DATE OF JUDGMENT: 05/02/2013
COURT FROM WHICH APPEALED: JEFFERSON DAVIS COUNTY CHANCERY COURT, TRIAL JUDGE: HON. JOE DALE WALKER
ATTORNEYS FOR APPELLANT: CHRISTOPHER RANDALL PURDUM AUDRY REGNAL BLACKLEDGE
ATTORNEY FOR APPELLEE: JAMES BURVON SYKES III
BEFORE LEE, C.J., ISHEE AND FAIR, JJ.
FAIR, J., FOR THE COURT
¶1. Kayla Mize appeals the Jefferson Davis County Chancery Court's order granting her ex-husband, Jarrell Mize, full legal and physical custody of their son. We conclude that the chancellor erred in finding a material change in circumstances since the divorce. Accordingly, we reverse and render the chancellor's judgment.
¶2. Jarrell and Kayla Mize were married on October 27, 2007. They have one son, Christopher, born on August 6, 2007. On February 11, 2011, the couple divorced on the ground of irreconcilable differences. The final judgment of divorce approved and incorporated a child custody, support, and property settlement agreement, which provided that they would share joint legal and physical custody of Christopher, age three, with each having physical custody during alternating weeks. A t that time, Jarrell was working offshore every other week.
¶3. On May 16, 2011, Jarrell filed a petition for modification of the final judgment of divorce and for an emergency hearing, claiming that there had been a material change in circumstances since the original divorce decree. Jarrell asserted: (1) Kayla had failed to properly care after and provide for Christopher; (2) Kayla had failed to provide a stable home environment for Christopher; (3) Kayla had exposed Christopher to circumstances that adversely affected him; and (4) Kayla had done things to Christopher that adversely affected him mentally and physically. Jarrell requested sole legal and physical custody. Jarrell also requested an emergency hearing, based on allegations that Kayla was using illegal drugs and living with a man outside of wedlock.
¶4. The court held an emergency hearing the following day. With Kayla not present, Jarrell, Kayla's mother, and Kayla's grandmother each testified. Jarrell admitted he had no personal knowledge regarding the allegations in his petition; he testified that he was told Kayla had been kicked out of her father's house. He also stated that Kayla had lost a lot of weight since the divorce and looked tired. Kayla's mother testified that Kayla was kicked out because her family did not approve of her relationship with a black man. She further testified that she did not know if Christopher had ever met Kayla's boyfriend. She added that she suspected Kayla may be using drugs, based on her weight loss. When questioned further on the issue, Kayla's mother stated that Kayla drank lots of caffeinated drinks throughout the day. Kayla's grandmother's testimony referenced Kayla's weight loss but made no mention of any drug use. At the close of the hearing, the court granted Jarrell's emergency order for sole custody and appointed a guardian ad litem to investigate Jarrell's claims. The court issued an order awarding Jarrell full physical custody, pending a hearing on his petition for modification. Kayla was awarded limited visitation – 1 p.m. to 7 p.m. on Saturdays when Jarrell was offshore. The order stated visitation was required to take place in her mother's home, with her mother present.
¶5. The court held another hearing on June 29, 2011, to review the temporary emergency order. Kayla had not seen her son for a month and a half, besides the limited visitation under her mother's supervision. The guardian ad litem (GAL) submitted a report, testified, and questioned witnesses. She conducted telephone interviews with Jarrell, his mother, and Kayla's grandmother. She also interviewed Kayla and her mother. The GAL's investigation revealed that Kayla moved in with her mother just a few days after the emergency hearing. In addition, the GAL reviewed a drug test taken by Kayla Mize; it was negative. The GAL concluded that, since Kayla had moved in with her mother, an emergency situation no longer existed. She recommended the emergency order be lifted.
¶6. Kayla's mother and grandmother also testified at the June hearing. Contrary to their May emergency-hearing testimony, they testified in support of Kayla. Kayla's mother stated that she previously testified against Kayla because she was dating a black man named Rahkem Williams; she also stated that she did not really believe that Kayla was using drugs. Specifically, she stated, "I knew with [Kayla] dating a black guy[, ] that would not be enough for the judge to take Christopher away from her, but if [I] insinuate[d] that there may be drug use . . . [the judge] will do something more about it." Kayla's mother also testified that she was the person who told Jarrell about Kayla's alleged drug use.
¶7. Kayla testified that she did not appear at the May 17 hearing because she had no personal transportation, and she was unable to get a ride from someone else. The judge did not believe her explanation. Regarding her weight loss, Kayla testified that she had been exercising and eating a healthy diet. She testified that she moved in with her mother after she was kicked out of her father's house for Rahkem. She also stated that she had since stopped dating Rahkem, and ...