OF JUDGMENT: 04/05/2018
FORREST COUNTY CHANCERY COURT HON. SUSAN RHEA SHELDON JUDGE
ATTORNEY FOR APPELLANT: PHILLIP LLOYD LONDEREE
ATTORNEYS FOR APPELLEE: SHEILA HAVARD SMALLWOOD JOHN D.
This is a child-custody-modification case. Randi Butler and
Joseph Mozingo are the parents of R.M., a
minor. Butler appeals from the Forrest County
Chancery Court's judgment granting Mozingo's request
for custody modification and for other relief. To obtain a
change in custody, Mozingo had to prove by a preponderance of
the evidence that "(1) a material change of
circumstances . . . occurred in the custodial home since the
most recent custody decree, (2) the change adversely
affect[ed] the child, and (3) the child's best interests
mandate[d] a change in custody." Butler v.
Butler, 218 So.3d 759, 762 (¶11) (Miss. Ct. App.
2017). Upon review, the chancellor did not err in finding
that a material change in circumstances occurred in
R.M.'s custodial home. But the chancellor's de facto
determination that the change adversely affected R.M. is not
supported by substantial evidence in the record. We therefore
reverse and render the chancery court's order modifying
AND PROCEDURAL HISTORY
Although never married, Butler and Mozingo engaged in an
intimate relationship that resulted in the conception of R.M.
Butler gave birth to R.M. in July 2014. On January 12, 2015,
the chancery court entered an agreed order that adjudicated
Mozingo as the natural father of R.M., granted the parties
joint legal custody of R.M., granted physical custody and
child support to Butler, and granted visitation to Mozingo.
About two years later, on March 24, 2017, Mozingo filed a
complaint seeking modification of custody and for other
relief. In his complaint, Mozingo alleged that there had been
a substantial change in circumstances in Butler's home
since January 2015 and that the change had an adverse impact
on R.M. According to Mozingo, Butler had made "numerous
moves in the past two . . . years due in part to her
inability to maintain gainful employment." Mozingo also
contended that Butler's "actions over the past two
years show[ed] poor judgment as well as poor parenting skills
with regard to the health and welfare of [R.M.]"
Accordingly, Mozingo sought physical custody of R.M. and
child support from Butler.
On April 25, 2017, the chancery court entered an agreed
temporary order for the parties to exchange physical custody
of R.M. on a weekly basis during June and July 2017. On
August 28, 2017, the chancery court entered a second agreed
temporary order for the parties to share joint legal and
physical custody of R.M. until further order of the court. On
March 8, 2018, the chancery court held a trial on
Mozingo's complaint. Butler, Mozingo, Mozingo's
mother, Mozingo's girlfriend, and Butler's
sister-in-law testified during the trial.
Butler's testimony revealed five moves that entailed both
different residences and living arrangements, the birth of a
second child (whose father provides Butler no child support),
a driver's license suspension for an unpaid traffic
violation, and an arrest for a misdemeanor incident that
occurred prior to R.M.'s birth-all within the three years
since the chancery court entered the January 2015 agreed
order. According to Butler's testimony, she first lived
with her brother and his wife. She then moved into her own
apartment. After that, she moved into a larger home with her
mother. Next, she moved in with a friend and her friend's
two children. And finally, Butler moved into a three-bedroom
trailer, which she was leasing to own from her friend Mandy
Odom. Butler testified that she had been living in the
trailer for about a year and that Odom was also living in the
trailer until Odom finished remodeling her house.
Mozingo testified he should have physical custody of R.M. due
to Butler's lack of stability. But he also stated that
the week-on-week-off schedule had worked well for them and
that he "personally [did] not have a problem with the
week on, week off." According to Mozingo, R.M. has been
in good health, and Butler has done nothing to cause him to
believe that she was being negligent or not taking care of
Mozingo's mother likewise testified that the
week-on-week-off schedule had worked well and that R.M. was
in good health, "active[, ] and bright."
Mozingo's girlfriend testified that Mozingo wanted
physical custody of R.M. to provide him with stability.
Mozingo's girlfriend agreed that Mozingo seemed to be
enjoying the week-on-week-off schedule and that the schedule
was "good." Butler's sister-in-law testified
that Butler is a very good mother and that the
week-on-week-off schedule had been working "okay."
At the end of the trial, the chancellor made an on-the-record
there has been a material change in circumstances that has
been adverse to the minor child, namely, [R.M.], and that
material change in circumstances has to do with the five
different residence[s] and the lack of stability in
[Butler's] household, that [Butler has] moved five times
since [R.M.] was born. And he's only three-and-a-half
chancellor went on to address the
Albright factors and ultimately awarded physical
custody to Mozingo. On April 2, 2018, the chancery court
entered a judgment modifying custody. Similar to the
chancellor's bench finding, the judgment stated that
[Butler]'s testimony reflected that she and the minor
child had made several moves since the [agreed order] was
entered in January of 2015 . . . . Based on these moves, the
Court finds that a material change in circumstances has
occurred in the home of . . . Butler ...