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Todd v. Todd

Court of Appeals of Mississippi

April 18, 2017

SURESA YOUNG TODD APPELLANT
v.
DERRIUM TODD APPELLEE

          DATE OF JUDGMENT: 06/22/2015

         TATE COUNTY CHANCERY COURT, HON. VICKI B. DANIELS.

          ATTORNEYS FOR APPELLANT: SARAH LYNN DICKEY J. KEITH PEARSON.

          ATTORNEY FOR APPELLEE: MILDRED J. LESURE.

          BEFORE IRVING, P.J., FAIR AND WILSON, JJ.

          IRVING, P.J.

         ¶1. 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.

         FACTS

         ¶2. 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.

         ¶3. 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.[1] 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 accounting.

         ¶4. 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.

         ¶5. 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.

         ¶6. 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.[2] Ultimately, the chancellor entered the following ruling:

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 ...

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