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Campbell v. Graves

Court of Appeals of Mississippi

September 10, 2019


          DATE OF JUDGMENT: 11/15/2017





          CARLTON, P.J.

         ¶1. 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.

         ¶2. 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 circumstances.

         ¶3. 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 opinion.


         ¶4. 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.[1] Anna and Sarah were both diagnosed with autism and have special needs.

         ¶5. 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]."

         ¶6. 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.

         After 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.

         ¶7. 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."

         ¶8. 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.

         ¶9. 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.

         ¶10. 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 in Clinton.

         ¶11. 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 another school.

         ¶12. 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.

         ¶13. 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.

         ¶14. 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 existing today[.]"

         ¶15. 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 herein."

         ¶16. 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 appeals.


         ¶18. 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).

         ¶19. 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. 2008).


         ¶20. 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 circumstances occurred.

         ¶21. 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).

         ¶22. 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).

         ¶23. 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).

         ¶24. 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[2] 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).

         ¶25. 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.)

         ¶26. 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.

         ¶27. 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.

         ¶28. 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.

         ¶29. 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.

         ¶30. 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.

         ¶31. 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.

         ¶32. 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 imagination."

         ¶33. 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 things."

         ¶34. 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 ...

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