DATE OF JUDGMENT: 07/01/2013.
COURT fro WHICH APPEALED: ITAWAMBA COUNTY CHANCERY. TRIAL JUDGE: HON. JOHN ANDREW HATCHER. TRIAL COURT DISPOSITION: MODIFIED CUSTODY OF MINOR CHILD AND FOUND MOTHER IN CONTEMPT.
FOR APPELLANT: MICHAEL LEE DULANEY.
FOR APPELLEE: JAMES ROGER FRANKS JR., WILLIAM RUFUS WHEELER JR.
BEFORE IRVING, P.J., FAIR AND JAMES, JJ. LEE, C.J., GRIFFIS, P.J., ISHEE, ROBERTS, CARLTON, MAXWELL AND FAIR, JJ., CONCUR. BARNES, J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION. JAMES, J., CONCURS IN PART WITHOUT SEPARATE WRITTEN OPINION.
NATURE OF THE CASE: CIVIL - CUSTODY
¶1. After awarding custody of Regina Weathers and Scott Guin's minor son, Jacob, to Regina, the Chancery Court of Itawamba County entered a modification order transferring custody of Jacob to Scott and ordering Regina to pay child support for Jacob. The chancery court later entered a contempt order, finding Regina in contempt for violating the modification order. Regina appeals from the modification order, arguing that there was no basis for the custody modification because no hearing was held and she did not consent to the terms of the order. Regina also argues that the chancery court erred by finding her in contempt.
¶2. For the reasons that follow, we reverse and remand for further proceedings.
¶3. Regina and Scott were divorced on December 1, 2008. In the divorce decree, the chancery court awarded primary custody of two of Regina and Scott's minor children, Jacob and Brittany, to Regina, with Scott having visitation with them. The chancery court awarded Scott primary custody of the third minor child, Courtney, with Regina being awarded visitation.
¶4. On June 4, 2013, Scott filed a complaint in the chancery court, seeking modification of the initial custody order to grant him custody of Jacob and Brittany based on substantial and material changes in circumstances, specifically: (1) Regina's consumption of alcohol in the children's presence, (2) Regina's disparaging statements about Scott to the children, and (3) Regina's threats to move the children to another state. Scott also insisted that Regina had allowed Jacob and Brittany to suffer injuries, although he did not specify the type of injuries or how they occurred.
¶5. By order filed July 8, 2013, without citing a material change in circumstances, the chancery court modified the original custody order and awarded permanent physical and legal custody of Jacob to Scott, with Regina having visitation. The chancery court also ordered Regina to pay child support for Jacob. Pursuant to the modification order, neither Scott nor Regina could move the children out of state, make disparaging remarks about each other in the children's presence, consume alcohol in the children's presence, or operate a motorized vehicle with either of the children while under the influence of alcohol. Despite the language in the modification order stating that the chancery court had made its findings after " both parties [had] appeared with counsel" and that the parties had appeared " [o]n ...