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Butler v. Butler

Court of Appeals of Mississippi

May 2, 2017

AMY LYNETTE BOLEN BUTLER APPELLANT
v.
STEPHEN BRADLEY BUTLER APPELLEE

          DATE OF JUDGMENT: 06/05/2015

         COURT FROM WHICH APPEALED MONROE COUNTY CHANCERY COURT HON. C. MICHAEL MALSKI TRIAL JUDGE.

          ATTORNEY FOR APPELLANT: CARRIE A. JOURDAN.

          ATTORNEY FOR APPELLEE: CANDACE COOPER BLALOCK.

          BEFORE LEE, C.J., BARNES AND WESTBROOKS, JJ.

          LEE, C.J.

         ¶1. In this appeal, we must determine whether the chancellor erred in (1) modifying the child-visitation order and (2) declining to modify the child-custody arrangement. Finding no error, we affirm.

         FACTS AND PROCEDURAL HISTORY

         ¶2. Stephen Bradley Butler and Amy Lynette Bolen Butler were married in 2006. The couple had one daughter, A.B., [1] born in 2008. On July 28, 2010, the chancery court entered a final judgment of divorce between Stephen and Amy on the ground of irreconcilable differences. The judgment provided that Stephen and Amy would share joint legal custody of A.B., and that Amy would have full physical care, custody, and control of A.B. The judgment incorporated a detailed visitation schedule for Stephen, which specified times, dates, holidays, and birthdays that Stephen would spend with A.B. The schedule allowed Stephen supervised visitation, which would eventually progress to unsupervised visitation.

         ¶3. At the time the divorce decree was entered, Stephen had a pending DUI charge. As a result, the visitation schedule placed certain restrictions on Stephen's ability to drive A.B. and have overnight visits at his home. These restrictions were set to expire on specified dates. The pending DUI charge was later dismissed on appeal. However, Stephen received a second DUI charge after the divorce. This second DUI triggered a provision in the visitation agreement that again restricted Stephen's ability to drive and have overnight visits with A.B. until further order of the court.

         ¶4. On December 15, 2014, Stephen filed a complaint for modification and petition for contempt against Amy, claiming that Amy willfully and contumaciously refused to comply with the visitation schedule. Stephen requested his visitation be set forth specifically and that Amy be prohibited from interfering with his relationship with A.B. Amy counterclaimed, seeking sole legal and physical custody of A.B. and modification of Stephen's visitation to supervised-only visits with A.B. Amy further petitioned the court to hold Stephen in contempt and to increase Stephen's child-support obligations.

         ¶5. On June 5, 2015, trial commenced in chancery court. At trial, Amy testified that Stephen failed to request 75 percent of his scheduled visitations. Stephen testified that his lack of visitation was due, in part, to changes in his work schedule. Amy testified that she worried about Stephen's ability to care for A.B. in light of her medical condition. She testified that A.B. suffered from asthma and severe allergies, which required her to have an EpiPen and inhaler at all times. However, Amy admitted A.B. was still able to participate in a number of outdoor sports, including basketball and soccer, and never had to use the EpiPen. Specifically, Amy testified that she was concerned about Stephen's drinking, smoking, and mental illnesses-depression and bipolar disorder.

         ¶6. Stephen testified that Amy interfered with his relationship with A.B. by attending his scheduled visits and by blocking his phone number from A.B.'s cell phone. He testified that when A.B. would visit with him, Amy would text A.B. in the middle of the visit with messages such as, "Yay . . .[, ] only [two] more hours to go." About a year prior to the hearing, Stephen testified that he noticed A.B.'s behavior toward him changing. While A.B. used to be happy to see him, she was now cold and indifferent. Concerning his alcohol use, Stephen testified that he successfully completed two rehabilitation programs-seven weeks' inpatient and twelve weeks' outpatient-and had been sober for two years. He then testified that approximately two or three times a month, he would drink a twenty-four-ounce can of beer. Stephen testified, however, that he had never consumed alcohol or smoked cigarettes around A.B. In response to Amy's concerns about his alleged mental illnesses, Stephen testified that he was never diagnosed as bipolar, though he had taken antidepressants in the past and was currently taking an anxiety medication. His depression and anxiety were diagnosed before his marriage to Amy.

         ¶7. At the conclusion of the trial, the chancellor rendered an opinion from the bench. With regard to visitation, the chancellor awarded Stephen the same rights he was given in the divorce decree. Accordingly, the chancellor removed all supervision requirements, allowing Stephen to drive A.B. and have overnight visits with A.B. at his home.[2] The provision restricting driving and overnight visits if Stephen received another DUI remained in ...


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