Michael Warren Robbins v. Katherine Antoinette Robbins
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2008-CA-02141-COA
MICHAEL WARREN ROBBINS
APPELLANT
v.
KATHERINE ANTOINETTE ROBBINS
DATE OF JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEY FOR APPELLANT:
ATTORNEY FOR APPELLEE:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
APPELLEE
09/26/2008
HON. JOHNNY LEE WILLIAMS
FORREST COUNTY CHANCERY COURT
JAY L. JERNIGAN
DAVID ALAN PUMFORD
CIVIL - CUSTODY
CUSTODY TO REMAIN WITH MOTHER
AFFIRMED - 06/29/2010
BEFORE MYERS, P.J., ISHEE AND ROBERTS, JJ.
ISHEE, J., FOR THE COURT:
¶1.
Michael Robbins (Michael) and Katherine Robbins (Kathy) were granted a divorce
on the ground of irreconcilable differences on August 18, 2005. At the time of their divorce,
Michael and Kathy agreed that Kathy would have custody of their minor child, Madelyn
Sunshine (Maddie). Thereafter, Michael filed a complaint for modification of custody in the
Forrest County Chancery Court. Michael alleged that he should be granted full custody of
Maddie because Kathy had medical problems which included morphine use, weight
fluctuations, and an eating disorder. Michael also stated that there were problems with his
visitations with Maddie. Following a one-day trial on the matter, the chancery court found
that Kathy was to retain paramount physical custody of Maddie, subject to Michael’s
continued visitation. The chancery court also granted Kathy’s request for an increase in child
support commensurate with the Mississippi child-support guidelines. It is from this decision
that Michael now appeals and asserts that:
I.
The chancery court failed to properly apply the standards in a
modification of custody from one parent to the other parent, and
II.
The chancery court failed to properly examine the Albright factors in
its decision.
Finding no reversible error, we affirm.
STANDARD OF REVIEW
¶2.
“When reviewing a chancellor's decision, [an appellate court] will accept the
chancellor's findings of fact as long as the evidence in the record reasonably supports those
findings.” Norton v. Norton, 742 So. 2d 126, 128-29 (¶8) (Miss. 1999) (citing In re Estate
of Taylor v. Thompson, 609 So. 2d 390, 393 (Miss. 1992)). An appellate court will only
disturb a chancellor’s findings in instances where the findings are clearly erroneous or an
erroneous legal standard was applied. Id. at 129 (¶8) (citing Hill v. Se. Floor Covering Co.,
596 So. 2d 874, 877 (Miss. 1992)).
DISCUSSION
¶3.
Michael first asserts that the chancery court failed to properly apply the standards in
a modification of custody from one parent to the other parent.
The law on custody
modification is well established. “In order for child custody to be modified, a non-custodial
party must prove (1) there has been a substantial change in the circumstances affecting the
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child; (2) the change adversely affects the children's welfare; and (3) a change in custody is
in the best interest of the child.” Johnson v. Gray, 859 So. 2d 1006, 1013 (¶33) (Miss. 2003).
¶4.
Michael asserts that all three of these factors have been satisfied. Michael argues that
there has been a substantial change in the circumstances affecting Maddie because Kathy:
(1) has been hospitalized more than eighteen times since their divorce, (2) regularly uses
prescribed morphine since their divorce, (3) continues to smoke cigarettes in spite of her
worsening health condition, (4) fails to take the child to regularly scheduled medical
appointments, (5) fails to get any psychological help in regard to her eating disorder, and (6)
fails to allow his visitation when it conflicts with Maddie’s cheerleading schedule.
¶5.
Michael argues that this change in circumstances has adversely affected Maddie
because Kathy: (1) is not at home due to her hospitalizations, and Maddie is cared for by
others, (2) uses morphine on a regular basis causing her parenting skills to decline, (3)
smokes cigarettes, and Maddie is subjected to second-hand smoke, (4) fails to take Maddie
to her medical appointments, and (5) prevents his normal visitation with Maddie.
¶6.
In its ruling, the chancery court recognized that Kathy had suffered some serious
health issues since the divorce. However, all of these health issues were pre-existing
conditions that she dealt with both prior to and at the time of the divorce. The chancery court
found that despite Kathy’s health issues and hospital stays, there had been no evidence
presented by Michael indicating that Maddie lived in any sort of adverse conditions. Maddie
had her own room, friends, a dog, and was being tested for her school’s gifted program. The
chancery court also noted that Maddie had always been well-taken care of by her maternal
grandparents whenever Kathy was in the hospital.
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¶7.
Kathy testified that she occasionally smokes cigarettes; she smoked cigarettes during
her marriage to Michael and at the time of their divorce; and Michael was aware that she
smoked cigarettes. Kathy also testified that she did not smoke cigarettes around Maddie.
Kathy further testified that she does not use illegal drugs and provided the chancery court
with her negative drug-test results. Kathy asserts that the only medication she takes is
prescribed to her by her physician.
¶8.
Michael failed to provide any evidence in support of his allegation that Kathy suffers
from an eating disorder. At trial, evidence was presented that Kathy has never been
diagnosed with any form of an eating disorder and was of average or above-average weight.
The chancery court found that there had been no material changes in circumstances. We
agree with the findings of the chancery court on this issue; therefore, this issue is without
merit.
¶9.
Because Kathy’s health issues were in existence prior to the divorce and Michael was
aware of them, there has been no material change in circumstances. Despite her health
issues, Kathy has remained employed and has ensured that Maddie is well-taken care of
when she has had to be hospitalized. Therefore, this issue is also without merit.
¶10. THE JUDGMENT OF THE FORREST COUNTY CHANCERY COURT IS
AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE
APPELLANT.
KING, C.J., LEE AND MYERS, P.JJ., IRVING, GRIFFIS, BARNES,
ROBERTS AND MAXWELL, JJ., CONCUR.
CARLTON, J., NOT
PARTICIPATING.
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