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2014-CA-1298 IN THE SUPREME COURT OF THE STATE OF MISSISSIPPI GREGORY ALLEN CAMPBELL, APPELLANT VS. CATHERINE ANN CAMPBELL WATTS, APPELLEE

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E-Filed Document Feb :03: CA Pages: CA-1298 IN THE SUPREME COURT OF THE STATE OF MISSISSIPPI GREGORY ALLEN CAMPBELL, APPELLANT VS. CATHERINE ANN CAMPBELL WATTS, APPELLEE ON
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E-Filed Document Feb :03: CA Pages: CA-1298 IN THE SUPREME COURT OF THE STATE OF MISSISSIPPI GREGORY ALLEN CAMPBELL, APPELLANT VS. CATHERINE ANN CAMPBELL WATTS, APPELLEE ON APPEAL FROM THE CHANCERY COURT OF DESOTO COUNTY, MISSISSIPPI REPLY BRIEF OF APPELLANT JERRY WESLEY HISAW, MSB VANESSA WINKLER PRICE, MSB HOLLAND LAW, P.C. LAW OFFICE OF VANESSA PRICE 3010 GOODMAN ROAD WEST, SUITE A P.O. BOX 1406 POST OFFICE BOX 256 SOUTHAVEN, MISSISSIPPI HORN LAKE, MISSISSIPPI TELEPHONE: TELEPHONE: FACSIMILE: FACSIMILE: ATTORNEYS FOR THE APPELLANT ORAL ARGUMENT NOT REQUESTED i 2014-CA IN THE SUPREME COURT OF THE STATE OF MISSISSIPPI GREGORY ALLEN CAMPBELL, APPELLANT VS. CATHERINE ANN CAMPBELL WATTS, APPELLEE TABLE OF CONTENTS Table of Contents...ii Table of Authorities...iii Arguments and Discussion of Law A. The chancellor erred in modifying custody. 1-2 Conclusion Certificate of Service...4 ii TABLE OF AUTHORITIES CASES PAGE Best v. Hinton, 838 So.2d 306 (Miss.Ct.App.2002) 2 Cheek v. Ricker, 431 So.2d 1139 (Miss. 1983) 1 Ellis v. Ellis, 952 So. 2d 982 (Miss. Ct. App. 2006) 1 In re E.C.P., 918 So.2d 809 (Miss.Ct.App.2005) 2 Lowery v. Mardis, 867 So.2d 1053 (Miss. Ct. App. 2004)..1 Marascalco v. Marascalco, 445 So.2d 1380 (Miss. 1984)..1 iii ARGUMENTS AND DISCUSSION OF LAW A. The chancellor erred in modifying custody. The Appellee appears to concede that the chancellor did not make the required findings to support modifying custody. In the case at hand, the chancellor made no finding that there had been a substantial nor material change in circumstances. She made no finding that there was an adverse affect on the minor child. Furthermore, she made no findings under Albright that the best interest of the minor child would be served by modifying the prior order of the Court to award the parties joint legal and physical custody. Tr In determining the child s best interest, an Albright analysis must be conducted and a modification of custody must be reversed were the trial courts find a material change but fails to address the Albright factors. Lowery v. Mardis, 867 So.2d 1053, 1057 (Miss. Ct. App. 2004). The only testimony of any kind was that the parties had disagreements about Gavin spending more time with Catherine and the child did not like the fact that Greg was only agreeable to the visitation as the court ordered. Never in the history of Mississippi jurisprudence has following the court order been a basis for modifying custody. In fact, even the willful denial of visitation as ordered by the Court has not been a basis for modifying custody. As the Court of Appeals has noted [v]isitation issues should not normally be considered by the lower court when hearing a plea for custody modification[.] Ellis v. Ellis, 952 So. 2d 982, 994 ( 27) (Miss. Ct. App. 2006). Other Mississippi cases demonstrate the high standard for establishing a material change in circumstances wherein the courts have refused to find such a change warranted altering the original custody order. See Marascalco v. Marascalco, 445 So.2d 1380 (Miss. 1984) (granting an alcoholic mother custody of two minor daughters as such illness was not a material change that adversely affected children); Cheek v. Ricker, 431 So.2d 1139 (Miss. 1983) (awarding custody to 1 mother, though the child exhibited mental and emotional problems allegedly due to the mother's relationships with other men while the child was in her care); Smith v. Jones, 654 So.2d 480 (Miss. 1995) (stating though child apparently observed on several occasions sexual acts by her mother and stepfather, such did not constitute a change in totality of circumstances as to warrant change of custody). The record is utterly void of any material change in circumstances or adverse affect on the minor child. There is no authority to support a conclusion that a child's statement, in and of itself, of his or her preference to live with the non-custodial parent would rise to the level of a material or substantial change of circumstances. In re E.C.P., 918 So.2d 809, 824( 62) (Miss.Ct.App.2005) (emphasis added); see also Best v. Hinton, 838 So.2d 306, 308( 8) (Miss.Ct.App.2002) (modification of custody based upon the child's preference was reversed because such an expression, supported by nothing more is not the type of adverse material change in circumstance that would warrant a custody modification. ) (emphasis added). For the reasons as set forth above, the decision of the chancellor to modify custody must be reversed and rendered. CONCLUSION The chancellor s findings in modifying custody is not supported by the evidence in the record, the current Mississippi case law, and public policy concerns upon which Mississippi precedents are based. Therefore, for the reasons set forth herein, the chancellor s rulings should be reversed and Greg should be granted all other relief to which he may prove entitled. WHEREFORE, PREMISES CONSIDERED, Gregory Allen Campbell, respectfully prays to this Court to reverse the orders of the trial court as prayed for herein. Gregory Allen Campbell further prays for any and all other relief as this Court may deem just and proper. 2 This the 4 th day of February, Respectfully submitted, GREGORY ALLEN CAMPBELL By: /s/ Jerry Wesley Hisaw JERRY WESLEY HISAW (MSB ) ATTORNEYS FOR THE APPELLANT JERRY WESLEY HISAW, MSB VANESSA WINKLER PRICE, MSB HOLLAND LAW, P.C. LAW OFFICE OF VANESSA PRICE 3010 GOODMAN ROAD WEST, SUITE A P.O. BOX 1406 POST OFFICE BOX 256 SOUTHAVEN, MISSISSIPPI HORN LAKE, MISSISSIPPI TELEPHONE: TELEPHONE: TELEPHONE: FACSIMILE: CERTIFICATE OF SERVICE I, Jerry Wesley Hisaw, hereby certify that I have this day served a true and correct copy of the foregoing Brief of Appellant to: Chancellor Vicki B. Cobb 115A Eureka Street P.O. Box 1104 Batesville, Mississippi via U.S Mail A.E. Rusty Harlow, Esq. Harlow Law Firm 1360 Sunset Drive, Suite 3 Grenada, Mississippi via MEC SO CERTIFIED, this the 4 th day of February, /s/ Jerry Wesley Hisaw Jerry Wesley Hisaw (MSB )\ Certifying Attorney 4
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