So.2d 1264, 1266 (Miss.1993)). The Mississippi Supreme Court has explicitly detailed the sequence which the chancellor must follow when considering a petition to modify a child custody decree:

Even though the chancellor finds a material[,] adverse change in circumstances, a change in custody is not automatic. That finding is merely the first step, the one which then authorizes and indeed challenges the chancellor to then go forward and determine whether the best interests of the child justify a change in custody.

Tucker v. Tucker, 453 So.2d 1294, 1297 (Miss.1984).

¶ 8. The record clearly shows that the chancellor articulated the correct legal standard. That, however, is not by itself sufficient, and so we now consider whether the chancellor applied that standard appropriately. As previously stated, before a custody decree may be modified, the chancellor must first find that a material change in circumstances has occurred which adversely affects the welfare of the child, and then the chancellor must analyze the Albright factors to determine whether the best interest of the child will be served by a change in custody.

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Bluebook (online)
914 So. 2d 743, 2005 WL 1744968, Counsel Stack Legal Research, https://law.counselstack.com/opinion/marter-v-marter-missctapp-2005.