McSwain v. McSwain

943 So. 2d 1288, 2006 WL 3627746
Mississippi Supreme Court·Decided December 14, 2006·No. 2004-CT-00088-SCT·Published·Cited by 10 cases

Opinion

943 So.2d 1288 (2006)

Ginger M. McSWAIN (Hartfield)
v.
Charles C. McSWAIN.

No. 2004-CT-00088-SCT.

Supreme Court of Mississippi.

December 14, 2006.

William E. Andrews, III, Purvis, attorney for appellant.

James R. Hayden, Hattiesburg, attorney for appellee.

EN BANC.

*1290 ON WRIT OF CERTIORARI

COBB, Presiding Justice, for the Court.

¶ 1. The Lamar County Chancery Court, in a hearing for modification of child custody, held that custody should be transferred from the mother, Ginger M. McSwain Hartfield[1], to the father, Charles C. McSwain. The Court of Appeals reversed, finding that the chancellor had erred in considering Ginger's past behavior and the possibility of future improvident behavior in determining whether there had been a material change in circumstances that had adversely affected their child, Miller McSwain. We hold that there was no abuse of discretion by the chancellor; and therefore, we reverse the judgment of the Court of Appeals and affirm the chancellor's judgment.

FACTS AND CHANCERY COURT PROCEEDINGS

¶ 2. Charles and Ginger McSwain were married in 1997, and Miller was born in October, 1998. The couple filed for an irreconcilable differences divorce in April of 2000 in the Lamar County Chancery Court. In the settlement agreement, they agreed to joint legal custody of Miller with Ginger having primary physical custody.[2] The judgment was final on September 14, 2000.

¶ 3. In February 2001, Ginger married Joe Hartfield. The trial evidence shows that the marriage was strained from the beginning. Hartfield and Ginger engaged in arguments and fights that sometimes erupted into physical violence as well.[3] On at least one occasion, the violence rose to such a level that the police had to be called.

¶ 4. Hartfield testified that he believed Ginger's actions to be the result of her alcoholism. He also spoke of Ginger's problems with depression and the negative effect that her drinking had on her medication. On one occasion, Hartfield, frightened by Ginger's actions, left with Miller and took him to the home of Hartfield's mother.

¶ 5. In July 2002 Ginger began using cocaine with her neighbor, Ramona. Ginger admitted that by September, she and Ramona were using cocaine frequently. She also admitted that Miller would go with her to Ramona's house when she was using cocaine, but she denied ever using cocaine "in front of him."[4] Ginger did admit to drinking a few times a week in front of Miller.[5]

¶ 6. In late September of 2002, Ginger voluntarily admitted herself into the Jolimar Wellness Institute (Jolimar) for drug and alcohol rehabilitation. Ginger, Hartfield, *1291 and Charles McSwain agreed privately that Charles would have physical possession of Miller for the duration of Ginger's stay at Jolimar. On October 22, 2002, Ginger completed a 28-day primary care program at Jolimar, and then stayed in an extended care program which she completed on November 22, 2002. However, she attended the weekly aftercare program only until February, 2003, notwithstanding Jolimar's discharge evaluation and aftercare recommendation that she attend aftercare groups for two years.

¶ 7. On November 5, 2002, before Ginger had completed her extended care program, Charles filed a petition for modification and emergency hearing without notice in the Lamar County Chancery Court, seeking permanent modification of child custody. On that day, the chancellor granted temporary physical custody of Miller to Charles in an ex parte emergency temporary order. On November 13, Ginger moved to set aside the temporary order, and the chancellor modified the temporary order to allow Ginger weekend visitation beginning November 15, 2002.

¶ 8. Between December 10, 2002, and January 31, 2003, the chancellor entered three additional temporary orders which increased Miller's time with Ginger, on an alternating basis. The trial was set for March 12, 2003, but when a subpoenaed witness failed to appear, the matter was continued. Once again, the chancellor entered a temporary order regarding Miller, which alternated his physical possession between Charles and Ginger on a weekly basis until the date of trial.

¶ 9. The trial took place August 25 and 26, 2003. Final judgment was issued September 16, 2003, continuing joint legal custody, but transferring physical custody of Miller from Ginger to Charles, and granting "every reasonable visitation" to Ginger, albeit within a specific schedule. In support of his decision, the chancellor cited that Ginger is an admitted drug and alcohol addict who is currently on medication for depression. The chancellor found that Ginger has had suicidal thoughts and suffers from the usual negative feelings that accompany drug and alcohol abuse. It was also found that there is still friction between Ginger and Hartfield in their marriage. Ginger's continued association with Ramona, the neighbor who had supplied Ginger with cocaine, was of particular concern to the chancellor.

¶ 10. The judgment also reflected the chancellor's concerns that Ginger had not attended the suggested aftercare for her rehabilitation. Ginger's counselor at Jolimar testified that he believed Ginger would seek help if she lost control of her actions. The chancellor stated that Ginger's past inability to control her actions would not make for a good circumstance for a child dependant on Ginger making important decisions.

¶ 11. Although it was recognized that Charles had been married four times and used alcohol regularly,[6] the chancellor found that Charles had a more stable home environment. To support this position, the chancellor pointed out that Charles worked from his home, had a comfortable income and was currently in a stable marriage.

¶ 12. With these findings, the chancellor determined that there had been a material change in circumstances which had an adverse impact on Miller. The chancellor then tracked the factors set forth in Albright v. Albright, 437 So.2d 1003 (Miss. 1983), as he evaluated the facts and circumstances to determine whether it was in *1292 Miller's best interest to remain in the custody of his mother, or whether it would be best for Miller to be in his father's custody. The chancellor then awarded custody of Miller to Charles McSwain, giving Ginger reasonable visitation rights.

PROCEEDINGS IN THE COURT OF APPEALS

¶ 13. On direct appeal, the Court of Appeals reversed and rendered with respect to the chancellor's decision to modify custody of Miller, holding that the chancellor had abused his discretion by "focus[ing] on the potential for future problems rather than the presently-existing circumstances of Miller's home life." McSwain v. McSwain, 944 So.2d 47, 52, 2005 WL 2979678, 2005 Miss.App. LEXIS 833 at ¶ 13 (Miss.Ct.App.2005).

ANALYSIS

I. Standard of Review

¶ 14. This Court laid out the standard for reviewing a chancellor's decision in a child custody case in Mabus v. Mabus, 847 So.2d 815 (Miss.2003). "In a case disputing child custody, the chancellor's findings will not be reversed unless manifestly wrong, clearly erroneous, or the proper legal standard was not applied." Id. at 818.

II. Evidence of material change in circumstances

¶ 15.

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