OF JUDGMENT: 06/05/2015
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.
LEE, C.J., BARNES AND WESTBROOKS, JJ.
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.
AND PROCEDURAL HISTORY
Stephen Bradley Butler and Amy Lynette Bolen Butler were
married in 2006. The couple had one daughter, A.B.,
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.
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.
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.
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.
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.
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. The provision
restricting driving and overnight visits if Stephen received
another DUI remained in ...