Hammons v. Hammons

289 So.3d 1214

David W. HAMMONS, Appellant

v.Jessica E. HAMMONS, Appellee

NO. 2018-CA-00708-COA

Court of Appeals of Mississippi.

January 21, 2020

ATTORNEY FOR APPELLANT: RENEE M. PORTER

ATTORNEY FOR APPELLEE: ALBEN NORRIS HOPKINS JR., Gulfport

BEFORE BARNES, C.J., McCARTY AND C. WILSON, JJ.

McCARTY, J., FOR THE COURT:

¶1. This is a case about custody modification. The Harrison County Chancery Court granted a divorce where the mother was awarded sole physical custody of the couple's two children with visitation granted to the father. Several years later, the father filed a motion seeking a custody modification. The father alleged that the environment provided by the mother was harmful to the child's best interest. The chancery court found that there was not a material change or adverse circumstances warranting modification. We agree and affirm the judgment of the chancery court.

FACTS AND PROCEDURAL HISTORY

¶2. Jessica and David Hammons were divorced, and afterward David married Tiffany Ladner. Tiffany was previously married to Mike Ladner, whom Jessica Hammons is currently dating. As the chancery court concluded, "This situation has resulted in the parties' personal lives remaining enmeshed, leaving them locked in conflict."

¶3. After David and Jessica's contentious divorce, Jessica was given sole custody of the couple's two children: their daughter Susan, and their son B.H.H.; David was awarded visitation.¹ Later, an agreed judgment modifying custody and visitation was entered. Per the agreement, Jessica retained sole custody of both children, and David voluntarily gave up his week-day visitation.

¶4. Many motions were filed in the years following the judgment of divorce. Serving as the prelude to the present case was Jessica's motion for contempt against David. She claimed David was in arrears for clothing- and support-related expenses and unreimbursed medical bills. David responded with a motion for contempt, modification of custody, and temporary relief. David also asked for Susan's emancipation and his support obligations to be set aside.

¶5. This case is not about Susan, but the events and circumstances giving rise to her emancipation inform this appeal. In his motion for emancipation, David claimed that he had not had visitation with Susan in years. The alienation between father and daughter began when Susan was picked up by the police for drinking alcohol. David reacted by screaming that Susan was "sleeping around" and that Jessica was "raising her to be a whore like you."

¶6. Four years prior to David's motion, an altercation took place in which David hit Jessica. While Susan was not present for the assault, it irreparably damaged the relationship between her and her father. Afterward, Susan refused to visit or speak with her father. Susan remains estranged from David to this day.

¶7. In support of his motion for custody modification, David claimed that B.H.H.—who was fourteen years old at the time of the motion—was experiencing problems like his sister Susan, which David attributed to Jessica's poor parenting. David alleged that Jessica "encouraged" Susan to have a sexual relationship with her boyfriend. He also maintained that Jessica condoned Susan's underage alcohol use. David's other concerns included B.H.H.'s consumption of energy drinks, his grades, and his viewing pornography.

¶8. At the conclusion of David's case, the chancery court rendered a bench opinion temporarily granting custody of B.H.H. to David. The court found that there was an "erosion" of the parental relationship between B.H.H. and David caused by Jessica, as well as an "erosion" of B.H.H.'s lifestyle. David retained custody of B.H.H. for nearly two years following the temporary order.

¶9. Subsequent to entering the temporary order, but before having rendered a final judgment, the original chancellor recused from the case. The case was reassigned to a different chancellor, who also recused. It was then reassigned to the trial judge who presided over the case to its conclusion.

¶10. After reviewing the entire extensive case file and conducting a thorough Albright analysis, the chancery court held that it was in B.H.H.'s best interest to return to Jessica's custody.² In the final judgment, the chancery court found (contrary to David's allegations) that Jessica actually attempted to dissuade Susan from having sex. When she was unable to do so, Jessica arranged for Susan to start using birth control. Further, Jessica did not condone Susan's alcohol usage except while on a post-graduation cruise where she thought it was acceptable for Susan to drink. The chancery court found that "Jessica did her best to provide a proper moral upbringing for Susan, but that Susan chose to live as she does." Susan has since graduated high school with honors, earned her college degree, married, and become a mother.

¶11. Importantly, the chancery court found that David had anger issues that severely interfered with his parenting skills. The court found that both of David's children were afraid of him; he hit Jessica in front of B.H.H.; called B.H.H. a "sorry son" for not posting a picture on social media of the skateboard David had given him; and broke B.H.H.'s phone in a fit of anger.

¶12. The final judgment was filed on June 26, 2017. A revised judgment was filed two days later and was entered on June 29, 2017. On July 10, 2017, David filed a motion to set aside the revised judgment and/or for a new trial and a motion to stay the revised final judgment pending appeal. The lower court found David's motions to be untimely and dismissed for lack of jurisdiction. David now appeals to this Court seeking relief.

STANDARD OF REVIEW

¶13. "This Court will not disturb a chancellor's findings of fact when supported by substantial evidence unless the [chancery court] abused [its] discretion, was manifestly wrong, clearly erroneous, or an erroneous legal standard was applied." Anderson v. Anderson , 8 So. 3d 264, 267 (¶7) (Miss. Ct. App. 2009). "However, questions of law are reviewed de novo." Id.

DISCUSSION

I. There were no grounds to support a custody modification.

¶14. Previously, David—as the non-custodial parent—agreed to a custody and visitation modification, allowing Jessica to retain sole custody. He now wishes to modify that agreed order. The chancery court denied his motion for modification, and David requests this Court to reverse the denial.

¶15. "It is important that children have as much stability as possible when their parents are divorced." Bowden v. Fayard , 355 So. 2d 662, 664 (Miss. 1978). "Once the court has determined which parent should have custody of the children, then they should be allowed the stabilizing influence of knowing where home is." Id. However, there are occasions when custody modification is necessary.

¶16. Mississippi utilizes a three-prong test to determine whether custody modification is warranted. First, there must be a material change in circumstances of the custodial parent. Sheridan v. Cassidy , 273 So. 3d 783, 786 (¶10) (Miss. Ct. App. 2018). The circumstances presented for consideration must have arisen after the entry of the first custody order. Id. The purpose of modification is not to allow a second bite at the apple by relitigating the same facts. See Id. The burden of proving the material change in circumstances falls on the party seeking modification. McDonald v. McDonald , 39 So. 3d 868, 880 (¶37) (Miss. 2010).

¶17. Second, the moving party must show that the change in circumstances has an adverse effect on the minor child. Sheridan , 273 So. 3d at 786 (¶10) ; Williams v. Willis , 49 So. 3d 122, 124 (¶7) (Miss. Ct. App. 2010) ("Any change in custody must be predicated on the conduct of the custodial parent that poses a danger to the mental or emotional health of the child.").

¶18. Third, modification must be in the best interest of the minor child. Sheridan , 273 So. 3d at 786 (¶10). "In appeals from child-custody decisions, our polestar consideration, like the [chancery court's], must be the best interest of the child."

Lindsey v. Willard , 111 So. 3d 1260, 1264 (¶12) (Miss. Ct. App. 2013). Determination of the child's best interest is based on an application of the Albright factors to the facts of the case.³

A. The temporary order was not a final judgment.

¶19. David's argument is predicated, in part, on the fact that the chancery court entered a temporary order granting him custody of B.H.H. He reasons that because the chancery court ordered an immediate change in custody, it could not have reasonably declined to find a change in circumstances adverse to B.H.H.'s best interest.⁴

¶20. "A temporary custody order is just that, temporary; it does not change the underlying burden of proof." Sanders v. Sanders , 281 So. 3d 1043, 1054 (¶43) (Miss. Ct. App. 2019). A determination one way for a temporary order does not require the same result in the permanent order. "The [chancery court] must conduct an Albright analysis and decide the issue of permanent custody de novo regardless of the temporary order." Id. The temporary order was entered after David had concluded his argument and was based strictly on evidence he presented. At the time of the order, Jessica had not yet been given the opportunity to present her case. The chancery court did not abuse its discretion when it entered a final judgment different from the temporary order after all evidence had been presented.

B. The environment provided by Jessica is not adverse to B.H.H.'s best interest.

¶21. David argues that evidence of an adverse effect on the child is not required and that custody should be modified because the environment provided by Jessica was adverse to B.H.H.'s interest. In support, David relies on Riley v. Doerner , 677 So. 2d 740 (Miss. 1996). In that case, the Supreme Court held it was not necessary to prove an adverse effect in circumstances where the child is in an inherently dangerous or unsuitable situation. Id. at 744. "[W]hen the environment provided...