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Carson v. Butler

Court of Appeals of Mississippi

December 3, 2013

DARBY LEE CARSON, APPELLANT
v.
JESSE ANDREW BUTLER, APPELLEE

COURT FROM WHICH APPEALED: MONROE COUNTY CHANCERY COURT. DATE OF JUDGMENT: 09/06/2012. TRIAL JUDGE: HON. JOHN ANDREW HATCHER. TRIAL COURT DISPOSITION: DISMISSED APPELLANT'S PETITION FOR CONTEMPT AND MODIFICATION OF CUSTODY.

FOR APPELLANT: JOE M. DAVIS.

FOR APPELLEE: RICHARD SHANE MCLAUGHLIN, D. KIRK THARP, NICOLE H. MCLAUGHLIN.

BEFORE GRIFFIS, P.J., ISHEE AND CARLTON, JJ. LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ROBERTS, CARLTON, MAXWELL, FAIR AND JAMES, JJ., CONCUR.

OPINION

Page 1086

NATURE OF THE CASE: CIVIL - CUSTODY

ISHEE, J.:

[¶1] In 2009, Darby Carson and Jesse Butler were divorced by the Monroe County Chancery Court. Butler was awarded physical custody of the couple's only child, Aubrey, with the parties sharing joint legal custody. Subsequently, the parties entered into an agreed order as to Carson's visitation. Carson later filed a motion for contempt and modification of custody, to which Butler counterclaimed for contempt and modification of custody. At the conclusion of a trial on these matters, the chancery court entered a temporary order and reserved ruling on the issues. The chancery court later denied modification of custody and permanently implemented the visitation schedule set forth in the temporary order. Aggrieved, Carson now appeals.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

[¶2] Carson and Butler were divorced on August 6, 2009. Aubrey was born on December 16, 2008. Butler was awarded physical custody of Aubrey and both parties were awarded joint legal custody. On December 15, 2009, an agreed order was entered for modification of Carson's visitation schedule.

[¶3] In August 2010, Carson filed a petition for contempt and modification of custody. Carson alleged Butler was in contempt for exposing Aubrey to alcohol in violation of the agreed order. Further,

Page 1087

Carson maintained Butler was no longer providing primary care to Aubrey, was allowing her to be in situations that violated the agreed order, and was not the person taking her to church. As a result, Carson asserted that there had been a material change in circumstances and that it would be in Aubrey's best interest for Carson to be awarded sole legal and physical custody.

[¶4] On January 4, 2011, Butler filed an answer and counter-complaint for contempt and modification of the divorce judgment. He argued that Carson had also exposed Aubrey to alcohol. Further, he asserted that Carson had left Aubrey in the care of others and did not care for her during her visitations. He also maintained that Carson had failed to return Aubrey at the conclusion of Carson's visitation, resulting in his having to seek law-enforcement assistance to have Aubrey returned to him. Thus, Butler alleged that there had been a ...


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