COURT FROM WHICH APPEALED: LEE COUNTY CHANCERY COURT. DATE OF JUDGMENT: 10/08/2013. TRIAL JUDGE: HON. JACQUELINE ESTES MASK. TRIAL COURT DISPOSITION: DENIED MODIFICATION OF CHILD CUSTODY.
FOR APPELLANT: JOHN A. FERRELL.
FOR APPELLEES: ANTHONY RHETT WISE, EDWIN HUGHES PRIEST.
BEFORE GRIFFIS, P.J., BARNES AND CARLTON, JJ. LEE, C.J., IRVING, P.J., BARNES, ISHEE, ROBERTS, CARLTON, MAXWELL AND FAIR, JJ., CONCUR. JAMES, J., NOT PARTICIPATING.
¶1. Nathan Robinson appeals the chancellor's judgment that denied his petition to modify child custody. We find no error and affirm.
¶2. Nathan and Kathryn Robinson married on January 17, 2004. Their child, Bailey, was born on July 7, 2004. During her pregnancy with Bailey, Kathryn was diagnosed with Hodgkin's lymphoma. Shortly after this diagnosis and the birth of Bailey, Kathryn and Nathan separated. Kathryn lived with her parents, Bill and Donna Bailey, pending the divorce.
¶3. On May 3, 2005, Nathan and Kathryn were divorced on the ground of irreconcilable differences. Knowing of Kathryn's medical condition and that she received assistance caring for Bailey from her parents, Nathan agreed that Kathryn should have full custody of Bailey. Their agreement was reduced to writing, and the chancellor entered a final judgment that awarded Kathryn custody of Bailey and granted Nathan visitation with Bailey every other weekend.
¶4. After the divorce, Kathryn moved into her own place and continued to receive help in caring for Bailey from her parents while she was going through cancer treatments. Kathryn's chemotherapy required that she be quarantined for about a week every three months. During this time, Bailey would stay with Bill and Donna.
¶5. Due to chemotherapy, Kathryn developed nerve damage in her hands -- neuropathy. Because of her neuropathy, Kathryn could not and still cannot drive. She hopes to recover to be able to transport Bailey to school and other activities. In the meantime, unable to drive, she received help from her parents to transport Bailey. Often, the easiest solution, because of Kathryn's condition, was to let Bailey sleep at Bill and Donna's house on school nights, so they could take Bailey to school. Bailey would sleep at Kathryn's house on her weekends and during the summer.
¶6. In 2009, Nathan filed a petition to modify child custody. He cited Kathryn's poor health and alleged that she failed to exercise her parental rights. The chancellor found that Kathryn's health condition existed at the time of divorce and that she did exercise her custodial rights.
¶7. On June 6, 2012, Nathan filed a complaint for modification against Kathryn and her father, Bill Bailey. To support his complaint, Nathan claims that Kathryn is in poor ...