Stephanie (Sadler) McMurry v. William Sadler
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IN THE COURT OF APPEALS
OF THE
STATE OF MISSISSIPPI
NO. 2001-CA-01379-COA
STEPHANIE (SADLER) MCMURRY
v.
WILLIAM SADLER
DATE OF TRIAL COURT
JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEY FOR APPELLANT:
ATTORNEY FOR APPELLEE:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
APPELLANT
APPELLEE
08/24/2001
HON. EDWARD C. PRISOCK
NESHOBA COUNTY CHANCERY COURT
LAUREL G. WEIR
STEVEN DETROY SETTLEMIRES
CIVIL - DOMESTIC RELATIONS
DISMISSED MOTION FOR MODIFICATION FOR
FAILURE TO ALLEGE THAT A MATERIAL CHANGE IN
CIRCUMSTANCES HAD OCCURRED WHICH
ADVERSELY AFFECTS THE MINOR CHILDREN
DISPOSITION:
AFFIRMED - 08/06/2002
MOTION FOR REHEARING FILED: 8/13/2002
CERTIORARI FILED:
MANDATE ISSUED:
BEFORE SOUTHWICK, P.J., BRIDGES, AND BRANTLEY, JJ.
BRANTLEY, J., FOR THE COURT:
¶1. Stephanie Sadler McMurry sought to regain custody of her two minor children in a motion for
modification and change of former judgment. The Chancery Court of Neshoba County dismissed her
motion for failing to state or allege that a material change in circumstances has occurred which adversely
affects the children. Stephanie appeals, asserting that the chancellor erred in dismissing the motion without a
hearing on the merits. Finding no error, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2. The parties herein, William Sadler and Stephanie Sadler McMurry, were divorced in April 1991. Two
children were born of the marriage, namely, Thomas J. Sadler, born August 23, 1988, and Christopher A.
Sadler, born August 22, 1989. Primary custody and care of the minor children of the parties was awarded
to Stephanie. In February 1997, following a modification hearing, William was awarded primary care and
custody of the children and Stephanie was granted visitation privileges. In 1999, William moved to South
Carolina taking the children with him. In 2000, William agreed for Thomas to temporarily return to live with
Stephanie for the 2000-2001 school year so he could attend a local school and be taught by his
grandmother.
¶3. On June 2, 2001, William brought Christopher to join his mother and brother for an agreed visitation set
out in the modified order. Both children were supposed to return to South Carolina at the end of the
visitation. On June 28, Sadler attempted to contact and inform Stephanie that he would pick the children up
in Talladega, Alabama, on June 30 according to their agreement. William went to the location, but
Stephanie and her two sons were not there. William drove to Mississippi to pick up his children the
following week. Christopher was there, but Thomas was not. Stephanie did not return Thomas as provided
for in the court order. William then, without success, requested the sheriff's department to aid him in the
return of Thomas.
¶4. On July 16, 2001, William filed a writ of habeas corpus requesting the court to require Stephanie to
appear with Thomas and show cause why physical custody should not be immediately restored to William.
The hearing began on this matter and Stephanie was present, but not represented by counsel. After the
hearing that day, she obtained counsel and filed her response to the writ and a motion for modification and
change of former judgment seeking custody of the children. The motion asserted improved changes in the
non-custodial home, a possible arrest of William on false pretense, a mere assertion that William was not
rearing, training, or educating the boys as they should be, and claims that William travels away from the
home for weeks while leaving the boys with a live-in girlfriend. The motion also stated that it would be
detrimental for the boys to leave her home, especially Thomas Jeremy Sadler, because his grades improved
while staying with her. The hearing on the writ of habeas corpus was continued the next day. An order in
response to the writ of habeas corpus was entered by the chancery court immediately returning custody of
Thomas to William.
¶5. William filed an answer to Stephanie's motion for modification and change of former judgment, wherein
he included the following affirmative defenses: "[t]he motion fails to state a claim upon which relief can be
granted" and "[t]he motion fails to show that if indeed a material change in circumstances has occurred, as
alleged, that said material change in circumstances is adverse to the best interest of the minor children."
William also included in his filing a motion to dismiss.
¶6. At the beginning of the hearing on August 14, 2001, for Stephanie's motion for modification and change
of former judgment, William objected to the motion contending that the motion did not state or allege that a
material change in circumstances had occurred which adversely affected the minor children. In response,
Stephanie asserted that the motion did contain allegations of material changes in the circumstances and
parties involved. The chancellor stated that a material change is not enough and asked Stephanie's counsel
twice, "what is the other word that is missing," to which the chancellor also answered, "adverse."
¶7. Stephanie's counsel responded, "that is just a conclusion that we have got to reach. Words alone, that
ain't the facts we allege." He further noted that they could amend the statement by including, "that it would
be adverse for the children to stay with [William]." The chancellor replied "that is not the case law either."
¶8. The chancellor then sustained the motion to dismiss with leave to amend, noting that the substance of the
amendment "has got to be adverse." The chancellor also stated that "the pleadings were insufficient" and
"not in a position now to go to trial." Stephanie's counsel amended her motion ore tenus. The substance of
the amendment was that if the modification granting the mother custody was not allowed, the children would
be adversely affected. The chancellor responded, asking counsel twice to confirm that the substance of the
motion to amend was "that if the decree is not modified there will be an adverse effect." Counsel
affirmatively responded both times.
¶9. Following the amendment, counsel for William renewed his motion to dismiss asserting that the
amendment failed to state or allege that a material change in circumstances had occurred which adversely
affected the minor children. The chancellor sustained William's motion and dismissed the case. A final order
was entered on August 23, 2001, dismissing the motion for modification and change of former judgment
with prejudice.
STANDARD OF REVIEW
¶10. The chancellor's determination that the motion did not meet the pleading requirements was a finding of
law. Therefore, this court reviews the chancellor's interpretation and application of the law de novo.
McCubbin v. Seay, 749 So. 2d 1127 (¶5) (Miss. Ct. App. 1999).
ASSIGNMENTS OF ERROR
I. WHETHER THE COURT ABUSED ITS DISCRETION BY NOT CONDUCTING A
HEARING AND AWARDING APPELLANT CUSTODY OF HER TWO MINOR
CHILDREN.
II. WHETHER THE PLEADINGS AND THE FACTS EFFICIENTLY SHOW A
CHANGED CONDITION AND CIRCUMSTANCE THAT ADVERSELY AFFECTED
THE MINOR CHILDREN AND WHETHER THE COURT ERRED IN NOT
GRANTING THE MODIFICATION AND AT LEAST HAVING A HEARING ON THE
MERITS.
DISCUSSION
¶11. In this case, the chancellor ruled the pleadings filed by Stephanie as a matter of law were not in proper
form to go to trial because they did not state there had been a material change in circumstance which
adversely affected the children. She was given two additional opportunities by the chancellor to correctly
amend her pleadings but still failed to incorporate the necessary language to permit the case to proceed on
its merits. Although Stephanie specifically presents the above two issues as assignments of error, these
issues are being consolidated into one issue for review.
I. WHETHER THE CHANCELLOR ERRED BY DISMISSING THE MOTION FOR
MODIFICATION.
¶12. Stephanie argues that the court erred by dismissing her motion without a hearing on the merits. In
order for a chancellor to have the inherent power and duty to proceed with a custody modification hearing
and to render a judgment, the court must have jurisdiction of the parties and the subject matter and in such a
proceeding, the issue must be before the court by proper pleadings and supported by competent evidence.
See Wansley v. Schmidt, 186 So. 2d 462, 465 (Miss. 1966). The chancellor found that the pleadings as a
matter of law failed to state or allege that a material change has occurred which adversely affects the
children.
¶13. We now look to see whether a motion for modification of custody must allege that a material change in
circumstances has occurred which adversely affects the minor children. The Mississippi Supreme Court held
that the prerequisites to the modification of child custody are: (1) proving a material change in circumstances
which adversely affects the welfare of the child and (2) finding that the best interest of the child requires the
change of custody. Touchstone v. Touchstone, 682 So. 2d 374, 377 (Miss. 1996). In addition, for the
custody order to be modified so as to transfer custody to the non-custodial parent, the non-custodial parent
must prove that since the entry of the decree or order sought to be modified, a material change of
circumstances has occurred within the custodial home which adversely affects the minor child's welfare.
Polk v. Polk, 589 So. 2d 123, 129 (Miss. 1991). Therefore, in order for the court to proceed on a matter
for custody modification, the pleadings must contain allegations that a material change has occurred which
adversely affects the child.
¶14. In the present case, we find that Stephanie did not specifically state or allege in her original motion that
a material change has occurred which adversely affects the children and did not correctly amend her
pleadings to include such an allegation. Inconsistent with prevailing case law, her amendments only alleged
that an adverse effect would occur if the modification was not granted. The court properly dismissed the
motion with prejudice since her original motion and amendments were insufficient to proceed on the merits
of the case. See Wansley, 186 So. 2d at 465. Therefore, we find that the chancellor did not err and this
assignment of error is without merit.
¶15. THE JUDGMENT OF THE NESHOBA COUNTY CHANCERY COURT IS AFFIRMED.
ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.
McMILLIN, C.J., SOUTHWICK, P.J., BRIDGES, THOMAS, MYERS AND
CHANDLER, JJ., CONCUR. KING, P.J., DISSENTS WITH SEPARATE WRITTEN
OPINION JOINED BY LEE AND IRVING, JJ.
KING, P.J., DISSENTING:
¶16. I dissent from the majority opinion herein. The majority affirms the chancellor's refusal to consider the
merits of McMurry's motion to change custody because it did not contain the magic word "adverse."
¶17. Pleadings in our trial courts are governed by the Mississippi Rules of Civil Procedure. In this case the
relevant rule is M.R.C.P. 8(a)(1), (e) (1) and (f), which provides:
(a) Claims for Relief. A pleading which sets forth a claim for relief, whether an original claim, counterclaim, cross-claim, or third-party claim, shall contain
(1) a short and plain statement of the claim showing that the pleader is entitled to relief, . . . .
(e) Pleading to Be Concise and Direct: Consistency.
(1) Each averment of a pleading shall be simple, concise, and direct. No technical forms of pleading
or motions are required. . . .
(f) Construction of Pleadings. All pleadings shall be so construed as to do substantial justice.
¶18. The adoption of this Rule eliminated the necessity of formal technical pleading, so called magic words
pleading. Instead a claimant is merely required to state his claim and its basis. In my belief, McMurry did
so.
¶19. The relevant portion of her motion reads as follows:
As shown by the Court file a judgment was entered granting custody of the minor children to the
mother and later modified and changed and the mother has paid the child support ordered for the
minor children even though she has had the exclusive care and custody of the minor child Thomas
Jeremy Sadler for more than one (1) year. The judgments are made a part of this Motion by reference
just as if copied fully therein.
1. There has been a material change in the parties and circumstances involved since the last
judgment was entered and the mother is now the most suitable, fit, and proper person to have
permanent care and custody of the minor children and the father is not. The mother has
remarried and is living a good Christian life and is an active member of Camp Dixon Church of God,
and the minor children have been in attendance at a Christian Youth Camp this summer under the
directions of the mother and they are of age and desire to live with their mother and it would be to
their best interest that they do so. The father William Sadler has been arrested for such crimes as
False Pretense in January of this year and is not rearing, training, and educating the boys as
they should be reared. The mother, Stephanie (Sadler) McMurry is the Movant and she makes
William Sadler the respondent in this Motion.
2. Both of the children have lived with the mother in Neshoba County, Mississippi, for the last month
and one of the children, Thomas Jeremy Sadler, has lived with the mother for more than one (1) year
and gone to school in Neshoba County, Mississippi, and it would be detrimental to their education
and they will loose the friends they have created if required to move. Thomas Jeremy Sadler last year
had failing grades and the father promised him that he would bring the child to the mother if he passed
and the child has greatly improved in his grades in school, and the father travels away for weeks at
a time and he left the children with a live in girlfriend. The children are Thomas Jeremy Sadler
born August 22, 1988, and Christopher--¶20. While McMurry's motion was perhaps subject to more artful drafting, it was nevertheless sufficient to
place Sadler on notice of her claim and entitle her to a resolution of that claim on its merits. One need only
read the passages of McMurry's pleading, which I have emphasized above to understand the nature and
basis of her claim. McMurry's pleading complies with M.R.C.P. 8 (a) (1) and (e) (1), which requires a
simple, concise and direct statement showing an entitlement to relief.
¶21. While McMurry's pleading is inartfully drafted, the chancellor and this Court's majority seem oblivious
to M.R.C.P. 8(f) which requires "[a]ll pleadings shall be so construed as to do substantial justice."
¶22. There is no justice, substantial or otherwise, in the refusal of the chancellor or this Court's majority to
decide Mrs. McMurry's case on the merits.
¶23. For these reasons, I would reverse and remand for a hearing on the merits of McMurry's claim.
LEE AND IRVING, JJ., JOIN THIS SEPARATE WRITTEN OPINION.
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