OF JUDGMENT: 06/22/2015
COUNTY CHANCERY COURT, HON. VICKI B. DANIELS.
ATTORNEYS FOR APPELLANT: SARAH LYNN DICKEY J. KEITH PEARSON.
ATTORNEY FOR APPELLEE: MILDRED J. LESURE.
IRVING, P.J., FAIR AND WILSON, JJ.
When Suresa Young Todd and Derrium Todd divorced, they agreed
that they would share joint physical and legal custody of
their daughter. But the agreement incorporated into their
divorce judgment did not include a custody schedule.
Following Derrium's successful request for custody
modification and physical custody of their child, Suresa
claims the Tate County Chancery Court mistakenly held that
Derrium did not have to prove a material change in
circumstances adverse to the child's best interests. We
agree, so we reverse the chancellor's judgment and remand
the case for further consideration.
Derrium and Suresa were married in September 2008. They lived
with Derrium's parents in Coldwater, Mississippi, for a
short time before moving nearby to Como, Mississippi. Their
daughter was approximately one year old when they separated
in late 2009. After the separation, Derrium and the child
moved back into his parents' house. The record is
unclear, but it appears as though Suresa remained in Como.
In 2010, Derrium earned an associate's degree and
transferred to Mississippi State University in Starkville,
Mississippi. The record contains conflicting accounts
regarding where the child lived. Derrium and his parents
testified that the child lived almost entirely with his
parents. However, Suresa and her mother testified
otherwise. It was undisputed that the child began attending
Head Start in Coldwater during 2011. Derrium moved back to
Coldwater after he earned a bachelor's degree in
In December 2012, Derrium and Suresa filed their joint
complaint for an irreconcilable-differences divorce and an
agreement purportedly resolving all potential property,
custody, and support issues. Per their agreement, they would
share joint physical and legal custody of their daughter, but
the agreement did not include a custody schedule, and they
did not ask the chancellor to provide one. In March 2013, the
chancery court entered a final judgment of divorce
incorporating the agreement that the chancery court found
"adequate and sufficient." It is undisputed that in
December 2013, the child began living with Suresa during each
week and Derrium each weekend. That arrangement continued
after Derrium's May 2014 move from his parents' house
to his own home in Horn Lake, Mississippi.
In August 2014, Derrium filed a complaint for physical
custody. He claimed that custody modification was warranted
because there had been a material change in circumstances.
More specifically, Derrium claimed that Suresa had been
living with her mother, he was concerned that Suresa was not
caring for their daughter, and he "fear[ed] for her
safety and care." Suresa responded with an answer and
counterclaim for physical custody. According to Suresa, joint
physical custody was no longer feasible because of the
distance between her home and Derrium's.
The parties went to trial on May 22, 2015. The chancellor
heard testimony from multiple people who generally described
a child who was happy, thriving, and well-loved by both
parents and her extended family, who were extraordinarily
hesitant to say anything negative about Derrium or
Suresa. Ultimately, the chancellor entered the
Both parties have come in and alleged that it's
unworkable and that they both want full custody of the child
and want the noncustodial parent to pay child support. And so
in a situation like that, the [c]ourt has to make a ruling
about what is in the best interest of the child. And,
actually, in a case like that, no one has an automatic [h]ead
[s]tart. This is not like a case that [Suresa] was awarded
custody and [Derrium is] coming in trying to change it and he
would have to show a substantial and material change in
circumstances to change that, or that [Derrium] had custody
and [Suresa is] coming in and asking to change it, saying
that there is a substantial and material change in
circumstances that adversely affects the child. In this
situation, we just have a ...