Before Bridges, C.j., Herring, And Payne, JJ.
The opinion of the court was delivered by: Herring, J
RICHARD A. MILLER, APPELLANT v. CYNTHIA Y. MILLER, APPELLEE
THIS OPINION IS NOT DESIGNATED FOR PUBLICATION AND MAY NOT BE CITED, PURSUANT TO M.R.A.P. 35-B
DATE OF JUDGMENT: 08/05/96
TRIAL JUDGE: HON. EDWARD C. PRISOCK
COURT FROM WHICH APPEALED: WINSTON COUNTY CHANCERY COURT
NATURE OF THE CASE: CIVIL - CUSTODY
TRIAL COURT DISPOSITION: MOTION TO CHANGE CUSTODY DENIED.
DISPOSITION REVERSED AND RENDERED AND REMANDED - 4/21/98
Richard Miller appeals a decision of the Chancery Court of Winston County, Mississippi, in which the chancellor denied his motion for a change of custody of Megan Miller, the minor child of Richard Miller and Cynthia Miller. We reverse and render and remand for further proceedings.
Richard Miller and Cynthia Miller obtained a divorce on the ground of irreconcilable differences in 1988. At the time of the divorce, the parties had three minor children, Clarisa, Andrew, and Megan. Custody of the three children was awarded to Mrs. Miller by agreement. Clarisa and Andrew have attained majority, and their custody is not in dispute. The youngest child, Megan Miller, resided with her mother until some time in August, 1993, when Megan began living with her father and grandmother, Ruth Miller. She was eight years old at the time. In February, 1996, Mrs. Miller demanded that Megan return to her home. Megan lived from that point on with her mother except for a week in May, 1996, when Mr. Miller obtained a temporary restraining order allowing Megan to reside with him while she completed her last days of her fourth grade year at Louisville Elementary School. The restraining order was issued because Mrs. Miller had removed the child from school without notice to Mr. Miller and attempted to enroll the child in a school in Neshoba County just before the end of the school year, thereby raising the possibility that Megan would not be able to successfully complete her fourth grade curriculum.
On April 26, 1996, Mr. Miller filed a petition to change custody of Megan from Mrs. Miller to himself. He based his request upon the allegation that a material change in Mrs. Miller's circumstances occurred which adversely affected Megan and warranted a change in custody. On July 29, 1996, and August 2, 1996, the Chancery Court of Winston County heard testimony and received evidence on Mr. Miller's petition. The opinion and judgment of the chancery court denying a change of custody was filed on August 6, 1996, and Mr. Miller perfected his appeal to this Court. Mrs. Miller did not file a brief and otherwise made no response to Mr. Miller's appeal.
At the hearing before the trial court, Mr. Miller explained how Megan came to live with him for almost three years although custody of the child had been originally awarded to his former wife. It is undisputed that during this period, Mrs. Miller began seeing a man named Barney Yates. When Mr. Yates visited Mrs. Miller at her home, the two required Megan to go to bed early or go to her room. Megan complained to her father about this arrangement, and the parties eventually agreed that Megan would stay with Mr. Miller and his mother when Barney Yates visited. The visits became so frequent that Megan took up permanent residence with Mr. Miller and his mother in August, 1993. Mr. Miller's mother was retired, and the living arrangements worked well for all parties. Mr. Miller would take Megan to school, and Ruth Miller, the grandmother, would pick her up from school in the afternoon. According to Mr. Miller, his former wife's visits with Megan were sporadic. Occasionally, she would visit on a daily basis. At other times she would not visit with Megan for two to three weeks. On the other hand, Mrs. Miller testified that she "absolutely was with her daughter twenty-four hours a day." She also testified that she and Barnes Yates had no sexual relationship, although she was in love with him.
While residing with her father, Megan participated in the local chapter of the Girl Scouts, attended church on Sundays, and played on a softball team. Mr. Miller stated that when Megan was living with him, she had a healthy relationship with Mrs. Miller, although she spent the night with her mother on only five or six occasions. Mr. Miller testified that he maintained a good relationship with Mrs. Miller prior to February, 1996, and would help her when she needed assistance with household chores or car repairs.
Mr. Miller testified that a few months prior to August, 1993, when the child came to live with him, Mrs. Miller became very nervous and had frequent "break downs" and "nervous rages." He testified that to his knowledge, she had been given medication for her nerves but refused to take the medicine and often became hysterical. He described Mrs. Miller as having a "split personality." At times, according to Mr. Miller, she would pull Megan's hair or dig her finger nails into Megan's skin.
According to his testimony, several events led Mr. Miller to believe that he should retain custody of Megan. One such event occurred on February 13, 1996. On that day, Mrs. Miller was having car trouble, and Clarisa Flake, the oldest child of the parties, picked her mother up from work. Clarisa testified that she and Mrs. Miller had picked up Megan from school, and Megan was to appear in a school program that evening. Thus, since Megan was living with her grandmother and father at the time, Clarisa, Mrs. Miller, and Megan were driving over to Mr. Miller's home to pick up a poodle skirt that Megan needed for the school program. On the way, Clarisa and Mrs. Miller got into an argument. Clarisa stated that her mother informed her that she had legal custody of Megan and that Megan was going to live with her in the future. Clarisa stated that her mother opened the car door while she was driving and eventually got out of the vehicle. Clarisa stated that her mother would not accompany her to the school and that Mrs. Miller threatened to have her "locked up" if she insisted on taking Megan to Mr. Miller's house against her wishes. Clarisa testified that she disregarded her mother's statements and took Megan straight to her father's home, picked up the skirt, and took Megan to the school. Meanwhile, Mrs. Miller went to the police station to file a kidnaping charge against her daughter, Clarisa. Clarisa testified that she informed her mother where she was taking Megan, and that her mother knew ...