Before Thomas, P.j., King, Payne, And Southwick, JJ.
The opinion of the court was delivered by: Thomas, P.j
TERESA ANN BYARS, APPELLANT v. STEPHEN D. ABRAMS, APPELLEE
THIS OPINION IS NOT DESIGNATED FOR PUBLICATION AND MAY NOT BE CITED, PURSUANT TO M.R.A.P. 35-B
DATE OF JUDGMENT: AUGUST 14, 1996
TRIAL JUDGE: HONORABLE ROBERT L. LANCASTER
COURT FROM WHICH APPEALED: LOWNDES COUNTY CHANCERY COURT
NATURE OF THE CASE: CIVIL - DOMESTIC RELATIONS TRIAL COURT DISPOSITION:, APPELLEE AWARDED CUSTODY OF MINOR CHILD
DISPOSITION AFFIRMED - 4/21/98
Teresa Ann Byars appeals an order from the Lowndes County Chancery Court transferring custody of her daughter, Ashley Danielle Abrams, to her ex-husband, Stephen D. Abrams, raising the following issues as error:
I. WHETHER A PREFERENCE STATED BY A CHILD PURSUANT TO MISS. CODE ANN. § 93-11-65 IN A CUSTODY MODIFICATION PROCEEDING IS, ALONE, A SUBSTANTIAL AND MATERIAL CHANGE IN CIRCUMSTANCES WARRANTING A TRANSFER OF CUSTODY.
Finding no error, we affirm.
Abrams and Byars were divorced November 30, 1983. Byars was granted custody of the parties' two minor children, Chris and Ashley. Custody of Chris, the parties' son, was later modified to Abrams on March 6, 1996.
On April 15, 1996, Abrams filed a petition requesting that the court transfer custody of Ashley, then age twelve, to him. At the hearing, Ashley testified outside the presence of the parties. Ashley stated that she was twelve years old, and that she understood the purpose of the hearing was for her to choose whether she wanted to live with her father or her mother. After the chancellor explained to Ashley that she was not required to state a preference, Ashley stated that her preference was her father. When asked why she wanted to live with her father, Ashley stated that she had lived with her mother for twelve years and wanted to spend some time with her dad, and sometimes she and her mother did not get along very well. Ashley stated that she had spent July with her dad and had a good time and got along well with her step-mother and brother. She testified that she had other family that resided near her father. Ashley testified that no one had placed pressure on her to make her decision or to persuade her.
Both Abrams and Byars testified at the hearing. Neither made allegations of unfitness of the other during their testimony.
After hearing all the evidence, the chancellor ruled from the bench that Ashley's preference should be honored and that it was in the best interest of Ashley that her custody be changed to her father. In the modification decree, the chancellor found that there had been a material and substantial change in the parties' circumstances since the entry of ...