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Voss v. Doughty

Court of Appeals of Mississippi

April 10, 2018

AMY VOSS APPELLANT
v.
DAVEN JOSEPH DOUGHTY APPELLEE

          DATE OF JUDGMENT: 12/07/2016

          DESOTO COUNTY CHANCERY COURT HON. VICKI B. DANIELS TRIAL JUDGE

          ATTORNEY FOR APPELLANT: MARGARET ANNA REID

          ATTORNEY FOR APPELLEE: DAVEN JOSEPH DOUGHTY (PRO SE)

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

          WILSON, J.

         ¶1. In November 2014, the DeSoto County Chancery Court granted Amy Voss and Daven Joseph Doughty joint legal custody of their daughter (Aqua), granted Voss physical custody, and granted Doughty visitation. A little over one month later, Voss filed a petition to modify visitation and to hold Doughty in contempt. Doughty answered and filed a counterclaim for modification of custody or visitation and for contempt. The chancellor denied Voss's petition, granted Doughty's request to modify custody, ordered the parties to share joint physical custody of Aqua, and terminated Doughty's child support obligation. On appeal, Voss argues that the chancellor erred by (1) modifying custody, (2) denying her petition to modify visitation, and (3) declining to find Doughty in contempt.

         ¶2. We hold that custody should not have been modified because there was no evidence of a material change in circumstances since the prior custody order. Therefore, we reverse and render the modification of custody. We also reverse and render the chancellor's sua sponte modification of child support, which was based on the erroneous modification of custody. We affirm the chancellor's denial of Voss's requests to modify visitation and to hold Doughty in contempt.

         FACTS AND PROCEDURAL HISTORY

         ¶3. Aqua was born in November 2014. Doughty is Aqua's father, but he and Voss were never married. Doughty is now married to another woman, Ashley. They live with Ashley's mother and a friend, Trey Brady, in a duplex in Senatobia. For a time after Aqua was born, Voss and Aqua also lived in the duplex with Doughty, Ashley, Ashley's mother, and Brady. However, Voss and Aqua subsequently moved in with Voss's parents in Olive Branch.

         ¶4. By order entered on November 4, 2015, [1] the chancery court granted Voss and Doughty joint legal custody of Aqua, granted Voss physical custody, and granted Doughty visitation the first and third weekend of each month and certain holidays. The court also ordered Doughty to pay child support of $150 per month. The court ordered the parties not to smoke in Aqua's presence and to follow any of Aqua's doctors' recommendations.

         ¶5. Voss was twenty-three years old at the time of trial. She works shifts at FedEx from 10 p.m. to 3:30 a.m. during the week and from 10 a.m. to 2 p.m. on Sundays. Her father is a pilot at FedEx, and her mother, Diana Christopher, cares for Aqua while Voss is at work, although of course Aqua generally is asleep while Voss is working night shifts. Voss catches up on sleep during the day, and Christopher helps with childcare during the day too. Aqua attends preschool two days each week from 9 a.m. to 2 p.m., and Voss picks her up from school and cares for her until her bedtime at 8 p.m.

         ¶6. English is Voss's second language, as she was adopted from China when she was eight years old. In addition, Voss has been diagnosed with Central Auditory Processing Deficit (CAPD), a disorder that affects her ability to listen, process, and respond to spoken words. Voss is able to understand and communicate with others, but it takes her longer to respond to others because of her disorder.

         ¶7. As noted above, Doughty lives in a duplex with his wife, his mother-in-law, and a friend. He is unemployed. He was fired from his last job at WalMart in the fall of 2015. He then enrolled in cosmetology school, but he withdrew. He testified that he had to withdraw for medical reasons. He has applied for disability benefits, but he has been denied twice. He claims that he has an undiagnosed medical condition that causes leg and back pain and difficulty walking or standing. Doughty testified that, because of his condition, he primarily sits on the floor or couch with Aqua when he keeps her. However, he testified that he is able to do everything necessary to care for Aqua, except give her baths or prepare food or drinks for her. Doughty testified that "if [Aqua] wants something to drink, . . . she'll just bring [her cup] to [Brady] because she knows [Brady] will go make it." Ashley gives Aqua baths when she is visiting Doughty. Because Doughty is unemployed, ...


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