Sherry Ann Campbell Graves Page v. Bryan Edward Graves

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2018-CA-00140-COA
SHERRY ANN CAMPBELL GRAVES PAGE APPELLANT
v.
BRYAN EDWARD GRAVES APPELLEE
DATE OF JUDGMENT: 11/15/2017
TRIAL JUDGE: HON. JOHN C. McLAURIN JR.
COURT FROM WHICH APPEALED: RANKIN COUNTY CHANCERY COURT
ATTORNEYS FOR APPELLANT: JOHN SAMUEL GRANT IV
CONNIE MARIE SMITH
ATTORNEYS FOR APPELLEE: CHRISTOPHER TABB
BRYAN EDWARD GRAVES (PRO SE)
NATURE OF THE CASE: CIVIL - DOMESTIC RELATIONS
DISPOSITION: REVERSED AND REMANDED - 09/10/2019
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
BEFORE CARLTON, P.J., GREENLEE AND McCARTY, JJ.
CARLTON, P.J., FOR THE COURT:
¶1. Sherry Ann Campbell Graves Page appeals from an order of the Rankin County
Chancery Court dismissing her motion for modification of child custody. Sherry filed a
motion to reconsider, which the chancellor denied.
¶2. Sherry now appeals, arguing that the chancellor erred by: (1) dismissing the case,
despite the fact that Sherry presented sufficient evidence on every required element for
custody modification, and (2) failing to consider the totality of the circumstances.
¶3. We find that the chancellor erred in dismissing Sherry’s motion for modification of
child custody, and we reverse and remand this case for further proceedings consistent with
this opinion.
FACTS
¶4. Sherry and Bryan Graves married on July 10, 2004. During the marriage, Sherry gave
birth to two daughters: Anna in 2007 and Sarah in 2010.1 Anna and Sarah were both
diagnosed with autism and have special needs.
¶5. On October 18, 2013, Sherry and Bryan constructively separated. On May 14, 2014,
Sherry and Bryan entered a joint motion consenting to a trial and a divorce on the grounds
of irreconcilable differences. Sherry and Bryan agreed to allow the court to decide the
following issues: child support, child custody, alimony, guardian ad litem (GAL) fees,
property division, and payment of debts. On May 16, 2014, the chancellor appointed a GAL
“to investigate, find facts, and make an independent report to the [chancellor].”
¶6. A judgment of divorce was entered on July 24, 2014. In the judgment, the chancellor
ordered that the “Marital Dissolution Agreement” be incorporated into the judgment of
divorce. The Marital Dissolution Agreement set forth the following child custody
arrangement:
[Bryan] shall have legal and physical custody of the minor children subject to
[Sherry’s] reasonable visitation. [Sherry] shall receive one week each month
to be mutually agreed upon by the parties. [Sherry’s] visitation shall take place
in the city in which the children are resided which is anticipated to be Monroe,
Louisiana. [Sherry’s] visitation shall be supervised by [Bryan] or a member
of [Bryan’s] family or someone approved by [Bryan]. In the event [Sherry] is
unable to visit with the children in the home of [Bryan] or [Bryan’s] parents,
then [Sherry] shall return the children to their home at 8:00 p.m. each evening.
[Sherry] shall be responsible for scheduling and arranging all visitation periods
with the minor children.
1
For privacy purposes, the minor children’s names have been changed.
2
After the entry of the judgment of divorce, Sherry moved to Virginia and eventually married
David Page. As anticipated by the Marital Dissolution Agreement, Bryan moved Anna and
Sarah to Monroe, Louisiana. The record reflects that Bryan’s stepmother and sister both
worked as special education teachers and had agreed to help him care for Anna and Sarah.
¶7. Less than one year later, on May 12, 2015, Sherry and Bryan entered into an agreed
order of visitation which granted Sherry unsupervised visitation with Anna and Sarah. The
chancellor also lifted the requirement that the visitation occur in Monroe. The order stated
that “Bryan shall continue to have physical and legal custody of the minor children,” and the
order provided Sherry with approximately three months for summer visitation, stating:
“Sherry [s]hall have the children for the summer beginning the 10th day after school recesses
and ending [seven] days prior to school resuming.” The chancellor also ordered that
“[d]uring summer visitation, Sherry shall enroll the children in therapy in Virginia
comparable to what they are receiving in Monroe, and shall provide the therapists’ names and
addresses to Bryan so that he can give that information to the Monroe therapists.”
¶8. In May through August of 2015, the girls lived with Sherry and her husband, David,
in Virginia, per the modified visitation order. In August 2015, Bryan and Sherry agreed that
Anna and Sarah would remain in Virginia with Sherry indefinitely. This arrangement
ultimately lasted from May 2015 until September 2017—just under two-and-a-half years.
During this time, Anna and Sarah attended school in Virginia and continued to receive
therapy.
¶9. While Anna and Sarah were living in Virginia, Bryan moved from Monroe to Clinton,
3
Mississippi. He lived with a friend for approximately a year, and then he moved into the
home of his girlfriend, Stacy, who also lived in Clinton.
¶10. At the end of August 2017, Anna and Sarah started back to school. The record
reflects that after attending their first week of school, Bryan and Stacy took Anna and Sarah
on vacation to Florida. During this trip, which occurred in September 2017, Anna and Sarah
met Stacy for the first time. At the end of the trip, Bryan refused to let the girls return to
Virginia; instead, he moved Anna and Sarah in to live with him and Stacy. Bryan also
enrolled Anna and Sarah in school in Clinton.
¶11. Approximately one month later, Bryan and Stacy broke up. Bryan and the girls moved
out of Stacy’s house and into an apartment. The record reflects that Bryan’s new apartment
was located in a different school district than Stacy’s house, so Bryan enrolled Anna and
Sarah in another school.
¶12. On October 3, 2017, Sherry filed a motion for modification of child custody. In the
motion, Sherry alleged that since the May 2015 agreed order of visitation, “there has been
a material change in circumstances which adversely affects the minor children.” Sherry
stated that Anna and Sarah had lived with Sherry and David in Virginia from May 13, 2015,
until September 2017.
¶13. A trial was held on the matter on November 1, 2017. During Sherry’s case-in-chief,
the chancellor heard testimony from Anna and Sarah’s special education teacher in Clinton;
their teacher/therapist in Virginia; a teacher’s assistant in Virginia; Bryan (adversely); and
Sherry. We discuss this testimony in detail below.
4
¶14. After presenting their case-in-chief, Sherry’s attorney rested. Bryan then moved to
dismiss the case. After hearing arguments from the parties, the chancellor granted Bryan’s
motion and found as follows: “I do not find that there has been a substantial and material
change in circumstances adverse to the welfare of these children in their present situation,”
explaining “[t]he circumstances that were existing at the time of the divorce with regard to
these children are very similar to what’s existing today[.]”
¶15. On November 15, 2017, the chancellor entered an order memorializing his ruling
granting Bryan’s motion to dismiss and dismissing Sherry’s motion for modification with
prejudice. The chancellor held that Sherry “has failed to prove that there has been a material
change in circumstances that adversely affects the minor children herein.”
¶16. Sherry filed a motion to reconsider and argued that, among other things, the chancellor
should not have dismissed the case when the evidence showed Bryan had voluntarily allowed
the children to be in Sherry’s care for more than two years before he took them back. Sherry
also asserted that the chancellor failed to consider the totality of the circumstances. After
hearing arguments, the chancellor denied Sherry’s motion to reconsider.
¶17. Sherry now appeals.
STANDARD OF REVIEW
¶18. On appeal of a chancellor’s denial of motion for modification of child custody based
on a material change in circumstances, “[t]his Court employs a limited standard of review
in child-custody cases and will affirm findings of fact by chancellors when they are supported
by substantial evidence unless the chancellor abused her discretion, was manifestly wrong,
5
clearly erroneous or an erroneous legal standard was applied.” Carter v. Carter, 204 So. 3d
747, 756 (¶37) (Miss. 2016) (internal quotation mark omitted). We recognize that “findings
of fact made by a chancellor may not be set aside or disturbed upon appeal if they are
supported by substantial, credible evidence.” Id. We review questions of law de novo.
Campbell v. Watts, 192 So. 3d 317, 318 (¶5) (Miss. Ct. App. 2015).
¶19. In their appellate briefs, both Sherry and Bryan argue that the standard of review for
the chancellor’s denial of Sherry’s motion for modification of child custody based on a
material change in circumstances is de novo. They assert that where the chancellor failed to
consider the totality of the circumstances in a modification action, this Court has held that
“the chancellor applied an incorrect, or rather, an incomplete legal standard.” Powell v.
Powell, 976 So. 2d 358, 362 (¶15) (Miss. Ct. App. 2008).
DISCUSSION
¶20. Sherry argues that the chancellor erred in dismissing her motion for modification of
child custody. Sherry maintains that she presented sufficient evidence on every element of
her claim showing that a material change in circumstances had occurred in the custodial
home, and that the change adversely affected Anna and Sarah. Sherry also argues that the
chancellor failed to consider the totality of the circumstances when determining whether a
material change in circumstances occurred.
¶21. Mississippi Rule of Civil Procedure 41(b), which governs involuntary dismissals,
“applies in actions tried by the court without a jury, where the judge is also the fact-finder.”
All Types Truck Sales Inc. v. Carter & Mullings Inc., 178 So. 3d 755, 758 (¶13) (Miss. Ct.
6
App. 2012) (internal quotation marks omitted). “A judge should grant a motion for
involuntary dismissal if, after viewing the evidence fairly, rather than in the light most
favorable to the plaintiff, the judge would find for the defendant.” Id. (quoting
Gulfport-Biloxi Reg’l Airport Auth. v. Montclair Travel Agency Inc., 937 So. 2d 1000, 1004-
05 (¶13) (Miss. Ct. App. 2006)). “The court must deny a motion to dismiss only if the judge
would be obliged to find for the plaintiff if the plaintiff’s evidence were all the evidence
offered in the case.” Id.; see also Shows v. Cross, 238 So. 3d 1224, 1232 (¶33) (Miss. Ct.
App. 2018).
¶22. On appeal, we review a chancellor’s decision to grant a Rule 41(b) dismissal in a
modification of child custody action “under the deferential substantial-evidence/manifest-
error standard.” Shows v. Cross, 238 So. 3d at 1232 (¶33). “Under this standard, we must
affirm unless the chancellor applied an incorrect legal standard or made manifestly wrong
or clearly erroneous factual findings.” In re Bowling, 155 So. 3d 907, 911 (¶21) (Miss. Ct.
App. 2014).
¶23. This Court has recognized that “[a] modification of custody is warranted when the
moving parent successfully shows (1) that a material change of circumstances has occurred
in the custodial home since the most recent custody decree, (2) that the change adversely
affects the child, and (3) that modification is in the best interest of the child.” Voss v.
Doughty, 242 So. 3d 952, 956-57 (¶13) (Miss. Ct. App. 2018) (quotation omitted). “A
change in circumstances is a change in the overall living conditions in which the child is
found, and the totality of the circumstances must be considered.” Gainey v. Edington, 24 So.
7
3d 333, 336 (¶11) (Miss. Ct. App. 2009) (citation and internal quotation marks omitted).
“[T]he material change in circumstances must [also] be unforeseeable at the time of the
original decree.” Giannaris v. Giannaris, 960 So. 2d 462, 469 (¶12) (Miss. 2007). We
recognize that “[m]atters involving child custody are within the sound discretion of the
chancellor.” Heisinger v. Riley, 243 So. 3d 248, 256 (¶30) (Miss. Ct. App. 2018).
¶24. As the parent requesting a change of child custody, Sherry bears the burden of proving
a material, adverse change in circumstances by a preponderance of the evidence. Voss, 242
So. 3d at 956 (¶13). If the movant meets her burden of showing a material, adverse change
in circumstances, the chancellor must then “apply the Albright2 factors to determine whether
modification is in the child’s best interest.” Id. “However, if there has been no material,
adverse change in circumstances, the Albright factors need not be addressed.” Id. at 957
(¶13).
¶25. We now turn to review the testimony and evidence presented at trial during Sherry’s
case-in-chief. The record reflects that the chancellor first heard testimony from Amanda
Langford, Anna and Sarah’s special education teacher when they briefly lived with Bryan
and Stacy in Clinton. (Amanda testified that at the time of trial she was aware that Anna and
Sarah had moved to a different school district.)
¶26. Amanda stated that both Anna and Sarah were autistic, and she explained that Sarah
utilized a feeding tube for nutrition. Regarding Sarah’s feeding tube, Amanda testified that
Sarah was not fed or provided with anything to drink during the school day. As far as
2
Albright v. Albright, 437 So. 2d 1003, 1005 (Miss. 1983).
8
academics, Amanda testified that she reviewed Anna’s and Sarah’s school records from
Virginia, and she stated that they would be following basically the same academic program
in Mississippi.
¶27. Sherry’s counsel asked Amanda how well Anna and Sarah adjust to change, and
Amanda answered: “Not very well. I mean, they did good, you know, coming in [to a new
school], as good as could be expected.” When Sherry’s counsel asked if there was ever a
time when she was concerned about the girls, Amanda answered, “No.” However, when
asked if there was ever a time when she felt that Anna and Sarah did not have on appropriate
attire, Amanda answered, “Yes.” Amanda explained that when the weather turned cold,
Anna and Sarah did not have on coats or long pants. Amanda testified that she contacted
both Bryan and Stacy “several, several times” regarding her concerns about the girls’ hygiene
and clothing. Amanda stated that this problem was eventually cured.
¶28. Amanda also testified regarding a time when she noticed that Anna and Sarah
exhibited poor hygiene, explaining that “four weeks ago,” she observed that their hair and
teeth had not been brushed. Amanda testified that she recalled two particular days when
Sarah arrived at school “very, very exhausted and she could hardly keep her eyes open.”
Amanda approached Bryan about Sarah’s exhaustion and, according to Amanda, Bryan said
“that [Sarah] had stayed up late” playing on her iPad “and that she would probably be tired,
try to let her rest.” On cross-examination, Amanda confirmed that as a teacher, she is
obligated to contact the Department of Human Services (DHS) if she has concerns about
what is happening with children under her care. Amanda testified that she did not contact
9
DHS regarding Anna and Sarah.
¶29. Amanda testified that at an individualized education program (IEP) meeting she
attended with Bryan, along with an administrator, a speech therapist, an occupational
therapist, and a general education teacher, Bryan made a comment suggesting that the school
staff in attendance presently had vodka, and not water, in their cups. Amanda also testified
when Bryan dropped the girls off at school, she has heard loud music playing in his vehicle,
which Amanda agreed would be a stimulation for Anna and Sarah. Amanda testified that
Stacy has also dropped off Anna and Sarah at school.
¶30. The chancellor next heard from Michele Samuels, an autism teacher and Applied
Behavior Analysis (ABA) therapist hired by Sherry to work with Anna and Sarah while they
lived in Virginia. Michele testified that she met with Anna and Sarah after school. Michele
stated that in September 2015, she began working with the girls twice a week. Michele
testified that insurance paid for her services for approximately a year, and then Sherry and
David paid her “out of their . . . private pocket” to work with the girls as an in-home tutor.
Michele stated that Sherry “was very involved” in Michele’s treatment with the girls.
¶31. Michele described Anna as possessing language-development ability, but she
explained that Anna “didn’t use a lot of language to communicate. She did a lot of verbal
stem scripting. She would remember movies and videos and she would recite things over and
over again. It was kind of hard to engage her in conversation.” Regarding Anna’s behavioral
issues, Michele testified that she “had a little bit of aggression. [Anna] was aggressive with
me . . . [and] with her sister. Getting her to do things was difficult . . . a lot of
10
noncompliance. If you asked her to do things, she would wander away or she would sit on
the floor.” Anna also tended to “bolt,” or run off.
¶32. Michele testified that she worked with Anna on “answering questions” and explained
that “if I asked her things, you know, like [what did] you have for dinner, or [what did] you
have for lunch, she would properly answer me versus just scripting or talking about
something that she was pretending, because she has a pretty good imagination.”
¶33. Michele explained when she initially began working with the girls, she performed a
functional life-skills assessment on Anna, which revealed that Anna “wasn’t doing things
that a normal child of her age would be doing.” As a result, Michele worked with Anna on
“washing her face, brushing her teeth, chores, cleaning the table, picking up your toys,
making a bed, sweeping the floor, those kinds of things.”
¶34. Michele testified that during her time working with Anna, Anna “started to use a lot
more language, and she seemed to engage more with activities.” Michele explained that
Anna “liked to do a lot of solitary play, so she would play more with me. She would ask
more questions. She was using language more appropriately, not just kind of scripting or
singing or—she became a little more social. She would seek out others to interact with.”
Michele also testified that Anna’s problem with bolting “went away for a while.”
¶35. As far as her work with Sarah, Michele stated that for the first month or two, Sarah
“didn’t really want to do anything, so we had a lot of what we would say temper tantrums,
a lot of laying on the floor, a lot of screaming, a lot of crying. She didn’t want to come to the
table. She didn’t really want to interact with me.” Michele also testified that when she first
11
began working with Sarah, Sarah was not potty trained, and so she worked with her on
getting her out of pull-ups and into underwear. Michele stated that Sarah also had a problem
with spitting, explaining that if she would work with Sarah for an hour, there would be
approximately fifteen to twenty spitting episodes during that time.
¶36. Michele testified that during her work with Anna and Sarah, they met many goals and
“were using language a lot more appropriately.” She eventually began working with the girls
on more academic-type activities as well.
¶37. When asked by Sherry’s counsel if Michele was ever concerned about whether Sherry
was properly engaged with the children’s care and therapy, Michele answered: “Never.”
Regarding Anna’s and Sarah’s hygiene, Michele testified: “They were clean. We always . . .
worked on them washing their face by themselves and doing things by themselves, but they
were clean.” Michele stated that she never witnessed Sherry discouraging the girls from
becoming independent.
¶38. Clara Ash testified next. Clara worked as an assistant teacher for children with autism
in Virginia, and she testified that she taught Anna for one school year and Sarah for two
school years.
¶39. Clara testified that when Anna first came to her classroom “she was delightful,”
explaining that “there were never any behavior problems. There wasn’t a lot of language,
a lot of meaningful language, from either one of them initially, but we were able to address
all of the objectives and the goals on the IEP with them. They made a great deal of
progress.”
12
¶40. Clara testified that Sarah utilized a feeding tube for nutrition and that Clara personally
participated in feeding Sarah formula by using the tube. Clara testified that during Sarah’s
first year at school, Sarah would vomit after receiving a feeding approximately once every
few weeks but that “there was no regularity in that.” Clara stated that Sarah did not vomit
after feedings during her second year in school. Clara described Sarah as “very happy,
content, willing to learn.” During her testimony, Clara expressed that “children with autism
thrive with consistency.”
¶41. Clara testified that she interacted with Sherry “every single morning and every single
afternoon when she would bring [Anna and Sarah] or pick them up.” Clara stated that “it
was like a [brief] teacher conference” because “we told her every day how the children did.”
Clara testified that “[t]he discussion was always about the children and Sherry wanting to
know how their day was and if we needed anything and if they needed anything.”
¶42. Sherry’s counsel then called Bryan to testify as an adverse witness. Bryan testified
that when he and Sherry were in court finalizing their Marital Dissolution Agreement, she
informed him that “she was leaving to [move] to [Washington,] D.C. to live her dream.”
Bryan stated that Sherry moved that same day, and approximately a week and half later, he
and the girls moved to Monroe. Bryan explained that his stepmother and sister were both
special needs teachers and willing to help Bryan care for Anna and Sarah.
¶43. Bryan testified that he worked as a cover package car driver for UPS and was
stationed in the Jackson, Mississippi metro area. Bryan stated that although he lived in
Monroe, he still worked in Jackson, explaining: “You can’t transfer being a package car
13
driver for UPS. It’s pretty much impossible, unless you know somebody.” Bryan spoke to
his boss about the possibility of a transfer, but he was unable to transfer his job to full time
work in Monroe.
¶44. Bryan testified that in the May 2015 agreed order of visitation, Sherry was awarded
summer visitation with Anna and Sarah from May 13, 2015, until August 7, 2015. As far as
Sherry and Bryan eventually deciding that the girls would remain in Virginia with Sherry,
Bryan testified as follows:
We talked about it, and before we agreed to anything I said I had to fly up
there, look at the . . . living situation that she lived in. I had to meet with the
school, which I did go to the school, met with the principal—I think it was
assistant principal I met with—and a bunch of other teachers about the
curriculum. And I visited Sherry’s house, saw they had their own bedroom,
and . . . that’s when we decided in Virginia, you know, maybe—she said she
straightened up and she’s willing to step up, you know, and do the right thing.
So I was like we’ll go along and see how it works out. She promised to keep
them in therapy and all that kind of stuff. And we were doing this as
parents—we were looking for the best interest of the girls[.]
Bryan testified that he and Sherry also discussed sharing joint physical custody of the girls.
¶45. Bryan testified that after Anna and Sarah moved to Virginia, he left Monroe and
moved back to Clinton to avoid the two-hour commute each way. Bryan stated that he
initially moved into a friend’s house in Clinton. Bryan expressed that when he first moved,
he felt like a temporary residence would be best in case it did not work out for the girls to
remain with Sherry in Virginia and he needed to move back to Monroe with them. Bryan
also testified that he and Sherry discussed the possibility of him moving to Washington, D.C.
in order for the two of them to raise Anna and Sarah together. Bryan said that he went to
Washington, D.C. and visited, but he discovered that he could not transfer his job, so he gave
14
up on the idea. In January 2017, Bryan moved into a house with his girlfriend, Stacy.
¶46. Bryan said that the first year the girls lived in Virginia, he “visited a lot.” During
direct examination, he stated that he did not have any specific recollection of any specific
visit from August 2016 until July 2017. However, Bryan testified that he took Anna and
Sarah to Destin, Florida four times during the time they lived in Virginia. Bryan testified that
in July 2017, he went to Virginia and spent two full days and one night with Anna and Sarah.
¶47. Bryan stated that he and Sherry had discussed venting Sarah before and after feeding
her through the feeding tube. Bryan acknowledged that Sherry “always says” to vent Sarah
before feeding her. Bryan testified that he “never vented [Sarah] . . . in her life,” that he did
not think she needed to be vented, and “there was never a doctor[’s] order to vent her.”
¶48. Bryan also testified during his July 2017 visit with the girls in Virginia, he took the
girls shopping and bought them toys and two pet fish. Sherry’s counsel introduced a
photograph into evidence, which Bryan confirmed was a picture of the things he purchased
for the girls on the shopping trip. This photograph does not appear in the record on appeal.
¶49. Bryan also testified about an incident that occurred during the July 2017 visit.
According to Bryan, prior to meeting Sherry to return the girls to her, Anna and Sarah
screamed and begged for thirty minutes to stay with him. Bryan testified that “[w]hen
[Anna] saw David and Sherry pull up . . . [Anna] got out of the vehicle and ran down the
street away from her mother, to get away from her mother. I had to chase her down and bring
her back, and she was squirming not to go to her mother.” Bryan stated that he asked Sherry
what was going on and asked why Anna was screaming. Bryan explained, “I was very upset
15
at the time because my girls were screaming.” Bryan stated that as follows:
David decided he wanted to approach me, said, I’m going to take care of this.
And I met him around the corner. I asked him what is he going to do, and I
confronted him. He ran and got a cop. I told the cop what was going on. The
cop did nothing to me, so—and I asked Sherry what was going on and I think
that—I can’t remember if that’s when she admitted the girls hadn’t been in
therapy for a while, even though she told me they had been in therapy, said she
was paying for it. Then I found out they weren’t. That’s what she said, so—I
finally ask, What’s going on up here? Are the girls being neglected, abused?
What is going on up here? What is David doing? What are you doing? Why
are they screaming? Why are they running from you? And I knew then that
something was wrong in D.C., and that’s why I was like -- my flight was
leaving out, and I said, all right, we go to the beach in a few weeks. Let me
see what’s going on. Sherry kept denying everything again.
Sherry’s counsel asked Bryan if Bryan thought it was possible that “the fact that [he] hadn’t
seen [his] daughters in nearly a year and the fact that [he] just bought them a carload full of
toys” had any impact on the way they were acting, as far as wanting to stay with him longer.
Bryan answered: “No, ma’am.”
¶50. Bryan testified that when he and the girls arrived in Destin in September 2017, Anna
and Sarah “began begging me to stay with me more; and I said, That’s it. You’re not going
back to your mama’s house. Something’s going on up there and I’ve got to find out what it
is. I have no way to find out because, I mean, I don’t live in Virginia, [and] she [doesn’t] live
down here.” Bryan also testified that this September 2017 trip was the first time Stacy had
met Anna and Sarah.
¶51. As far as supporting the girls, Bryan testified: “I bought every toy they have pretty
much: Their swing set. I bought their gaming station. I buy everything they got. I buy all
their food and everything[.]”
16
¶52. Bryan testified that after he moved out of Stacy’s house, he hired a nanny to help with
the girls. When asked the nanny’s name, he said he could not recall the nanny’s last name,
but that he had known her for years.
¶53. Regarding Sarah’s ability to eat, Bryan testified that doctors at Blair E. Batson
Children’s Hospital performed tests on Sarah’s stomach and the doctors “said she was
perfectly normal. There’s nothing wrong with her. Nothing in her testing. There’s nothing
wrong with her stomach.” Bryan also stated that Sarah “is very capable of eating. She’s
never been told she couldn’t eat, and she’s eaten in front of me. She’s even walked by the
lunchroom at the school and said, Yummy, pointed to the cafeteria when she smelled the
food.” Bryan acknowledged that Sarah does not receive formula at school, and he explained
that Sarah gets out of school at 1:30 p.m. and that he feeds her at 1:45 p.m. Bryan testified:
“[A]s soon as she gets home every single day, that’s the first thing she does. She eats one
fry. Kids don’t have to eat every four hours. A lot of kids go longer. [Anna] goes longer
than that to eat sometimes because she’s not hungry.”
¶54. Sherry’s counsel asked Bryan if it would surprise him to know that Sarah did not gain
weight from July 2014, when the divorce was final, through May 2015—during which time
Sarah lived with Bryan in Monroe. Bryan responded that during that time period he did not
increase the amount of formula Sarah received, explaining: “The doctors write how much
formula she gets a day, and you don’t go every single week to get that done. You have to go
to a specialist to get that done. She was going to see a specialist. The specialist never did
increase it.” Bryan testified that when Anna and Sarah moved to Virginia in May 2015, he
17
asked Sherry to check on getting Sarah more formula.
¶55. Sherry’s husband, David Page, testified next. David testified that he and Sherry had
been married for three years, and for just under two and a half of those years, Anna and Sarah
lived with them. David stated that his thirteen-year-old daughter Kayley also lived with
them. David testified that he and Sherry live in a five-bedroom house, and that Anna and
Sarah each had their own bedroom.
¶56. David described his version of the incident that occurred on July 21, 2017, at the time
that Bryan dropped off Anna and Sarah with Sherry after his visit to D.C. David described
Bryan’s behavior at that time as “volatile,” explaining that he was using foul language in
front of Anna and Sarah.
¶57. Finally, Sherry testified before the trial court. Sherry testified that Anna and Sarah
moved to Virginia to live with her in May 2015 because “Bryan had lost his support system,
his family. He was moving back to Mississippi, was what I understood, and he lost his
support network and couldn’t do it on his own.”
¶58. Sherry testified that from April 2014 through May 2015, Sarah weighed 33 pounds.
Sherry testified that she was alarmed that Sarah’s weight did not change while she was in
Bryan’s care. Sherry testified that after speaking with a pediatrician, she gradually increased
Sarah’s daily caloric intake. According to Sherry, Sarah weighed 55 pounds in August 2017.
As for Sarah’s feeding tube, Sherry explained that venting the tube was important because
venting “relieves the pressure in her stomach and allows her to feel comfortable enough not
to throw up her calories.”
18
¶59. At the close of Sherry’s case-in-chief, Bryan moved to dismiss the case, arguing that
Sherry bore the burden to show a “material change in the circumstances adverse to these
children in the custodial parent’s home or something that’s going on in the children’s life
that’s adverse to them” and that she failed to make such a showing. Sherry argued, however,
that she had met her burden of proving a material change of circumstances and provided as
follows:
The testimony bore out that [Bryan] no longer has that support system
available to him. In fact, [Bryan], when he did get the children back with him
after allowing them to be gone for two and a half years, he moved in with a
woman that he was not married to, whom the children had only known for a
few days at best, who had never met the children of the woman that he moved
in with, then put them in another school. Then within a week, ten days, maybe
two weeks of that moved to a different house, had a different woman taking
care of the children, to which he couldn’t think of her last name for quite
awhile, and then he now is going to be putting them in yet another school as
of tomorrow. Not to mention, the teacher that came in to testify that since
they’ve been back in his custody they’ve come to school without proper attire,
without proper grooming, and have had issues in the classroom that concerned
her as to whether or not they were being properly cared for. So as to meeting
the burden that there’s been a change in his household, there’s been lots of
changes, even since we were here the last time in court.
¶60. After hearing arguments from the parties, the chancellor granted Bryan’s motion to
dismiss. The chancellor explained his ruling as follows:
The circumstances that were existing at the time of the divorce with
regard to these children are very similar to what’s existing today, and it’s a
very tragic situation: that both of these little girls are autistic. They’re special
needs children, and especially with regard to [Sarah] and her eating problems
or eating disorder or eating dysfunction or whatever one would choose to call
it, but that circumstance was existing then and it’s existing today. There’s been
no change there.
[Bryan] had these children for almost a year and then he allowed them
to go and live with their mother, but [Sherry] didn’t do anything about trying
to change custody, and so that fact is really – other than him allowing them to
19
live there doesn’t affect the custody order. The Order that’s sought to be
changed is the one that was entered in 2014.
And, likewise, . . . [Sherry] came down here in September after [Bryan]
had retrieved the children and had elected to keep them pursuant to the custody
order that was in effect and begged him to agree to change it or begged him to
agree to modify it and he wouldn’t do it, and so she left and went back to
Virginia and her life there and left the children here with him. And there’s
been no testimony that these children are being abused or neglected or -- or in
any way harmed or that anything has happened to them while they’ve been
here in his custody, either before the voluntary election for them to go to
Virginia or since they have returned to his rightful custody. Because until the
custody order is changed, either through an agreement of the parties or through
a contested decision by this court, the custody order that’s in effect is the one
that was rendered in 2014.
And I do not find that there has been a substantial and material change
in circumstances adverse to the welfare of these children in their present
situation. Very little to me has changed since this custody order was entered
into. And so I have to make that finding before I can conduct an Albright
analysis to determine a change of custody. I do not make that finding; and so
because I am unable to make that finding, the motion to dismiss be and same
is hereby granted.
After the chancellor stated his ruling from the bench, the following exchange occurred
between the chancellor and Sherry’s attorney:
[ATTORNEY]: Your Honor, to clarify for the record, it’s this court’s
ruling that Mr. Graves moving in with someone to who
he’s not married with -- married to[.]
THE COURT: Well, he’s not living there now.
[ATTORNEY]: And immediately moving again and moving these girls’
school again and showing complete instability and
having no one to help him care for these children, even
someone that he doesn’t know their last name, a teacher
that testified that the kids were unkempt, to have lost and
found coats because -- and were getting no sleep -- under
his care, the court finds that that doesn’t even constitute
a change in circumstances?
THE COURT: Well, those -- those things are things that were thrown
20
out, but the court does not believe that those are
substantial and material changes adverse to their welfare
that would justify a change of custody. The court -- he
has hired a nanny -- Mr. Graves has hired a nanny to help
him with these children. Mrs. Page hired a nanny to help
her keep them during the summer when she had them. I
don’t see what the difference is. These children are
special needs children and they need help and assistance,
and both of these parties have reached out to other people
to help them with these children. The teacher said that
one day they came to school and a cold snap had
occurred and they didn’t have proper coats and they
found some to borrow from lost and found, and there was
never any other episode or instance discussed about them
not having proper clothing.
[ATTORNEY]: She said several times she had to reach out, was her exact
testimony.
THE COURT: Well, I don’t recall that, but even so I don’t think that’s
-- the controlling fact or the controlling idea is that she
did not -- if a teacher had thought that these children
were so neglected or abused that a material change of
circumstances adverse to their welfare had occurred, she
didn’t do anything about it. She didn’t call DHS. She
didn’t report it to anybody, and so therefore, you know,
I have to accept -- the actions speak louder than words;
and she didn’t take any action to do anything to rectify
what she would have -- if she perceived it to be such an
adverse situation, she didn’t do anything to cause DHS to
become involved.
[ATTORNEY]: Your Honor, DHS . . . requires abuse, and a material
change in circumstances does not require abuse. It’s a
completely different standard.
THE COURT: It does not require abuse necessarily, but it requires
adverse effect; and these children are in the same boat
today they were in when these parties got the divorce.
[ATTORNEY]: Except now they’re in a very unstable, moving
environment. Continuously moving. They’re going to
21
change schools again tomorrow.
THE COURT: Well, they would have to change schools again tomorrow
if they go back to this lady.
[ATTORNEY]: To go back to where they have been for two and a half
years.
THE COURT: . . . I’ve already made the ruling and the ruling stands,
and that’s the ruling and judgment of the court.
¶61. As stated, Sherry filed a motion for reconsideration, the chancellor held a hearing on
the motion on December 13, 2017. The chancellor ultimately denied Sherry’s motion and
held as follows:
The problem is [that Sherry’s] home was not the custodial home, [Bryan’s
home] was; and so whatever happened in [Sherry’s] home is really immaterial
to whether or not a material change of circumstances occurred, because
[Bryan], for whatever reason, allowed these children to remain with her. But
when he determined that things were happening in Virginia that were not in
their best interests and he was the custodial parent, he came and got them back.
And so for those reasons and for the reasons that the court explained in its
initial opinion, the motion for reconsideration be and same is hereby denied.
¶62. After reviewing the evidence and testimony presented, we now turn to discuss whether
Sherry met her burden of proving by a preponderance of evidence that a material, adverse
change in circumstances occurred.3 The first factor we examine is whether a material change
of circumstances has occurred in the custodial home since the most recent custody decree.
In the present case, the original custody decree (the July 24, 2014 judgment of divorce that
incorporated the Marital Dissolution Agreement) set forth that Bryan would have legal and
3
In her reply brief, Sherry points out that Bryan’s pro se appellate brief contains no
citations to the record. Mississippi Rule of Appellate Procedure 28(f) provides that “All
briefs shall be keyed by reference to page numbers (1) to the record excerpts filed pursuant
to Rule 30 of these Rules, and (2) to the record itself.”
22
physical custody of Anna and Sarah, subject to Sherry’s reasonable visitation. The
Agreement also anticipated that Anna and Sarah would reside in Monroe. In May 2015,
Sherry and Bryan agreed to modify the original visitation order to allow Sherry to have
unsupervised visitation with Anna and Sarah and to provide Sherry with three months of
summer visitation with the girls. The May 2015 order stipulated that “Bryan shall continue
to have physical and legal custody of the minor children.”
¶63. The record reflects that although Anna and Sarah did live with Bryan in Monroe for
almost a year, they moved to Virginia and lived with Sherry and David for over two years.
During the two years that Anna and Sarah lived in Virginia, Bryan visited them occasionally
and took them on vacations. In September 2017, Bryan moved the girls from Virginia to live
with him and Stacy in Clinton. The record shows that Anna and Sarah met Stacy for the first
time the same month they moved in to live with her. Bryan also enrolled the girls in school
in Clinton. One month later, Bryan moved Anna and Sarah out of Stacy’s house and into an
apartment and enrolled them in a new school. These facts, when viewed in the totality of the
circumstances, reflect a substantial deviation from the original custody order.
¶64. “[T]his Court has found that [even] a short move can . . . result in a material change
in circumstances.” Pearson v. Pearson, 11 So. 3d 178, 182 (¶9) (Miss. Ct. App. 2009)
(citing Rinehart v. Barnes, 819 So. 2d 564 (Miss. Ct. App. 2002) (father moved from DeSoto
County, Mississippi to Cordova, Tennessee); Massey v. Huggins, 799 So. 2d 902 (Miss. Ct.
App. 2001) (couple resided in Laurel, Mississippi during the marriage; mother moved to
Forrest County, Mississippi then to Petal, Mississippi; father moved to Natchez, Mississippi,
23
then to Long Beach, Mississippi)). However, we recognize that “[t]he distance of the move
is not dispositive as to whether a material change in circumstances has occurred; it is the
effect the move has on the child and the custody arrangement that is dispositive.” Id. at
(¶10); see also Powell, 976 So. 2d at 362 (¶16) (“[R]elocation of the custodial parent does
not alone constitute a material change in circumstances.”). We recognize that “a material
change in circumstances may be established where a custodial parent’s relocation is one of
several supporting factors.” Powell, 976 So. 2d at 362 (¶16).
¶65. In Brocato v. Brocato, 731 So. 2d 1138, 1141 (¶10) (Miss. 1999), the Mississippi
Supreme Court held that the custodial father’s decision to send his son to live with relatives
amounted to a material change in circumstances. The chancellor recognized that the father
“had voluntarily and independently relieved himself of responsibility over” his son. Id.Based in part on that finding, the supreme court “agree[d] that a material change in
circumstances in the custodial home has been shown by a preponderance of the evidence.”
Id. The supreme court conducted an Albright analysis and determined that the child’s bests
interests were served by modifying custody to the mother. Id. at 1143-44 (¶26).
¶66. In Powell v. Powell, 976 So. 2d 358, 360 (¶3) (Miss. Ct. App. 2008), the chancellor
awarded Richard and Amy joint legal custody of their four minor children, with Amy to have
physical custody subject to Richard’s reasonable visitation rights. Richard filed a petition
for modification of child custody. Id. at (¶7). After a trial on the matter, the chancellor
denied Richard’s motion for modification of custody after determining “that there had been
no material change in circumstances adverse to the children.” Id. at 361 (¶9). On appeal, this
24
Court found that “the chancellor failed to consider the totality of the circumstances to
determine whether a material change of circumstances had occurred” and accordingly
reversed the chancellor’s judgment finding that no material change in circumstances had
occurred. Id. at 362 (¶17). In so doing, this Court held that the chancellor failed to give due
consideration to the following “significant factors”: “at the time of trial, the children had
been enrolled in three different schools over the past five years”; Amy’s living situation with
her boyfriend was unstable; “the children testified regarding the difficulties they experienced
in adjusting to their ever-changing educational and social environments”; one of the children
was raped, and Amy was reluctant to provide the child with professional counseling. Id.This Court also held that “the chancellor failed to consider the negative effects of the
unstable environment created by Amy’s nomadic relocation and sporadic employment.
Amy’s intermittent employment resulted in an unstable home environment for the children.”
Id. On remand in Powell, this Court instructed the chancellor to give due consideration to
the facts. Id. at 362 (¶18).
¶67. After our review of the testimony and evidence presented at trial, we find that Sherry
presented sufficient evidence on this factor to survive Bryan’s motion to dismiss and the
involuntary dismissal at the close of her case-in-chief.
¶68. We next turn to examine whether Sherry presented sufficient evidence showing that
this change adversely affected Anna and Sarah. In Gainey, 24 So. 3d at 336 (¶10), this Court
recognized that “only parental behavior that poses a clear danger to the child’s mental or
emotional health can justify a custody change.” However, this Court acknowledged that in
25
Riley v. Doerner, 677 So. 2d 740, 744 (Miss. 1996), the supreme court explained as follows:
when the environment provided by the custodial parent is found to be adverse
to the child’s best interest, and that the circumstances of the non-custodial
parent have changed such that he or she is able to provide an environment
more suitable than that of the custodial parent, the chancellor may modify
custody accordingly. This must be so, for “in all child custody cases, the
polestar consideration is the best interest of the child.”
(Citations omitted). The Riley Court further clarified that “where a child living in a custodial
environment clearly adverse to the child’s best interest, somehow appears to remain
unscarred by his or her surroundings, the chancellor is not precluded from removing the child
for placement in a healthier environment.” Id.
¶69. Our review of the testimony from Anna and Sarah’s teachers in Mississippi and
Virginia showed that the girls do not adjust well to change, due in large part to their autism.
Amanda, Anna and Sarah’s teacher in Clinton, testified that during her time as the girls’
teacher, she contacted both Bryan and Stacy “several, several times” regarding her concerns
about the girls’ hygiene and clothing. Amanda explained that when the weather turned cold,
the girls did not have coats or long pants, but she admitted that eventually the girls did wear
appropriate attire. Amanda also testified that she observed times where the girls arrived at
school without brushing their hair or their teeth, and she recalled two days where Sarah
arrived at school and appeared very exhausted. However, Amanda testified that her concerns
did not rise to a level where she felt the need to contact DHS.
¶70. As far as their hygiene while in Sherry’s care, Anna and Sarah’s teacher in Virginia,
testified that Sherry was extremely involved in Anna and Sarah’s progress. Michele, the
girls’ therapist and tutor, testified that Sherry was very involved in the girls’ treatment and
26
observed that Anna and Sarah were always clean.
¶71. Sherry also testified that while Sarah was in Bryan’s care from April 2014 through
May 2015, Sarah weighed 33 pounds. Sherry testified that she consulted a pediatrician and
increased Sarah’s caloric intake; as a result, Sarah weighed 55 pounds in August 2017.
Sherry also expressed concern that Bryan refused to vent Sarah’s feeding tube, explaining
that venting “relieves the pressure in her stomach and allows her to feel comfortable enough
not to throw up her calories.” Bryan testified, however, that he, too, was concerned about
Sarah’s failure to gain weight, and asked Sherry to check on increasing Sarah’s caloric
intake. Bryan explained that while Sarah was in his care, she saw a specialist regarding her
nutrition, and that specialist never increased the amount of formula Sarah should receive.
¶72. In Hall v. Hall, 134 So. 3d 822, 826 (¶12) (Miss. Ct. App. 2014), this Court affirmed
the chancellor’s finding “that a substantial and material change in circumstances had
occurred since the time of the original custody decree” where the custodial parent: (1) failed
to provide one child with adequate dental care and (2) failed to notify the other parent when
another child suffered a significant dog bite and also failed to seek care for the bite injury
from a medical professional.
¶73. In Stark v. Anderson, 748 So. 2d 838, 843 (¶9) (Miss. Ct. App. 1999), this Court
affirmed the chancellor’s judgment that a material change in circumstances occurred where
the mother neglected some of the child’s needs and failed to provide a stable environment
for the child. The parties in that case, David and Wendy, were married and had one child.
Id. at 840 (¶2). After David and Wendy divorced, the chancellor granted Wendy custody of
27
their six-month old son, and David received reasonable visitation rights. Id. Both David and
Wendy eventually remarried. Id.
¶74. Approximately three years after obtaining their divorce, David filed a petition for
modification of child custody in which he argued that “substantial and material changes had
occurred because Wendy had neglected some of the child’s needs and had failed to provide
a stable environment for the child.” Id. at (¶3). Following a trial on the matter, the
chancellor held that a material change in circumstances occurred and awarded custody to
David. Id. The chancellor set forth the following findings in support of his judgment:
The [c]ourt finds that other than [David,] the entire immediate and extended
family of the minor child . . . are residents of Jackson County, Mississippi, that
the child has been cared for extensively by [David] since birth and that a close
and substantial bond has been established and exists between the child and
[David], and further finds that substantial material changes in circumstances
adverse to the child have occurred while the child was with [Wendy] since the
entry of the Judgment of Divorce herein and that it is the best interest and
welfare of the minor child . . . . based upon the totality of the circumstances
that custody of said minor be transferred from his mother, [Wendy], to his
father, [David].
Id. at 842 (¶9). The chancellor also incorporated into the judgment David’s proposed
findings of fact and conclusions of law. The conclusions of law included several factors that
had adversely affected the child and also several factors that favored a change in custody:
The following factors relative to the mother have negatively impacted the
child: (1) cohabitation of the mother outside of marriage, (2) the excessive
drinking of alcohol by the stepfather, (3) the manic depressive diagnosis and
conduct of the mother, (4) the inappropriate disciplining of the child by the
stepfather, (5) the lies of the mother about material issues, (6) the poor relation
of the child with the stepfather, and (7) the frequent moves of the mother.
Further the following factors relative to the father favor a change in custody:
(1) the father and the child have a close, loving relationship and have had
28
regular frequent visitation, (2) the stepmother has been and is supportive of the
father-son relationship, (3) the stepmother’s close, loving relationship with the
child, (4) the suitability of the home environment of the father, and (5) the
totality of the circumstances regarding the father and the child.
Id. at 842-43 (¶9). Upon review, this Court ultimately held that “[a]fter reviewing the record
and the findings of fact and conclusions of law, we cannot say that the chancellor manifestly
erred in his decision” that a material change in circumstances occurred. Id. at 843 (¶9).
¶75. Additionally, as stated, the material change in circumstances must have been
“unforeseeable at the time of the original [custody] decree.” Giannaris, 960 So. 2d at 469
(¶12). Sherry argues here that the changes in the custodial home were unforeseeable. Sherry
submits that when the chancellor made the initial custody award, the parties anticipated that
Anna and Sarah would reside in Monroe, where Bryan had his support system in place,
including his stepmother and sister who are both special-needs teachers. Sherry asserts that
many changes have occurred since the original custody decree, many of which she and Bryan
did not foresee.
¶76. We review a chancellor’s decision to grant a Rule 41(b) dismissal in a modification
of child custody action “under the deferential substantial-evidence/manifest-error standard.”
Shows, 238 So. 3d at 1232 (¶33). The chancellor in the present case was charged with
determining whether a material change in circumstances occurred, which requires a
consideration of the totality of the circumstances. See Gainey, 24 So. 3d at 336 (¶11). Our
review of the record reflects that given the totality of the circumstances, Sherry presented
sufficient evidence of a material change in circumstances adverse to Anna and Sarah to
survive the Rule 41(b) dismissal. As stated, the standard for granting a Rule 41(b) dismissal
29
is “if, after viewing the evidence fairly, rather than in the light most favorable to the plaintiff,
the judge would find for the defendant.” All Types Truck Sales Inc., 178 So. 3d at 758 (¶13)
(internal quotation marks omitted). Since Sherry presented sufficient evidence to survive a
motion to dismiss at trial, we reverse the chancellor’s judgment of dismissal and remand this
case with instructions for the chancellor to allow the trial to proceed. If, after completion of
the trial and after giving due consideration to the totality of the circumstances, the chancellor
finds an adverse material change, “the next step is to apply the Albright factors to determine
whether modification is in the child[ren]’s best interest.” White v. White, 26 So. 3d 342, 351
(¶28) (Miss. 2010).
¶77. REVERSED AND REMANDED.
GREENLEE, TINDELL, McDONALD, LAWRENCE, McCARTY AND
C. WILSON, JJ., CONCUR. WESTBROOKS, J., DISSENTS WITH SEPARATE
WRITTEN OPINION, JOINED BY BARNES, C.J., AND J. WILSON, P.J.
WESTBROOKS, J., DISSENTING:
¶78. I am of the opinion that the chancellor did not err in dismissing Sherry’s motion for
remodification and respectfully dissent. In Lewis v. Lewis, 974 So. 2d 265, 267 (Miss. Ct.
App. 2008) (citations omitted), the Court held:
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. The burden of proof is on the movant to show by a preponderance
of the evidence that a material change in circumstances has occurred in the
custodial home.
In the ordinary modification proceeding, the non-custodial party must prove:
(1) that a substantial change in circumstances has transpired since issuance of
the custody decree; (2) that this change adversely affects the child's welfare;
and (3) that the child's best interests mandate a change of custody.
30
In considering whether there has been such a change in circumstances, the
totality of the circumstances should be considered. Even though under the
totality of the circumstances a change has occurred, the court must separately
and affirmatively determine that this change is one which adversely affects the
children.
Furthermore, it is well settled that the polestar consideration in any child
custody matter is the best interest and welfare of the child.
....
Before custody should be changed, the chancellor should find that the overall
circumstances in which a child lives have materially changed and are likely to
remain materially changed. . . .”
¶79. Sherry’s petition for modification primarily centers around the time Anna and Sarah
lived with her.4 During the bench trial, both Bryan and Sherry testified that they agreed that
the girls would stay in Virginia with Sherry. Bryan agreed to the move only if Anna and
Sarah’s accustomed living situation, which included therapy and a proper school, would
continue. The move benefitted both parents; it gave Sherry the opportunity to be near and
re-connect with the girls, and it afforded Bryan the flexibility he needed to meet the
obligations of his job at UPS. Bryan testified that he was in school in Monroe and that he
also commuted to UPS in Jackson (which was a two hour drive). He moved from Monroe
to be closer to his job after failed attempts to have his employment transferred to Monroe.
The separation from his step-mother and sister was not derelict but ultimately freed him to
have more time to raise Anna and Sarah.
¶80. Testimony at trial also evinced that Anna and Sarah experienced certain challenges
4
“Traditionally, Mississippi law has held that [] ‘a change in the circumstances of the
non-custodial parent does not, by itself, merit a modification of custody.’” Lewis, 974 So.
2d at 267 (¶15).
31
while in both Bryan and Sherry’s custody. Sherry testified that when Sarah came to live with
her, Sarah’s gaunt appearance disturbed her. Bryan also testified that when he visited Anna
and Sarah, they acted scared as though they were afraid. The chancellor, however, explained
that both little girls are autistic and that the girls would experience and have to overcome
certain challenges no matter who was given parental custody.
¶81. Sherry presented testimony suggesting that Bryan neglected the girls while they were
in his care. Amanda Langford, the girls’ special education teacher testified that she contacted
Bryan and Stacy several times regarding the problems with the girls’ hygiene and clothing.
However, Langford never contacted DHS as required if she had serious concerns about the
children. Moreover, she did not express that either Anna or Sarah exhibited any behavioral
issues that were atypical for autistic children. She also testified that during a cold snap there
was an instance the girls were inappropriately dressed at school. The problem was eventually
cured after Langford spoke with Bryan. This Court has held that “isolated incidents” do not
typically justify a modification of custody. Shows, 238 So. 3d at 1233 (¶36) (Miss. Ct. App.
2018). Further, Langford testified that there was never a time when she was concerned about
the girls while they were in Bryan’s care. A material change must present a genuine danger
to the child.5
¶82. At the close of Sherry’s case-in-chief, Bryan moved to dismiss the case. After hearing
the arguments from both parties, the chancellor granted Bryan’s motion. “In a bench trial,
a judge ruling on a motion for involuntary dismissal under Rule 41(b) must consider the
5
Deborah H. Bell, Bell on Mississippi Family Law § 12.11[5][a], at 396 (2d ed. 2011).
32
evidence fairly, rather than in the light most favorable to the plaintiff.” Shows v. Cross, 238
So. 3d 1224, 1232 (¶33) (Miss. Ct. App. 2018). “If the judge would find for the defendant,
the case should be dismissed.” Id. Further, “[t]he judge should deny a Rule 41(b) motion
only if the judge would be obliged to find for the plaintiff if the plaintiff’s evidence were all
the evidence offered in the case.” Id. (Emphasis added).
¶83. I do disagree with the chancellor’s statement that during the time Sherry had the
children she did not attempt to change custody. The record undisputedly showed that the
chancellor questioned Sherry about how she was able to enroll the children in school when
Bryan had sole legal and physical custody. Sherry responded that, with Bryan’s consent, she
tried to change to joint custody in Virginia, but the court rejected the “paperwork” because
it did not have jurisdiction over Bryan. Sherry admittedly never followed up and pursued the
modification in Virginia. Nor did she file a request for modification in Mississippi while the
girls lived with her in Virginia.6
¶84. This Court has affirmed a chancellor’s denial of a modification of custody, even after
the chancellor was submitted evidence from the child’s father regarding the child’s tooth
decay, the mother’s relationship history, allegations that the mother gave the child a powerful
anti-psychotic drug, and allegations that the mother caused the child stress by refusing to let
the father exercise his visitation rights. Sudduth v. Mowdy, 991 So. 2d 1241, 1244 (¶¶9-14)
(Miss. Ct. App. 2008).
¶85. Under the original custody order, Sherry was awarded supervised visitation. In May
6
Other than Sherry’s undisputed testimony, there was no Virginia court filing
requesting modification of custody in the record.
33
2015, Bryan entered into an agreed order with Sherry allowing her unsupervised visitation
for an extended time period. The girls lived with Sherry for approximately two years, and
she and Bryan agreed that Anna and Sarah would stay with her indefinitely. However, she
did not successfully petition a Virginia or Mississippi court to modify the order. Also, during
the time that the girls were living with Sherry, Bryan continued to visit the children and
support them financially. Bryan testified that only after witnessing the girls were irate,
screaming and apprehensive about going back into their mother’s care, did he decide custody
should continue with him. He cited Sherry’s husband as a cause for concern. This incident
led to Sherry admitting to Bryan that the girls had not been in therapy for a while under her
care.
¶86. The majority opinion reverses on the premise that the chancellor did not consider
other factors that materially changed Bryan’s circumstances and highlights the facts
supporting the decisions in Borcato and Powell. Unlike the father in Borcato, Bryan did not
“reliev[e] himself of responsibility” over Sarah and Anna; he continued to support his
daughters financially and visited them throughout their stay in Virginia. Brocato, 731 So.
2d at 1141 (¶10). While the girls’ extended visitation with Sherry did allow Bryan more
flexibility with work, Sherry benefitted as well. Sherry was allowed to spend time with and
strengthen the bond between her and her daughters, as requested. In Powell, there were
egregious circumstances surrounding the court’s findings of adverse change. The mother,
Amy, was sporadically employed and resided in an unstable residence with her boyfriend and
minor children. Powell, 976 So. 2d at 360 (¶17). While in her custody, one of Amy’s minor
34
children was raped near the boyfriend’s home, and Amy was reluctant to provide counseling
for the child. Id. The majority also cites Riley, where the Court found the custodial
environment, where the child’s mother and stepfather tested positive for illicit drugs, was
clearly adverse to the child. Riley, 677 So. 2d at 744. Here, no substantial evidence was
presented by Sherry to demonstrate that Bryan posed a danger to the children’s mental or
emotional health, and no illegal behavior was alleged.
¶87. While the girls were in Bryan’s custody, Bryan had them in therapy and attending
special education classes. After the short time that the girls were back in Bryan’s care, he
had already enrolled them in school. It was only after Bryan retrieved the girls and
positioned them back in his care, that Sherry sought to modify custody.
¶88. Sherry tried to characterize Bryan as an unstable father who constantly moved from
one location to another. But Bryan explained that after the girls began staying with Sherry,
he temporarily moved into a friend’s house in Clinton, which was closer to UPS. Bryan also
testified that he contemplated moving to Washington, D.C. to co-parent with Sherry until he
discovered that he could not transfer his job. In September 2017, Bryan testified that after
he noticed Anna and Sarah appeared scared of Sherry and her husband, he moved the girls
from Virginia to live with him and Stacy in Clinton. Shortly thereafter, Bryan moved the
girls from Stacy’s home to an apartment and enrolled them into a new school. The appellate
courts have repeatedly held that “the mere moving of one party or the other is insufficient
grounds for modification of child custody.” Lambert v. Lambert, 872 So. 2d 679, 685 (¶24)
(Miss. Ct. App. 2003). “Opportunity and economic necessity transport perfectly responsible
35
adults many miles from their homes.” Id. (citing Spain v. Holland, 483 So. 2d 318, 321
(Miss.1986)). In addition, at the time of the hearing the chancellor acknowledged that Bryan
no longer cohabitated with Stacy, which remedied any material change.
¶89. The chancellor ruled that the same circumstances existing at the time of the divorce
with regard to the children are very similar to what existed at the time of the modification
hearing. He found that there was no testimony that the girls were being abused, harmed or
neglected while in the custody of Bryan. Last, the chancellor also acknowledged that Bryan
retrieved Anna and Sarah and elected to keep them pursuant to the custody order that was
already in effect.
¶90. As an appellate court, “we may not substitute our judgment for the chancellor’s but
must determine if the chancellor’s ruling is supported by substantial evidence.” Norman v.
Norman, 962 So. 2d 718, 721 (¶10) (Miss. Ct. App. 2007) (citing Bower v. Bower, 758 So.
2d 405, 412 (¶33) (Miss. 2000)). Accordingly, I would affirm the chancellor’s decision to
dismiss Sherry’s motion for modification of child custody.
¶91. Therefore, I respectfully dissent.
BARNES, C.J., AND J. WILSON, P.J., JOIN THIS OPINION.
36