Purviance v. Burgess

980 So. 2d 308, 2007 WL 4170879
CourtCourt of Appeals of Mississippi
DecidedNovember 27, 2007
Docket2006-CA-00931-COA
StatusPublished
Cited by6 cases

This text of 980 So. 2d 308 (Purviance v. Burgess) 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
Purviance v. Burgess, 980 So. 2d 308, 2007 WL 4170879 (Mich. Ct. App. 2007).

Opinion

980 So.2d 308 (2007)

Lindy Burgess PURVIANCE, Appellant
v.
Stephen Christopher BURGESS, Appellee.

No. 2006-CA-00931-COA.

Court of Appeals of Mississippi.

November 27, 2007.
Rehearing Denied April 22, 2008.

*309 John R. McNeal, Jr., attorney for appellant.

Julie Ann Epps, Canton, E. Michael Marks, Jackson, attorneys for appellee.

Before MYERS, P.J., BARNES and ROBERTS, JJ.

*310 MYERS, P.J., for the Court.

¶ 1. Lindy Burgess Purviance Spell (Purviance) seeks review of the order of the Hinds County Chancery Court denying her motion for modification of the child custody arrangement as well as the sua sponte orders increasing child support and dissolving the existing joint custody arrangement. Purviance argues the chancellor erred in granting full custody of the parties' minor child, Trettson Burgess (Trettson), to the father, Stephen Christopher Burgess (Burgess). Purviance further argues that the chancellor erred in determining there was not a material change in circumstances warranting a full grant of custody and asserts that she should be awarded primary custody of Trettson.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

¶ 2. Lindy Burgess Purviance Spell and Stephen Christopher Burgess were married on June 19, 1999, and one child was born of the marriage, Trettson McClain Burgess. During their separation, both parties agreed to full joint physical custody, with Purviance serving as the primary custodial parent and Burgess receiving reasonable visitation rights. The parties were granted a divorce on April 5, 2001.

¶ 3. A modification of the original custody agreement was subsequently entered, limiting the visitation of Burgess with the minor child, finding him in contempt of court for failure to pay child support and awarding temporary support payments to Purviance. A final order awarded Purviance child support.

¶ 4. On November 17, 2003, Burgess petitioned the court for modification, seeking custody of Trettson. The court granted his petition and awarded Burgess primary physical custody of the child, giving Purviance standard visitation rights. The chancellor further required Purviance to pay child support.

¶ 5. Over a year later, Burgess sent notice to the court that he had moved to Cullman, Alabama. In response, Purviance moved for a modification of child custody and for a temporary restraining order on June 15, 2005. Purviance also raised concerns that Trettson had suffered various injuries and bruises while in his father's care. Purviance was granted temporary custody, however, the motion for modification was later heard on February 6-7, 2006. The court awarded full physical and legal custody to Burgess, visitation to Purviance, and increased the amount of child support required of Purviance.

¶ 6. This appeal followed. Purviance seeks review of whether the chancellor erred in granting full legal and physical custody of the minor child, Trettson, to Burgess. Purviance also asks this Court to review whether the chancellor's sua sponte increase of child support owed to Burgess constitutes error.

STANDARD OF REVIEW

¶ 7. The standard of review used by this Court in domestic relations cases is limited by the substantial evidence/manifest error rule. Hensarling v. Hensarling, 824 So.2d 583, 586(¶ 7) (Miss.2002) (citing Johnson v. Johnson, 650 So.2d 1281, 1285 (Miss.1994)). This Court will not "disturb a chancellor's findings unless manifestly wrong, clearly erroneous, or if the chancellor applied an erroneous legal standard." Hensarling, 824 So.2d at 586(¶ 7) (citing Johnson v. Johnson, 650 So.2d 1281, 1285 (Miss.1994)).

¶ 8. Further, our standard of review regarding child custody cases is also limited. This Court will reverse a chancellor's decision regarding child custody determinations only when "the decision of *311 the trial court was manifestly wrong or clearly erroneous, or an erroneous legal standard was employed." Hensarling, 824 So.2d at 587(¶ 8); Wright v. Stanley, 700 So.2d 274, 280 (Miss.1997); Williams v. Williams, 656 So.2d 325, 330 (Miss.1995). This Court will always treat the best interest of the child as the "polestar consideration." Robison v. Lanford, 841 So.2d 1119, 1122(¶ 9) (Miss.2003) (citing Hensarling, 824 So.2d at 587(¶ 8)).

¶ 9. "In proceedings to modify custody, `the prerequisites [are] (1) proving a material change in circumstances which adversely affects the welfare of the child and (2) finding that the best interest of the child requires the change of custody.'" Robison, 841 So.2d at 1124(¶ 16) (quoting Brocato v. Brocato, 731 So.2d 1138, 1141(¶ 9) (Miss.1999)). The burden of proof rests with the parent requesting modification. Id.

DISCUSSION

¶ 10. First, Purviance argues that she met her burden of proof by showing a material change in circumstances had occurred. Purviance asserts that she also properly presented evidence that the material change was adverse to the minor child, warranting a modification of the child custody arrangement. Purviance claimed that Burgess and his wife failed to properly supervise and discipline the minor child, causing various injuries to Trettson. Purviance also claimed her child was at risk of suffering mental and emotional damage if Trettson remained in the custody of his father, Burgess.

¶ 11. Purviance further asserted that both Burgess and his wife failed to cooperate with Purviance, causing her to be increasingly isolated from Trettson. Purviance also testified at trial that she had been prevented from staying informed regarding Trettson's medical and educational progress and treatment while in Burgess's care. Purviance additionally argued that the environment provided by Burgess is adverse to Trettson's best interest and that she is able to provide a better home because of her improved circumstances.

¶ 12. Additionally, Purviance argues that the chancellor erred in granting full physical and legal custody of Trettson to Burgess. Purviance argues that the chancellor erred in sua sponte dissolving the joint custody arrangement in favor of full custody to Burgess. Purviance claims the record does not support the chancellor's determination on that issue and the ruling was neither equitable nor just.

¶ 13. Finally, Purviance disputes the chancellor's finding that there has been a material change in circumstances since the original decree awarding child support was entered. As such, Purviance reasons that the chancellor erred in granting additional support to Burgess because no evidence existed regarding additional or increased expenses with regard to Trettson. Purviance contends that the chancellor failed to articulate the factors he relied upon in awarding increased child support to Burgess. Additionally, Purviance argues that the court erred in sua sponte ordering her to pay an increased amount of child support, since Burgess failed to ask for that relief in his pleadings.

¶ 14. Burgess argues the trial court was correct in holding that Purviance failed to meet her burden of proof regarding a material change in circumstances in order to gain full custody of Trettson. Burgess argues that the trial court was correct in finding there was no credible evidence that either he or his wife, Amanda, had abused the minor child in any way. Further, Burgess argues that the trial court simply chose to believe Burgess regarding a particular instance involving his *312

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Cite This Page — Counsel Stack

Bluebook (online)
980 So. 2d 308, 2007 WL 4170879, Counsel Stack Legal Research, https://law.counselstack.com/opinion/purviance-v-burgess-missctapp-2007.