Mixon v. Sharp

853 So. 2d 834, 2003 WL 21911190
CourtCourt of Appeals of Mississippi
DecidedAugust 12, 2003
Docket2002-CA-01141-COA
StatusPublished
Cited by20 cases

This text of 853 So. 2d 834 (Mixon v. Sharp) 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
Mixon v. Sharp, 853 So. 2d 834, 2003 WL 21911190 (Mich. Ct. App. 2003).

Opinion

853 So.2d 834 (2003)

Kevin Conrad MIXON, Appellant,
v.
Ida Beatrice Mixon SHARP, Appellee.

No. 2002-CA-01141-COA.

Court of Appeals of Mississippi.

August 12, 2003.

*836 Earl P. Jordan, for appellant.

Ida Beatrice Mixon Sharp (Pro Se), for appellee.

Before McMILLIN, C.J., THOMAS, MYERS and CHANDLER, JJ.

MYERS, J., for the court.

¶ 1. Beatrice Mixon Sharp filed a petition for modification of custody on June 1, 2000, in the Chancery Court of Clarke County. The chancellor, after several days of testimony, granted Sharp's motion. Sharp's ex-husband, Kevin Conrad Mixon, now appeals the chancellor's decision, asserting the following issues:

I. Whether a material change in circumstance that was adverse to the best interest of the child existed.
II. Whether the chancellor erred in modifying custody by not properly considering *837 and weighing each of the Albright factors on the record.
III. Whether the chancellor erred in awarding Sharp attorney fees in this modification action.

Facts and Procedural History

¶ 2. Mixon and Sharp were divorced by the Chancery Court of Clarke County on June 1, 1994. Simultaneously, Mixon was awarded primary custody of their minor child, Amber Beatrice Mixon. Sharp was granted visitation and ordered to pay child support to Mixon.

¶ 3. From spring of 1998 to June 1, 2000, Sharp did not visit with Amber. Sharp claims this is because Mixon would not allow her to have access to their daughter. Mixon claims that Sharp told him she was moving to Tennessee and could no longer visit with Amber. During this time, Sharp began to volunteer at Quitman Lower Elementary School, the school that Amber attended at the time, admittedly to see Amber. When Amber transferred to another school district, Sharp stopped volunteering at the school. From the time the motion for modification was filed until the hearing on the motion was held, Sharp was allowed to visit with Amber.

¶ 4. Since their divorce, Sharp has been remarried twice, and has lost custody of another child to the Clarke County Department of Human Services. She has also been arrested for public intoxication and indecent exposure. She is currently a part-time student at the University of West Alabama, and has no employment. Sharp's current husband is a construction worker in Texas. Sharp resides in Quitman, Mississippi, and has no plans to move to Texas to be with her husband.

¶ 5. Mixon has also remarried and currently lives in Lauderdale County, Mississippi, with his new wife and her two children. At the time of the divorce, he worked during the day, but since being remarried, he has switched to working nights.

¶ 6. The chancellor heard testimony, and in a memorandum opinion, granted Sharp's motion for modification. Sharp now has primary custody of Amber, with Mixon having visitation. Mixon must now pay child support to Sharp.

Standard of Review

¶ 7. Our standard of review in child custody cases is well settled. "[T]he chancellor must either commit manifest error, act in a way that is clearly erroneous, or apply an erroneous legal standard before this Court can reverse." Passmore v. Passmore, 820 So.2d 747, 749(¶ 5) (Miss. Ct.App.2002).

Legal Analysis

I. Whether a material change in circumstance which was adverse to the best interest of the child existed.

¶ 8. A change in child custody should only be undertaken when there is a material change in circumstances which would suggest that a change of custody is in the best interest of the child. Before undertaking a possible change of custody, the court must first identify the specific material changes in circumstances, which make such a consideration appropriate. Sturgis v. Sturgis, 792 So.2d 1020, 1023(¶ 13) (Miss.Ct.App.2001). We find that no such material changes in circumstances exist in this case.

¶ 9. The chancellor found the following to constitute a material change of circumstances which adversely affects Amber: Mixon's alleged interference with Sharp's visitation, Mixon's work schedule, and problems between Amber and her step-siblings. We will speak to each of these criteria individually.

*838 ¶ 10. First, the chancellor found that Mixon interfered and prevented Sharp from exercising her visitation with Amber. In Ash v. Ash, 622 So.2d 1264, 1266 (Miss. 1993), the Supreme Court of Mississippi held that a mother's refusal to allow the child's father to visit with the child did not constitute a material change in circumstances. "The better rule would be for a chancellor to enforce contempt orders through incarceration, when necessary, to insure compliance with custody provisions rather than resorting to a change of custody" Id. If the chancellor found Mixon has purposely refused to allow Sharp to visit Amber, the chancellor should have incarcerated Mixon. Changing child custody is not appropriate punishment for contempt.

¶ 11. Next, the chancellor found "[Mixon]'s work schedule is not conducive to his providing primary care for Amber...." Mixon did not change his schedule until after he re-married. Until then, he worked days so that he would be able to take care of Amber when she was home from school. We are not aware of any Mississippi cases that directly apply to this case, but guidance may be gained by looking to the case law of other jurisdictions.

¶ 12. In Alabama, a material change in circumstances was found where a custodial parent, after the divorce, began working nights and had no safe and suitable supervision for the child. Davis v. Davis, 451 So.2d 316, 319 (Ala.Civ.App.1984).

¶ 13. In In re Marriage of Whipp, 265 Kan. 500, 962 P.2d 1058 (1998), the Kansas Supreme Court found that a material change of circumstances did occur when the father, who had custody of the daughter, began working nights and moved out of housing he shared with a Ms. McGowan. However, the court appears to have placed emphasis on the fact that the child would no longer be supervised by McGowan, with whom the child had built a close relationship. Id. at 1063-64.

¶ 14. A Missouri case is particularly relevant to the situation before us today. There, a noncustodial father was asserting, inter alia, that the fact the mother began working nights was a material change in circumstances, and the court should therefore award custody of the child to him. Henderson v. Henderson, 622 S.W.2d 7, 10 (Mo.Ct.App.1981). The court found that this was not a material change in circumstances since the mother made adequate arrangements for the care of the child in her absence. Id.

¶ 15. These cases suggest that as long as the child is safe and supervised while the parent must be at work, a change in a work schedule is not a material change in circumstances. That is this Court's holding as well.

¶ 16. Finally, the chancellor thought that the problems Amber had with her step-sister also constituted a material change in circumstances. While our research did not result in any case law to speak to either side of this argument, we hold that such problems are typical in families, let alone step-families, and are best solved as an internal matter within the family. Holding that failure of sibling or step-siblings to get along peacefully is a material change of circumstances would be a dangerous precedent which this Court is not prepared to make.

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Bluebook (online)
853 So. 2d 834, 2003 WL 21911190, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mixon-v-sharp-missctapp-2003.