Massey v. Huggins

799 So. 2d 902, 2001 WL 1356989
CourtCourt of Appeals of Mississippi
DecidedNovember 6, 2001
Docket2000-CA-00929-COA
StatusPublished
Cited by16 cases

This text of 799 So. 2d 902 (Massey v. Huggins) 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
Massey v. Huggins, 799 So. 2d 902, 2001 WL 1356989 (Mich. Ct. App. 2001).

Opinion

799 So.2d 902 (2001)

Bridgett Huggins MASSEY, Appellant
v.
Dan HUGGINS, Appellee.

No. 2000-CA-00929-COA.

Court of Appeals of Mississippi.

November 6, 2001.

*904 James R. Hayden, Hattiesburg, for Appellant.

Terry L. Caves, Laurel, for Appellee.

Before SOUTHWICK, P.J., THOMAS, and IRVING, JJ.

SOUTHWICK, P.J., for the Court:

¶ 1. At the time of their divorce, the parties agreed to joint custody of their three children. Several years later, the chancellor granted a motion to give the father sole custody. On appeal, the children's mother argues that insubstantial grounds were shown for modification. We disagree and affirm the change in custody. However, we reverse the part of the final decree that required the mother to pay child support.

STATEMENT OF FACTS

¶ 2. Dan Huggins and Bridgett Huggins Massey were married in 1984. Three children were born to them: Brittany Nicole in 1987, Brandi Kaitlyn in 1990, and Emily Brooke in 1993. A divorce was granted to the couple in 1996 based on irreconcilable differences. The decree approved the parties' agreement as to child custody, support, and the division of property. The mother and father received joint physical and legal custody of the three children. The parties had agreed that no child support would be awarded. The feature of the agreement that became the focus of practical difficulties was the frequent change in custody. The father had custody every weekend beginning at 5:00 p.m. on Friday and ending at 8:00 p.m. on Sunday; he also had the children during the week beginning at 3:00 p.m. on Wednesday *905 and ending Thursday morning when the children were to be in school. During the children's summer vacation from school, the father's custody began on the first Friday after the last school day of the year and ended the week prior to the first day of the next school year. The children's mother had custody during the summer every weekend beginning at 5:00 p.m. on Friday and ending at 5:00 p.m. on Sunday.

¶ 3. For a time, the parents remained in the same general vicinity. In July 1998, the mother married Clayton Massey. The couple moved from Jones County to south Forrest County. There the three children were enrolled in school.

¶ 4. The father Huggins was a minister in the Church of Christ. He too remarried and initially remained in Laurel. In May 1998, he moved to Natchez in order to continue his ministry at another church. While in Natchez, Mr. Huggins continued to exercise his rights to custody on the weekends but did not exercise his physical custody rights on Wednesdays.

¶ 5. In October 1999, Mr. Huggins filed for a modification of custody. The mother filed her own claim for a modification. Each parent now wanted sole custody. Mrs. Massey also sought to have her former husband start paying child support; Mr. Huggins did not seek any support payments.

¶ 6. While the modification petitions were pending, Mr. Huggins in January 2000 moved to Long Beach. Shortly thereafter, Brittany Huggins, now twelve years old, moved to Long Beach to live with her father. In February 2000, Massey and the two younger children moved to Petal, Mississippi, and the two other children were enrolled in the Petal School District.

¶ 7. After a two day trial, the lower court modified the former decree on May 12, 2000. The father was granted primary physical custody of the three children and the mother was given substantial visitation rights. The mother also was ordered to pay child support in the amount of 22% of her gross income.

DISCUSSION

I. Modification of Child Custody

¶ 8. An appellate court does not reweigh the evidence considered in chancery court. If we find substantial evidence to support the findings of fact that are made by a chancellor, even if our evaluation might have been different, and unless we find that the chancellor applied an erroneous legal standard, we will affirm. Williams v. Williams, 656 So.2d 325, 330 (Miss.1995).

¶ 9. The legal structure into which a chancellor should place the evidence in custody modification proceedings has three sections. (1) The initial burden is on the party seeking the change to demonstrate that there has been a material change in the circumstances affecting the child. (2) If that is shown, it must also be shown that the change is detrimental to the child's welfare. (3) Finally, the chancellor must find that the change in custody is in the child's best interest. Bredemeier v. Jackson, 689 So.2d 770, 775 (Miss.1997).

¶ 10. Here, the chancellor found that there was a material change in circumstances adverse to the best interests of the three children. That change was that because of the parents' no longer living in the same vicinity, joint physical custody with frequent change between the parents was unworkable if not impossible. The chancellor determined that the distance between the residences and the different *906 school districts that were now involved required a change in custody.

¶ 11. There have been prior decisions regarding initial joint custody arrangements that became impractical after one or both parents moved. In each of them, the court agreed that there should be a modification in custody. Lackey v. Fuller, 755 So.2d 1083, 1089 (Miss.2000); Riley v. Doerner, 677 So.2d 740, 743 (Miss.1996); McRee v. McRee, 723 So.2d 1217, 1219 (Miss.Ct.App.1998).

¶ 12. In McRee, the parties had agreed to alternating monthly custody at a time when both parents lived in the Jackson, Mississippi area. McRee, 723 So.2d at 1218. This arrangement was rendered impractical when one parent decided to move to Texas. Id. at 1219. The chancellor made an initial determination that the joint custody arrangement agreed to by the parties would have to be altered and that primary custody would be vested in one parent. Id. We affirmed, and the Supreme Court later in a similar appeal referred approvingly to our conclusion. Lackey, 755 So.2d at 1088.

¶ 13. Though not as severe as in McRee, impracticality exists here. The prior custody arrangement had four exchanges between the parents every week. Early in the proceedings, the chancellor stated that "as I view the situation, the biggest change that has occurred, as far as these parties are concerned, is that their joint physical custody arrangements are not possible now because they live in different areas of the state." The chancellor also stated that "there will have to be a change of custody" and that "the issue before the court is whether it's going to be with [the] mother or father."

¶ 14. Having found that the impracticality of the present joint physical custody arrangement was a material change in circumstances adverse to the children's best interests, the chancellor proceeded to evaluate the twelve considerations for making a decision about child custody announced in Albright v. Albright, 437 So.2d 1003, 1005 (Miss.1983). We review that evaluation made by the chancellor on the record of each of the Albright considerations.

(a) Age and health of the children: The chancellor determined that the children, who were between the ages of 7 and 12, did not require constant supervision. He also found that they were in good health. Neither parent received any advantage under this consideration.

(b) Parent with continuing care of the children: The chancellor determined that this factor weighed in favor of the father because since the time of the divorce he had the three children in his care more than the mother had.

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Bluebook (online)
799 So. 2d 902, 2001 WL 1356989, Counsel Stack Legal Research, https://law.counselstack.com/opinion/massey-v-huggins-missctapp-2001.