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Butler v. Mozingo

Court of Appeals of Mississippi

November 12, 2019

RANDI LYNN BUTLER APPELLANT
v.
JOSEPH PARKER MOZINGO APPELLEE

          DATE 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. SMALLWOOD

         EN BANC.

          C. WILSON, J.

         ¶1. This is a child-custody-modification case. Randi Butler and Joseph Mozingo are the parents of R.M., a minor.[1] 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 custody.

         FACTS AND PROCEDURAL HISTORY

         ¶2. 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.

         ¶3. 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.

         ¶4. 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.

         ¶5. 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.

         ¶6. 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 R.M.

         ¶7. 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."

         ¶8. At the end of the trial, the chancellor made an on-the-record finding that

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 years old.

         The chancellor went on to address the Albright[2] 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 ...

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