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2014-CA 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 Dec :52: CA Pages: CA 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 Dec :52: CA Pages: CA 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 BRIEF OF APPELLANT JERRY WESLEY HISAW, MSB VANESSA WINKLER PRICE, MSB HOLLAND LAW, P.C. LAW OFFICE OF VANESSA PRICE ATTORNEYS AT LAW ATTORNEYS AT LAW 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 2014-CV IN THE SUPRME COURT OF THE STATE OF MISSISSIPPI GREGORY ALLEN CAMPBELL, APPELLANT VS. CATHERINE ANN CAMPBELL WATTS, APPELLEE CERTIFICATE OF INTERESTED PERSONS The undersigned counsel of record certifies that the following listed persons have an interest in the outcome of this case. These representations are made in order that the Justices of the Supreme Court and/or the Judges of the Court of Appeals may evaluate possible disqualification or recusal. 1. Gregory Allen Campbell, Appellant 2. Catherine Ann Campbell Watts, Appellee 3. Vanessa Price, Attorney of Record for the Appellant 4. Jerry Wesley Hisaw, Attorney of Record for Appellant 5. A.E. Rusty Harlow, Attorney for Appellee 6. Honorable Vicki B. Cobb, Chancellor THIS 3 rd day of December, /s/ Jerry Wesley Hisaw JERRY WESLEY HISAW ii 2014-CA IN THE SUPREME COURT OF THE STATE OF MISSISSIPPI GREGORY ALLEN CAMPBELL, APPELLANT VS. CATHERINE ANN CAMPBELL WATTS, APPELLEE TABLE OF CONTENTS Certificate of Interested Parties...ii Table of Contents...iii Table of Authorities...iv-v Statement of the Issues....2 Statement of the Case...3 Summary of the Argument..3-4 Argument 5-11 (1) The chancellor erred in modifying custody Conclusion Certificate of Service...13 iii TABLE OF AUTHORITIES CASES PAGE Albright v. Albright, 437 So.2d 1003 (Miss. 1983).6,7, 8 Balius v. Gaines, 914 So.2d 300 (Miss. Ct. App. 2005) 7 Ballard v. Ballard, 434 So.2d 1357 (Miss.1983)...7 Best v. Hinton, 838 So.2d 306 (Miss.Ct.App.2002)...9 Dykes v. McMurry, 938 So.2d 330 (Miss.Ct.App.2006) 8, 9 Faries v. Faries, 607 So.2d 1204 (Miss.1992)...6 Gray v. Gray, 969 So.2d 906 (Miss. Ct. App. 2007)..7 Holloman v. Holloman, 691 So. 2d 897 (Miss. 1996)....5 In re E.C.P., 918 So.2d 809 (Miss.Ct.App.2005)...9 Jones v. Jones, 878 So.2d 1061 (Miss. Ct. App. 2004).10 Jundoosing v. Jundoosing, 826 So. 2d 85 (Miss. 2002)..5 McDonald v. McDonald, 39 So.3d 868 (Miss.2010)..6 Morrow v. Morrow, 591 So.2d 829 (Miss.1991).6, 7 Ortega v. Lovell, 725 So.2d 199 (Miss. 1998)...5, 7, 10 Pace v. Owens, 511 So.2d 489 (Miss. 1987)...7 Polk v. Polk, 589 So.2d 123 (Miss.1991) 9 Potts v. Windham, 56 So.3d 589 (Miss.Ct.App.2011).8, 9 Powell v. Powell, 976 So.2d 358 (Miss. Ct. App. 2008).7 Pruett v. Prinez, 979 So.2d 745 (Miss. Ct. App. 2008)...7 Samples v. Davis, 904 So. 2d 1061 (Miss. 2004) 5 Self v. Lewis, 64 So.3d 578 (Miss.Ct.App.2011) 8 iv Thornell v. Thornell, 860 So.2d 1241 (Miss. Ct. App. 2003)..7 Tilley v. Tilley, 610 So.2d 348 (Miss.1992).6 SECONDARY SOURCES Mississippi Code Annotated Section (Rev.2004)...9 v (1) The chancellor erred in modifying custody. STATEMENT OF THE ISSUES 2 STATEMENT OF THE CASE A. Nature of the Case, Course of Proceedings, and Disposition This is an appeal from an Order Denying Motion Pursuant to Rule 59 and Rule 60 of the Mississippi Rules of Civil Procedure entered on August 20, 2014 determining issues raised by Appellant, Gregory Allen Campbell (hereafter Greg) and the Appellee, Catherine Ann Campbell Watts (hereafter Catherine). 1 Catherine filed a Petition for Citation of Contempt and for Modification along with requests for other relief on October 3, (R. 7-10). Catherine sought to hold Greg in contempt of court and sought a modification of child custody. Greg filed an answer along with a counter-petition for contempt and modification. The case was tried before the chancellor on June 6, 2014 who entered a judgment denying both parties claims for contempt but modifying custody to award the parties joint legal and physical custody of the parties minor child Gavin with the parties alternating weeks of physical custody. R The chancellor ordered Greg to pay Catherine $ a month in child support, continue to maintain health insurance on the minor child, and ordered the parties to split the extracurricular activities costs of the minor child equally. R. 33. Greg timely filed a motion Pursuant to Rule 59 and Rule 60 of the Mississippi Rules of Civil Procedure on June 30, 2014 with the same being denied on August 20, R , 40. Aggrieved, Greg now appeals the Chancery Court Judgment. B. Statement of the Facts Greg and Catherine were divorced on June 22, Tr. 7. The parties shared joint legal and physical custody until November 9, 2010 when Greg obtained primary physical custody of Gavin. Tr. 7, R Over three (3) years later, Catherine filed a Petition for Citation of Contempt and for Modification along with requests for other relief on October 3, 1 Citations to the Record are designated as (R. ), the Transcript of Testimony as (Tr. ) and Exhibits as (Ex. ). 3 2013. (R. 7-10). Catherine sought to hold Greg in contempt of court and sought a modification of child custody. Catherine alleged Greg was in contempt for withholding visitation and sought to modify custody to award her full custody of Gavin. R Greg filed an answer along with a counter-petition for contempt and modification. Greg sought to hold Catherine in contempt for nonpayment of child support along with seeking an increase in child support. R The case was tried before the chancellor on June 6, Catherine admitted at trial that no visitation had been withheld and that Greg was following the court order. Tr She was upset that he would not give her more visitation than the prior order of the court granted. The trial court declined to hold Catherine in contempt as there appeared to be accounting issues with the Department of Human Services in their collection of child support. Tr The chancellor entered a judgment on June 19, 2014 denying both parties claims for contempt but modifying custody to award the parties joint legal and physical custody of the parties minor child Gavin with the parties alternating weeks of physical custody. R The chancellor ordered Greg to pay Catherine $ a month in child support, continue to maintain health insurance on the minor child, and ordered the parties to split the extracurricular activities costs of the minor child equally. R. 33. Greg timely filed a motion Pursuant to Rule 59 and Rule 60 of the Mississippi Rules of Civil Procedure on June 30, 2014 with the same being denied on August 20, R , 40. Aggrieved, Greg now appeals the Chancery Court Judgment. 4 SUMMARY OF THE ARGUMENT In domestic relations cases, [the appellate court s] scope of review is limited by the substantial evidence/manifest error rule. Samples v. Davis, 904 So. 2d 1061, ( 9) (Miss. 2004) (citing Jundoosing v. Jundoosing, 826 So. 2d 85, 88 ( 10) (Miss. 2002)). [We] will not disturb the chancellor's opinion when supported by substantial evidence unless the chancellor abused his discretion, was manifestly wrong, clearly erroneous, or an erroneous legal standard was applied. Id at 1064 ( 9) (quoting Holloman v. Holloman, 691 So. 2d 897, 898 (Miss. 1996)). The Appellate Court may disturb a chancellor s determination regarding a modification of custody if the chancellor is manifestly wrong, clearly erroneous, or applied an erroneous legal standard. Jernigan, 830 So. 2d at 652 ( 2). 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 Modifications are subject to reversal where the court did not find an adverse material change before considering a child s best interest. In Ortega v. Lovell, 725 So.2d 199, 204( 26) (Miss.1998), the Mississippi Supreme Court held that [b]ecause there was no showing of a material change in circumstances, the chancellor erred in modifying custody, and it reversed and rendered the judgment of the chancery court. For all these reasons, and as set forth more fully below, the chancellor s judgment should be reversed. 5 ARGUMENT STANDARD OF REVIEW In domestic relations cases, [the appellate court s] scope of review is limited by the substantial evidence/manifest error rule. Samples v. Davis, 904 So. 2d 1061, ( 9) (Miss. 2004) (citing Jundoosing v. Jundoosing, 826 So. 2d 85, 88 ( 10) (Miss. 2002)). [We] will not disturb the chancellor's opinion when supported by substantial evidence unless the chancellor abused his discretion, was manifestly wrong, clearly erroneous, or an erroneous legal standard was applied. Id at 1064 ( 9) (quoting Holloman v. Holloman, 691 So. 2d 897, 898 (Miss. 1996)). The Appellate Court may disturb a chancellor s determination regarding a modification of custody if the chancellor is manifestly wrong, clearly erroneous, or applied an erroneous legal standard. Jernigan, 830 So. 2d at 652 ( 2). (1) The chancellor erred in modifying custody. In a modification of custody proceeding, a non-custodial party must prove by a preponderance of the evidence that (1) there has been a substantial change in circumstances affecting the child, (2) the change adversely affects the child's welfare, and (3) a change in custody is in the best interest of the child. McDonald v. McDonald, 39 So.3d 868, 880( 37) (Miss.2010). In determining the best interest of the child a chancellor should weigh and address the Albright factors. Albright v. Albright, 437 So.2d 1003, 1005 (Miss. 1983). However, the Mississippi Supreme Court will not hesitate to reverse a chancellor when his findings are manifestly wrong or when he has applied an erroneous legal standard. Tilley v. Tilley, 610 So.2d 348, 351 (Miss.1992); Faries v. Faries, 607 So.2d 1204, 1208 (Miss.1992). The Mississippi Supreme Court has repeatedly held that only parental behavior that poses a clear danger to the child's mental or emotional health can justify a custody change. Morrow v. 6 Morrow, 591 So.2d 829, 833 (Miss.1991) (citing Ballard v. Ballard, 434 So.2d 1357, 1360 (Miss.1983)). As stated in Ballard, 434 So.2d at 1360, a change in custody is a jolting, traumatic experience. It is only that behavior of a parent which clearly posits or causes danger to the mental and emotional well-being of a child (whether such behavior is immoral or not), which is sufficient basis to seriously consider the drastic legal action of changing 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 Modifications are subject to reversal where the court did not find an adverse material change before considering a child s best interest. See Ortega v. Lovell, 725 So.2d 199, (Miss. 1998); Pace v. Owens, 511 So.2d 489, 491 (Miss. 1987)(no findings with regard to material change, adversity, or best interest); Thornell v. Thornell, 860 So.2d 1241, 1243 (Miss. Ct. App. 2003)(reversing custody modification where court stated material change had occurred but did not provide findings) cf. Pruett v. Prinez, 979 So.2d 745, 750 (Miss. Ct. App. 2008)(court should find material change before determining adverse impact); Powell v. Powell, 976 So.2d 358, (Miss. Ct. App. 2008)(Albright factors not reached unless court finds a material change in circumstances); Gray v. Gray, 969 So.2d 906 (Miss. Ct. App. 2007)(rejecting mother s argument that chancellor should have considered Albright factors; no material change in circumstances found); Balius v. Gaines, 914 So.2d 300, 310 (Miss. Ct. App. 2005)(court properly refused to proceed to Albright analysis where petitioner father did not prove material change). 7 The custody modification in the case at hand was based solely on Gavin's preference to spend half of the time with his Mother and there simply was no evidence presented that a material change in circumstances adversely affecting Gavin had occurred in the custodial home. See Self v. Lewis, 64 So.3d 578, 584( 29) (Miss.Ct.App.2011). Catherine provided no evidence of a material change in circumstances; nor did the chancellor make any factual findings that a material change in circumstances had occurred. When asked on cross-examination if there were any problems with Greg s home, Catherine admitted: No. Tr Gavin freely admitted that there were no problems at Dad s house and that nothing mean or otherwise was being done to him in Greg s care. Tr. 80. He also stated that his grades were good. Tr. 82. Gavin also stated he had a good relationship with his step-mother and his step-brother. Tr. 81. He noted that he played sports at his school and Greg and sometimes Catherine were at his games. Tr Gavin noted the only thing he was upset about was Greg taking some of his privileges away for lying. Tr That was when he talked to Catherine about living with her half of the time. Tr A child's preference of where to live is a factor to be considered in determining child custody. Potts v. Windham, 56 So.3d 589, 593( 15) (Miss.Ct.App.2011) (citing Albright v. Albright, 437 So.2d 1003, 1005 (Miss.1983)). However, if there is no finding of a material change in circumstances, then there is no occasion for an analysis of the Albright factors. See Id. In a similar case, Dykes v. McMurry, 938 So.2d 330 (Miss.Ct.App.2006), the Appellate Courts upheld a chancellor's refusal to modify custody, as the only basis for modification presented by the non-custodial parent was one of the children's stated preference to live with his father. The Appellate Court noted that there was no evidence that the child suffered any abuse or felt threatened at his custodial home; in fact, the child appeared to be healthy and well-adjusted in his mother's home. Id. at 336( 22). Therefore, the Appellate Court concluded that the evidence 8 was insufficient to show there ha[d] been a material change in circumstances adverse to his children's well-being sufficient to warrant a change in custody. Id. The Appellate Court has recognized Mississippi Code Annotated Section (Rev.2004) allows a child who has attained the age of 12 to state a preference to the court as to whether he or she would rather live with her mother or father. However, the trial court is not bound to follow the child's preference. See Polk v. Polk, 589 So.2d 123 (Miss.1991). Furthermore, 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 noncustodial 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). Were it otherwise, a child might attempt to blackmail the custodial parent into granting favors for fear of losing custody; or a non-custodial parent might attempt to bribe the child into requesting a change in custody. Grounding of a child is not a substantial nor material change in circumstances. Even if it was, at best it would be construed as an isolated incident. In Potts, 56 So.3d at 593( 14), the Appellate Court affirmed the chancellor's findings that allegations the child's mother and stepfather argued and cursed in front of the child, and two occasions of physical violence between the mother and her husband, described as isolated incidents, were insufficient to warrant a modification of custody. None of these incidences warrant a finding of a material change in circumstances adversely affecting the welfare of the child. The issue of custody is extremely important to a family, which is why this standard is so crucial to the determination of whether custody should be modified. 9 The chancellor s sole legal analysis without citing the case was the argument of Catherine s attorney concerning Jones v. Jones, 878 So.2d 1061, 1066 (Miss. Ct. App. 2004) where custody was modified based on a child s preference along with some other factors. The Jones case is radically different from the facts of the case at hand. In Jones, custody was modified from the Father to the Mother based on the preference of the child and the chancellor making extremely detailed findings along with there being substantial evidence that children were being psychologically scarred in their Father s home with extensive documented evidence of frequent stomach aches, fits of anger, and outbursts of tears, with one of the children having to see a counselor at school as a result of the conditions in the Father s home. None of this was present in this case. In Ortega v. Lovell, 725 So.2d 199, 204( 26) (Miss.1998), the Mississippi Supreme Court held that [b]ecause there was no showing of a material change in circumstances, the chancellor erred in modifying custody, and it reversed and rendered the judgment of the chancery court. In this case, the chancellor simply stated that she was modifying custody to joint legal and physical custody. Tr The chancellor made no attempt to discuss whether there was a material change in circumstances in Greg's home adversely affecting Gavin's welfare. Furthermore, the record would not support such a finding. In the case at bar there was almost no mention of Gavin s best interest in the chancellor's ruling. The record is completely devoid of any change in circumstances since the last order (2010) entered by the court, granting Greg custody of Gavin material, substantial, or otherwise. While the Appellate Court will not set aside a chancellor's finding of fact on such a matter as custody unless the finding is manifestly wrong or is not supported by substantial credible evidence, in the present case there was no finding of evidence, credible or otherwise. There was no evidence of abuse, neglect or mistreatment of any kind by Greg to Gavin. The chancellor from her ruling essentially modified 10 custody because Greg was not allowing more visitation than required by the Court order. The law does not require any parent to allow extra visitation and Greg seemed to be accused of contempt by Catherine simply because he followed the Court order. There was simply no evidence which passes the test of when the Appellate Court views a modification of custody favorably. For the reasons as noted above, the judgment of the Chancery Court of DeSoto County, Mississippi must be reversed and rendered. CONCLUSION The chancellor s findings regarding modification of custody are 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 rendered with custody being returned to Greg 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 and render 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. 11 This the 3 rd day of December, Respectfully s
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