Tracy Graves v. Michael Haden
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2009-CA-01082-COA
TRACY GRAVES
APPELLANT
v.
MICHAEL HADEN
APPELLEE
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:
06/30/2009
HON. JAMES H.C. THOMAS JR.
LAMAR COUNTY CHANCERY COURT
MICHAEL ADELMAN
SHEILA HAVARD SMALLWOOD
CIVIL - CUSTODY
MODIFICATION OF CUSTODY GRANTED
AFFIRMED - 06/29/2010
BEFORE LEE, P.J., BARNES AND ROBERTS, JJ.
LEE, P.J., FOR THE COURT:
PROCEDURAL HISTORY
¶1.
Tracy Graves and Michael Haden are the biological parents of K.H., who was born
on May 18, 2005. The parties were never married. On February 15, 2008, an agreed order
was entered in the Chancery Court of Lamar County giving primary physical custody of K.H.
to Tracy. On October 13, 2008, Michael filed a motion for contempt against Tracy, alleging
that she had denied him visitation rights. Michael also sought a modification of custody.
¶2.
A hearing was held on the modification issue. On June 8, 2009, the chancellor
reversed the previous custody order, and Michael was granted physical custody of K.H..
Tracy was granted visitation rights and ordered to pay $175 per month in child support.
¶3.
Tracy now appeals, asserting the following issues: (1) the chancellor erred in changing
custody where there was no material change in circumstances adverse to the child and no
showing of improved circumstances on the part of the non-custodial parent, and (2) the
chancellor erroneously applied the Albright factors.
Finding no error, we affirm the
chancellor’s judgment.
FACTS
¶4.
Tracy gave birth to K.H. in 2005 while she was married to Derek Graves. Michael
was adjudicated to be K.H.’s father after a DNA test. Tracy has had custody of K.H. since
his birth. Tracy has two other children. The father of the oldest child, who was six years old
at the time of the hearing, is her husband, and the father of the youngest child is another man
who is no longer living. At the time of the hearing, she was in a relationship with another
man, whom she depends on for her financial needs in excess of her child support and
disability payments. Tracy does not have a job outside the home. She had moved eight times
in the two years prior to the hearing. Tracy moved to Texas to help care for her sister’s
children, but she has since moved back to Mississippi. The chancellor described her work
history as “spotty.” She had not worked in 2009 as of the hearing date. She has a tenthgrade education. She testified at the hearing that she planned to go back to school in order
to get a job and support herself. She has a relative who lives nearby who can help with
K.H.’s care. Tracy testified that K.H. was not involved in any community activities since
they had not lived anywhere long enough to get settled.
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¶5.
Michael was married, had one child, and was expecting another child at the time of
the hearing.
Michael has worked for a company installing commercial refrigeration
equipment for approximately ten years. He is usually away from home three nights a week
working. Michael’s wife testified that she was willing to help with K.H.’s care. K.H. was
active in church and other activities when in Michael’s custody, and Michael has extended
family that lives nearby.
¶6.
All witnesses testified that K.H. was a friendly, well-adjusted child who gets along
with each extended family. He had shown no signs of physical or mental limitations in
Tracy’s custody.
STANDARD OF REVIEW
¶7.
“This Court will not disturb the findings of a [c]hancellor unless the [c]hancellor was
manifestly wrong, clearly erroneous or an erroneous legal standard was applied.” Bell v.
Parker, 563 So. 2d 594, 596-97 (Miss. 1990).
DISCUSSION
I. MATERIAL CHANGE IN CIRCUMSTANCES
¶8.
When seeking to modify custody of a child, “a non-custodial party must prove [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.” Johnson v. Gray, 859 So. 2d 1006, 1013 (¶33) (Miss. 2003). “The totality of the
circumstances should be considered when considering whether a material change in
circumstances has occurred.” Duke v. Elmore, 956 So. 2d 244, 247 (¶7) (Miss. Ct. App.
2006). Once such a change of circumstances has been found, the factors in Albright v.
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Albright, 437 So. 2d 1003, 1005 (Miss. 1983) play a significant role in the chancellor’s
custody determination. McCracking v. McCracking, 776 So. 2d 691, 694 (¶10) (Miss. Ct.
App. 2000). In all custody-modification proceedings, the polestar consideration is the best
interest and welfare of the child. Albright, 437 So. 2d at 1005.
¶9.
In his motion for contempt, Michael specifically argued that the following reasons
warranted a change in custody: (1) Tracy had moved several times since the original custody
order, including moving to Texas, and (2) she was cohabiting with a man that was not her
husband, along with her two other children, her sister, and her sister’s three children. The
chancellor agreed with Michael. The chancellor found that since K.H. was born, Michael has
gotten married and demonstrated a more stable lifestyle, while Tracy’s lifestyle has become
more unstable. Specifically, the chancellor found as follows:
[Tracy] has continued a pattern of living and having children with men to
whom she is not married, depending on them for support. She opines plans of
getting her GED, studying surgical technology, working, getting a divorce and
doing all the things to stabilize her environment, but with no real advance in
doing those things. Even the divorce documents presented at trial were fraught
with inconsistencies of misstatements and justification for jurisdiction. The
court finds her touch with reality is lacking at best and her decisions are based
on the short term. Should the current pattern of [her] life continue she will
have more children, by more men, and [K.H.] will be caught in that cycle as
a way of life. Best stated, and not listed as an Albright factor, the best interest
of [K.H.] turns on the maturity of his parents as they nurture him. Stated
otherwise, where will [K.H.]’s best interest lie should he follow his mother’s
pattern of living or that of his father when looked at as to whether such
patterns are adverse to him.
¶10.
The supreme court has held that:
[W]hen the environment provided by the custodial parent is found to be
adverse to the child’s best interest, and that the circumstances of the
non-custodial parent have changed such that he or she is able to provide an
environment more suitable than that of the custodial parent, the chancellor may
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modify custody accordingly.
Riley v. Doerner, 677 So. 2d 740, 744 (Miss. 1996).
¶11.
We agree with the chancellor that considering the totality of the circumstances, K.H.’s
best interest will be served by modifying the custody arrangement. We find this case
analogous to Hill v. Hill, 942 So. 2d 207, 213 (¶25) (Miss. Ct. App. 2006), where this Court
found that the mother’s unstable lifestyle warranted a modification of custody. In Hill, Mary
Hill Jackson had been granted, by agreed order, primary physical custody of her minor child
with her former husband, Cary Hill. Id. at 209 (¶1). Mary dated and cohabited with several
men and moved multiple times after the initial custody order. Id. at 210-11(¶¶9-14). The
chancellor found that “Cary had matured significantly and that Mary had presented no
evidence that Cary was morally unfit.” Id. at 213 (¶24). The chancellor found that a
modification of custody was warranted under these facts because Cary could now provide
a more stable environment for the couple’s child. Id. at 213 (¶25). This Court noted that
while the child was not currently demonstrating any adverse effects, that did not preclude the
chancellor from considering that the child “was suffering, and would suffer, harmful [e]ffects
in the foreseeable future.” Id. at 212 (¶18).
¶12.
We cannot find that the chancellor’s decision was manifestly wrong or clearly
erroneous. The circumstances have changed such that Michael can provide a better and more
stable home environment. Therefore, we find this issue is without merit.
II. ALBRIGHT FACTORS
¶13.
In her second issue on appeal, Tracy argues that the chancellor erred in considering
the Albright factors when there was no material change in circumstances. In the alternative,
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she argues that the chancellor erred in awarding Michael custody after finding the Albright
factors did not weigh in favor of either party.
¶14.
The Albright factors are: (1) age, health, and sex of the child; (2) a determination of
the parent that had the continuity of care prior to the separation; (3) which parent has the best
parenting skills and which parent has the willingness and capacity to provide primary child
care; (4) the employment of the parent and responsibilities of that employment; (5) the
physical and mental health and age of the parents; (6) the emotional ties of parent and child;
(7) the moral fitness of the parents; (8) the home, school, and community record of the child;
(9) the preference of the child at the age sufficient to express a preference by law; (10) the
stability of the home environment and employment of each parent; and (11) other factors
relevant to the parent-child relationship. Albright, 437 So. 2d at 1005.
¶15.
Having found that a material change of circumstances has occurred detrimental to the
child’s best interest, we find that the chancellor properly addressed the Albright factors in
determining whether a change of custody was in K.H.’s best interest. The chancellor found
all but two of the Albright factors to be neutral. He found one of the remaining two factors
to weigh in favor of Tracy and one to favor Michael. The chancellor found that the
continuity of care clearly favored Tracy because she was K.H.’s sole caretaker for the first
year of his life, and she continued to have primary physical custody after Michael was
adjudicated to be the father. The stability of the home environment and employment
responsibilities were found to favor Michael. The chancellor’s ultimate consideration was
the best interest of the child. Having found the Albright factors to weigh in favor of neither
party, the chancellor considered the totality of the circumstances and found that Michael’s
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home provided a healthier environment. Applying discretion to the chancellor’s judgment,
we cannot find that the chancellor erred in making this determination.
¶16. THE JUDGMENT OF THE LAMAR COUNTY CHANCERY COURT IS
AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE
APPELLANT.
MYERS, P.J., IRVING, BARNES, ISHEE, ROBERTS AND MAXWELL, JJ.,
CONCUR. KING, C.J., AND GRIFFIS, J., CONCUR IN RESULT ONLY.
CARLTON, J., NOT PARTICIPATING.
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