OF JUDGMENT: 11/15/2017
FROM WHICH APPEALED: RANKIN COUNTY CHANCERY COURT TRIAL
JUDGE: HON. JOHN C. McLAURIN JR.
ATTORNEYS FOR APPELLANT: JOHN SAMUEL GRANT IV CONNIE MARIE
ATTORNEYS FOR APPELLEE: CHRISTOPHER TABB BRYAN EDWARD GRAVES
CARLTON, P.J., GREENLEE AND McCARTY, JJ.
Sherry Ann Campbell Graves Page appeals from an order of the
Rankin County Chancery Court dismissing her motion for
modification of child custody. Sherry filed a motion to
reconsider, which the chancellor denied.
Sherry now appeals, arguing that the chancellor erred by: (1)
dismissing the case, despite the fact that Sherry presented
sufficient evidence on every required element for custody
modification, and (2) failing to consider the totality of the
We find that the chancellor erred in dismissing Sherry's
motion for modification of child custody, and we reverse and
remand this case for further proceedings consistent with this
Sherry and Bryan Graves married on July 10, 2004. During the
marriage, Sherry gave birth to two daughters: Anna in 2007
and Sarah in 2010. Anna and Sarah were both diagnosed with
autism and have special needs.
On October 18, 2013, Sherry and Bryan constructively
separated. On May 14, 2014, Sherry and Bryan entered a joint
motion consenting to a trial and a divorce on the grounds of
irreconcilable differences. Sherry and Bryan agreed to allow
the court to decide the following issues: child support,
child custody, alimony, guardian ad litem (GAL) fees,
property division, and payment of debts. On May 16, 2014, the
chancellor appointed a GAL "to investigate, find facts,
and make an independent report to the [chancellor]."
A judgment of divorce was entered on July 24, 2014. In the
judgment, the chancellor ordered that the "Marital
Dissolution Agreement" be incorporated into the judgment
of divorce. The Marital Dissolution Agreement set forth the
following child custody arrangement:
[Bryan] shall have legal and physical custody of the minor
children subject to [Sherry's] reasonable visitation.
[Sherry] shall receive one week each month to be mutually
agreed upon by the parties. [Sherry's] visitation shall
take place in the city in which the children are resided
which is anticipated to be Monroe, Louisiana. [Sherry's]
visitation shall be supervised by [Bryan] or a member of
[Bryan's] family or someone approved by [Bryan]. In the
event [Sherry] is unable to visit with the children in the
home of [Bryan] or [Bryan's] parents, then [Sherry] shall
return the children to their home at 8:00 p.m. each evening.
[Sherry] shall be responsible for scheduling and arranging
all visitation periods with the minor children.
the entry of the judgment of divorce, Sherry moved to
Virginia and eventually married David Page. As anticipated by
the Marital Dissolution Agreement, Bryan moved Anna and Sarah
to Monroe, Louisiana. The record reflects that Bryan's
stepmother and sister both worked as special education
teachers and had agreed to help him care for Anna and Sarah.
Less than one year later, on May 12, 2015, Sherry and Bryan
entered into an agreed order of visitation which granted
Sherry unsupervised visitation with Anna and Sarah. The
chancellor also lifted the requirement that the visitation
occur in Monroe. The order stated that "Bryan shall
continue to have physical and legal custody of the minor
children," and the order provided Sherry with
approximately three months for summer visitation, stating:
"Sherry [s]hall have the children for the summer
beginning the 10th day after school recesses and ending
[seven] days prior to school resuming." The chancellor
also ordered that "[d]uring summer visitation, Sherry
shall enroll the children in therapy in Virginia comparable
to what they are receiving in Monroe, and shall provide the
therapists' names and addresses to Bryan so that he can
give that information to the Monroe therapists."
In May through August of 2015, the girls lived with Sherry
and her husband, David, in Virginia, per the modified
visitation order. In August 2015, Bryan and Sherry agreed
that Anna and Sarah would remain in Virginia with Sherry
indefinitely. This arrangement ultimately lasted from May
2015 until September 2017-just under two-and-a-half years.
During this time, Anna and Sarah attended school in Virginia
and continued to receive therapy.
While Anna and Sarah were living in Virginia, Bryan moved
from Monroe to Clinton, Mississippi. He lived with a friend
for approximately a year, and then he moved into the home of
his girlfriend, Stacy, who also lived in Clinton.
At the end of August 2017, Anna and Sarah started back to
school. The record reflects that after attending their first
week of school, Bryan and Stacy took Anna and Sarah on
vacation to Florida. During this trip, which occurred in
September 2017, Anna and Sarah met Stacy for the first time.
At the end of the trip, Bryan refused to let the girls return
to Virginia; instead, he moved Anna and Sarah in to live with
him and Stacy. Bryan also enrolled Anna and Sarah in school
Approximately one month later, Bryan and Stacy broke up.
Bryan and the girls moved out of Stacy's house and into
an apartment. The record reflects that Bryan's new
apartment was located in a different school district than
Stacy's house, so Bryan enrolled Anna and Sarah in
On October 3, 2017, Sherry filed a motion for modification of
child custody. In the motion, Sherry alleged that since the
May 2015 agreed order of visitation, "there has been a
material change in circumstances which adversely affects the
minor children." Sherry stated that Anna and Sarah had
lived with Sherry and David in Virginia from May 13, 2015,
until September 2017.
A trial was held on the matter on November 1, 2017. During
Sherry's case-in-chief, the chancellor heard testimony
from Anna and Sarah's special education teacher in
Clinton; their teacher/therapist in Virginia; a teacher's
assistant in Virginia; Bryan (adversely); and Sherry. We
discuss this testimony in detail below.
After presenting their case-in-chief, Sherry's attorney
rested. Bryan then moved to dismiss the case. After hearing
arguments from the parties, the chancellor granted
Bryan's motion and found as follows: "I do not find
that there has been a substantial and material change in
circumstances adverse to the welfare of these children in
their present situation," explaining "[t]he
circumstances that were existing at the time of the divorce
with regard to these children are very similar to what's
On November 15, 2017, the chancellor entered an order
memorializing his ruling granting Bryan's motion to
dismiss and dismissing Sherry's motion for modification
with prejudice. The chancellor held that Sherry "has
failed to prove that there has been a material change in
circumstances that adversely affects the minor children
Sherry filed a motion to reconsider and argued that, among
other things, the chancellor should not have dismissed the
case when the evidence showed Bryan had voluntarily allowed
the children to be in Sherry's care for more than two
years before he took them back. Sherry also asserted that the
chancellor failed to consider the totality of the
circumstances. After hearing arguments, the chancellor denied
Sherry's motion to reconsider. ¶17. Sherry now
On appeal of a chancellor's denial of motion for
modification of child custody based on a material change in
circumstances, "[t]his Court employs a limited standard
of review in child-custody cases and will affirm findings of
fact by chancellors when they are supported by substantial
evidence unless the chancellor abused her discretion, was
manifestly wrong, clearly erroneous or an erroneous legal
standard was applied." Carter v. Carter, 204
So.3d 747, 756 (¶37) (Miss. 2016) (internal quotation
mark omitted). We recognize that "findings of fact made
by a chancellor may not be set aside or disturbed upon appeal
if they are supported by substantial, credible
evidence." Id. We review questions of law de
novo. Campbell v. Watts, 192 So.3d 317, 318
(¶5) (Miss. Ct. App. 2015).
In their appellate briefs, both Sherry and Bryan argue that
the standard of review for the chancellor's denial of
Sherry's motion for modification of child custody based
on a material change in circumstances is de novo. They assert
that where the chancellor failed to consider the totality of
the circumstances in a modification action, this Court has
held that "the chancellor applied an incorrect, or
rather, an incomplete legal standard." Powell v.
Powell, 976 So.2d 358, 362 (¶15) (Miss. Ct. App.
Sherry argues that the chancellor erred in dismissing her
motion for modification of child custody. Sherry maintains
that she presented sufficient evidence on every element of
her claim showing that a material change in circumstances had
occurred in the custodial home, and that the change adversely
affected Anna and Sarah. Sherry also argues that the
chancellor failed to consider the totality of the
circumstances when determining whether a material change in
Mississippi Rule of Civil Procedure 41(b), which governs
involuntary dismissals, "applies in actions tried by the
court without a jury, where the judge is also the
fact-finder." All Types Truck Sales Inc. v. Carter
& Mullings Inc., 178 So.3d 755, 758 (¶13)
(Miss. Ct. App. 2012) (internal quotation marks omitted).
"A judge should grant a motion for involuntary dismissal
if, after viewing the evidence fairly, rather than
in the light most favorable to the plaintiff, the judge would
find for the defendant." Id. (quoting
Gulfport-Biloxi Reg'l Airport Auth. v.
Montclair Travel Agency Inc., 937 So.2d 1000, 1004-05
(¶13) (Miss. Ct. App. 2006)). "The court must deny
a motion to dismiss only if the judge would be obliged to
find for the plaintiff if the plaintiff's evidence were
all the evidence offered in the case." Id.;
see also Shows v. Cross, 238 So.3d 1224, 1232
(¶33) (Miss. Ct. App. 2018).
On appeal, we review a chancellor's decision to grant a
Rule 41(b) dismissal in a modification of child custody
action "under the deferential
substantial-evidence/manifest-error standard." Shows
v. Cross, 238 So.3d at 1232 (¶33). "Under this
standard, we must affirm unless the chancellor applied an
incorrect legal standard or made manifestly wrong or clearly
erroneous factual findings." In re Bowling, 155
So.3d 907, 911 (¶21) (Miss. Ct. App. 2014).
This Court has recognized that "[a] modification of
custody is warranted when the moving parent successfully
shows (1) that a material change of circumstances has
occurred in the custodial home since the most recent custody
decree, (2) that the change adversely affects the child, and
(3) that modification is in the best interest of the
child." Voss v. Doughty, 242 So.3d 952, 956-57
(¶13) (Miss. Ct. App. 2018) (quotation omitted). "A
change in circumstances is a change in the overall living
conditions in which the child is found, and the totality of
the circumstances must be considered." Gainey v.
Edington, 24 So.3d 333, 336 (¶11) (Miss. Ct. App.
2009) (citation and internal quotation marks omitted).
"[T]he material change in circumstances must [also] be
unforeseeable at the time of the original decree."
Giannaris v. Giannaris, 960 So.2d 462, 469
(¶12) (Miss. 2007). We recognize that "[m]atters
involving child custody are within the sound discretion of
the chancellor." Heisinger v. Riley, 243 So.3d
248, 256 (¶30) (Miss. Ct. App. 2018).
As the parent requesting a change of child custody, Sherry
bears the burden of proving a material, adverse change in
circumstances by a preponderance of the evidence.
Voss, 242 So.3d at 956 (¶13). If the movant
meets her burden of showing a material, adverse change in
circumstances, the chancellor must then "apply the
Albright factors to determine whether modification
is in the child's best interest." Id.
"However, if there has been no material, adverse change
in circumstances, the Albright factors need not be
addressed." Id. at 957 (¶13).
We now turn to review the testimony and evidence presented at
trial during Sherry's case-in-chief. The record reflects
that the chancellor first heard testimony from Amanda
Langford, Anna and Sarah's special education teacher when
they briefly lived with Bryan and Stacy in Clinton. (Amanda
testified that at the time of trial she was aware that Anna
and Sarah had moved to a different school district.)
Amanda stated that both Anna and Sarah were autistic, and she
explained that Sarah utilized a feeding tube for nutrition.
Regarding Sarah's feeding tube, Amanda testified that
Sarah was not fed or provided with anything to drink during
the school day. As far as academics, Amanda testified that
she reviewed Anna's and Sarah's school records from
Virginia, and she stated that they would be following
basically the same academic program in Mississippi.
Sherry's counsel asked Amanda how well Anna and Sarah
adjust to change, and Amanda answered: "Not very well. I
mean, they did good, you know, coming in [to a new school],
as good as could be expected." When Sherry's counsel
asked if there was ever a time when she was concerned about
the girls, Amanda answered, "No." However, when
asked if there was ever a time when she felt that Anna and
Sarah did not have on appropriate attire, Amanda answered,
"Yes." Amanda explained that when the weather
turned cold, Anna and Sarah did not have on coats or long
pants. Amanda testified that she contacted both Bryan and
Stacy "several, several times" regarding her
concerns about the girls' hygiene and clothing. Amanda
stated that this problem was eventually cured.
Amanda also testified regarding a time when she noticed that
Anna and Sarah exhibited poor hygiene, explaining that
"four weeks ago," she observed that their hair and
teeth had not been brushed. Amanda testified that she
recalled two particular days when Sarah arrived at school
"very, very exhausted and she could hardly keep her eyes
open." Amanda approached Bryan about Sarah's
exhaustion and, according to Amanda, Bryan said "that
[Sarah] had stayed up late" playing on her iPad
"and that she would probably be tired, try to let her
rest." On cross-examination, Amanda confirmed that as a
teacher, she is obligated to contact the Department of Human
Services (DHS) if she has concerns about what is happening
with children under her care. Amanda testified that she did
not contact DHS regarding Anna and Sarah.
Amanda testified that at an individualized education program
(IEP) meeting she attended with Bryan, along with an
administrator, a speech therapist, an occupational therapist,
and a general education teacher, Bryan made a comment
suggesting that the school staff in attendance presently had
vodka, and not water, in their cups. Amanda also testified
when Bryan dropped the girls off at school, she has heard
loud music playing in his vehicle, which Amanda agreed would
be a stimulation for Anna and Sarah. Amanda testified that
Stacy has also dropped off Anna and Sarah at school.
The chancellor next heard from Michele Samuels, an autism
teacher and Applied Behavior Analysis (ABA) therapist hired
by Sherry to work with Anna and Sarah while they lived in
Virginia. Michele testified that she met with Anna and Sarah
after school. Michele stated that in September 2015, she
began working with the girls twice a week. Michele testified
that insurance paid for her services for approximately a
year, and then Sherry and David paid her "out of their .
. . private pocket" to work with the girls as an in-home
tutor. Michele stated that Sherry "was very
involved" in Michele's treatment with the girls.
Michele described Anna as possessing language-development
ability, but she explained that Anna "didn't use a
lot of language to communicate. She did a lot of verbal stem
scripting. She would remember movies and videos and she would
recite things over and over again. It was kind of hard to
engage her in conversation." Regarding Anna's
behavioral issues, Michele testified that she "had a
little bit of aggression. [Anna] was aggressive with me . . .
[and] with her sister. Getting her to do things was difficult
. . . a lot of noncompliance. If you asked her to do things,
she would wander away or she would sit on the floor."
Anna also tended to "bolt," or run off.
Michele testified that she worked with Anna on
"answering questions" and explained that "if I
asked her things, you know, like [what did] you have for
dinner, or [what did] you have for lunch, she would properly
answer me versus just scripting or talking about something
that she was pretending, because she has a pretty good
Michele explained when she initially began working with the
girls, she performed a functional life-skills assessment on
Anna, which revealed that Anna "wasn't doing things
that a normal child of her age would be doing." As a
result, Michele worked with Anna on "washing her face,
brushing her teeth, chores, cleaning the table, picking up
your toys, making a bed, sweeping the floor, those kinds of
Michele testified that during her time working with Anna,
Anna "started to use a lot more language, and she seemed
to engage more with activities." Michele explained that
Anna "liked to do a lot of solitary play, so she would
play more with me. She would ask more questions. She was
using language more appropriately, not just kind of scripting
or singing or-she became a little more social. She would seek
out others to interact ...