May v. Brown

390 So.3d 996

Vashelle MAY, Appellant

v.Brian Hunter BROWN, Appellee

NO. 2023-CA-00624-COA

Court of Appeals of Mississippi.

07/16/2024

CALHOUN COUNTY CHANCERY COURT, HON. LAWRENCE LEE LITTLE, JUDGE

ATTORNEY FOR APPELLANT: EDWARD DUDLEY LANCASTER

ATTORNEY FOR APPELLEE: PAUL M. MOORE JR., Calhoun City

BEFORE CARLTON, P.J., McDONALD AND McCARTY, JJ.

CARLTON, P.J., FOR THE COURT:

¶1. Vashelle May appeals from the chancery court’s child-custody modification order that granted Brian Hunter Brown "primary care[,] control[,] and custody of the [couple’s] minor child [P.M.B.]."¹ Because we find that substantial evidence in the record supports the chancellor’s custody modification, we affirm the order of the Calhoun County Chancery Court.

PROCEDURAL HISTORY AND STATEMENT OF FACTS

¶2. May and Brown had a son, P.M.B., who was born in February 2017. May and Brown were not married. In July 2017, May filed a "Complaint for Child Custody, Child Support and Other Relief" against Brown in the Calhoun County Chancery Court. Among other relief, May sought "primary care, control and custody of P.M.B." and "joint legal custody."

¶3. An "Agreed Order" was entered in February 2018 addressing, among other matters, child custody, child support, and visitation.² The Agreed Order granted May "the primary physical care, custody and control of [P.M.B.]" and further provided that "[t]he parties shall share joint legal custody of [P.M.B.]." "Joint legal custody" was defined in the Agreed Order with reference to Mississippi Code Annotated section 93-5-24(5)(e) (Rev. 2021), which provides: " ‘joint legal custody' means that the parents or parties share the decision-making rights, the responsibilities[,] and the authority relating to the health, education[,] and welfare of a child [(i.e., P.M.B.)]." Miss. Code Ann. § 93-5-24(5)(e). The Agreed Order further provided that the parties acknowledge "that they are both obligated each to the other to exchange information concerning the health, education[,] and welfare of the minor child, and to confer with one another in the exercise of decision-making rights, responsibility[,] and authority." Id.

¶4. Brown was ordered to pay $150.00 per month in child support and was awarded visitation every other weekend, four weeks in the summer months of June and July, and specified times for holidays, birthdays, and the week of spring break once P.M.B. began kindergarten.

¶5. The Agreed Order set forth nineteen rules and obligations of the parties, including, in relevant part:

[May] shall keep [Brown] informed of the child’s school and extracurricular activities, as well as school progress, if applicable, including providing copies of report cards when the child reaches school age.

Both parties agree that if either of them has knowledge of any illness, accident, or other circumstances seriously affecting the health or welfare of the child, [Brown] or [May], as the case may be, will promptly notify the other of such circumstances.

The parties shall exert every reasonable effort to foster a feeling of affection between the child and the other party. Neither party shall do anything which may estrange the child from the other party or injure the opinions of the child as to [May] or [Brown], or which may hamper the free and natural development of the child’s love and respect for the other party.

….

Each parent shall notify the other of any plans to travel out-of-state with the minor son at least three (3) days in advance of travel.

¶6. In late July 2022, May moved to Plano, Texas. In August 2022, Brown filed a "Petition for Modification of Child Custody, Contempt and Other Relief," averring that May’s move from Mississippi to Texas resulted in a "material change in circumstances" making "joint legal custody improbable and impossible" and that it would be in P.M.B.’s best interest for Brown to be awarded the "primary physical care, control[,] and custody of [P.M.B.]." May filed an answer to Brown’s petition, denying Brown’s averments. She also filed a counterclaim seeking, among other things, a modification of the. February 2018 Agreed Order to allow Brown supervised visitation only. Brown denied May’s averments in his response to May’s counterclaim.

¶7. The chancery court held a two-day trial on Brown’s petition and May’s counterclaim beginning on February 22, 2023.³ Both parties were represented by counsel. We begin with a brief overview of the trial, followed by a summary of the testimonies and evidence presented.

¶8. Brown presented his case first. He began by calling May as an adverse witness.⁴ Following May, Brown testified, as well as Brown’s fiancée Danica Alred and Brown’s grandmother Linda Butler (sometimes referred to as Memaw Linda).

¶9. At the close of Brown’s case-in-chief, May moved ore tenus to dismiss Brown’s petition, asserting that Brown failed to present sufficient evidence that there was a material adverse change in circumstances resulting from her move to Texas that would justify modifying child custody. After hearing counsel’s arguments, the chancellor denied May’s motion to dismiss.

¶10. May proceeded with her case. May’s first witness was Brother Will Turner, who was associated with Pleasant Ridge Church in Banner, Mississippi. Following Brother Turner, May testified. After the close of May’s case, Brown testified as a rebuttal witness.

¶11. At trial, the parties’ testimonies established that May and Brown had one child together, P.M.B., who was bom in February 2017. P.M.B. had just turned six at the time of trial. May and Brown were never married. They lived together in Calhoun County, Mississippi, until they separated in June 2017.

¶12. When May and Brown separated and entered into the February 2018 Agreed Order governing custody and visitation, the parties lived in adjacent Mississippi counties. Brown lived in Houlka in Chickasaw County, and May lived in Calhoun County. As set forth above, the February 2018 Agreed Order granted "primary" physical custody to May. May and Brown had joint legal custody. Brown had visitation with P.M.B. every other weekend, specified times for holidays, four weeks in the summer, and the week of spring break every even year to begin when P.M.B. began kindergarten.

¶13. May acknowledged that before she moved to Texas, she and Brown had a good relationship as far as abiding by the visitation schedule and agreeing to additional visitation times than just those in the Agreed Order. She also testified that in 2019 and 2020, she had taken out-of-state job opportunities to help herself financially. In 2019, May worked on a pipeline in Texas for several months. Brown testified that he was living with his grandmother (Butler) at that time and had custody of P.M.B. for weeks at a time while May was gone during the first few months of 2019. Brown took care of P.M.B. with Butler’s help.⁵ In the fall of 2019 or early 2020, May accepted a job in Nebraska, and P.M.B. was in Brown’s custody for four months.

¶14. May, Brown, and Butler all testified that Butler helped both Brown and May take care of P.M.B. and that Butler was very involved with P.M.B.’s life. May testified that P.M.B. "loves his Memaw Linda," and that she (May) "values their relationship." May acknowledged her confidence that Butler could take care of P.M.B., though she (Butler) was getting older. May further acknowledged that she has no problem with the family support system Brown has to help him with P.M.B. May also recognized that Brown and P.M.B. have a "great relationship," and she "values their relationship" together.

¶15. Brother Turner testified that he and his wife have known May and P.M.B. for about two years (at the time of trial). He did not know Brown and had not observed Brown with P.M.B. May cleaned the Turners’ home, and they helped her purchase their car through owner-financing. Brother Turner and his wife spent time with May and P.M.B. before May moved to Texas, and he and his wife saw P.M.B. after May moved when May and P.M.B. visited Mississippi. According to Brother Turner, P.M.B. is "just a normal, happy kid" with "several mamas … [who] love on him" at Pleasant Ridge Church in Banner, Mississippi.

¶16. In "about 2021," May established her own construction and residential cleaning business and, at the time of trial, had one full-time and one part-time employee in Mississippi and one part-time employee in Texas. May moved to Plano, Texas, with P.M.B. in late July 2022. Plano is approximately eight hours from Calhoun County, Mississippi.

¶17. May testified that she told Brown during a phone call on July 26, 2022, that she was moving to Texas. She said that she also sent him a text message in January 2022 stating, "I’m going to Texas 4-13 to see about expanding my business." Although she had signed a lease for an apartment on July 27, 2022, May did not tell Brown her Texas address when she moved.

¶18. May testified that in early August (after she moved to Texas) she "let his dad get his … visitation [with P.M.B.]" in Mississippi. May said that she allowed the visitation on the condition that Brown would meet her in Monroe, Louisiana, with P.M.B. on the following Sunday. Brown did not take P.M.B. to Louisiana on that day. According to Brown, he followed the advice of his lawyer so that they could get May to come to Calhoun County, Mississippi, to pick up P.M.B. so she could be served with process for this action. Brown and his lawyer acted this way because May had not told Brown where she was living in Texas. Brown had enrolled P.M.B. in school in Houlka, Mississippi. May traveled to Mississippi to get P.M.B., and she and P.M.B. returned to Texas.

¶19. May admitted that she did not allow Brown any further visitation with P.M.B. for the rest of August or in September, October, and most of November.

¶20. Through correspondence exchanged between the parties’ lawyers, Brown agreed to May’s offer to allow visitation on October 1, but May then withdrew the offer. According to May, she was not given enough...