Shawanda Moore v. Gerondrick S. Cole
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2005-CA-02290-COA
SHAWANDA MOORE
APPELLANT
v.
GERONDRICK S. COLE
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
11/9/2005
HON. FRANKLIN C. MCKENZIE, JR.
JONES COUNTY CHANCERY COURT
ROSS R. BARNETT, JR.
THOMAS T. BUCHANAN
CIVIL - CUSTODY
DENIED MODIFICATION OF CUSTODY.
AFFIRMED: 04-03-2007
BEFORE LEE, P.J., GRIFFIS AND ROBERTS, JJ.
GRIFFIS, J., FOR THE COURT:
¶1.
Shawanda Moore brought this action against Gerondrick S. Cole for modification of child
custody. The chancellor denied the modification and found that there was no material change of
circumstances that adversely affected the child. Moore argues that the chancellor’s judgment was
against the overwhelming weight of the evidence.
FACTS
¶2.
Moore and Cole are the natural parents of Jaylan Cole, born September 10, 1997. At the time
of Jaylan’s birth, Moore was a student at Alcorn State University, and Cole was a student at the State
Highway Patrol school. Moore and Cole were never married.
¶3.
Through 1999, Jaylan lived alternately with his maternal grandmother in Jackson and his
paternal grandparents in Memphis, while both parents finished school. In 2000, Jaylan lived with
Cole’s parents.
¶4.
On December 15, 2000, Cole became a State Highway Patrol officer, and Jaylan began to live
with his father and his stepmother Teresa, in Laurel. In their home, Jaylan lived with his stepbrother
Lakon and half-brother Christian. Cole’s work schedule required that he work seven night shifts
every other week. When Cole had to work night shifts, either Teresa or her parents would watch
Jaylan and the other children.
¶5.
About the same time, Moore left Alcorn State University and moved to Georgia. On July
12, 2003, Moore came to get Jaylan for a weekend visit. Moore took Jaylan to her residence in
Georgia and refused to bring him back to Mississippi.
¶6.
On August 7, 2003, Cole filed an action to determine paternity and establish custody. Cole
was granted temporary custody, and Moore was granted temporary visitation. On January 15, 2004,
the court entered an order that adjudicated Cole to be Jaylan’s father, and Cole was granted custody
of Jaylan. Moore was given visitation rights. Because Cole did not seek child support, the
chancellor ordered no child support would be required but held that Cole could petition for child
support in the future. Moore did not appeal this order.
¶7.
Later in January of 2004, Cole and Teresa began divorce proceedings. Teresa, Christian and
Lakon moved to Meridian. Cole moved to Canton to attend specialized officer training, which
would last three months. Due to the divorce and training, Cole sent Jaylan to his parents’ home in
Memphis. Jaylan lived in Memphis from January to May 2004. He attended Florida-Kansas
Elementary School, where his grandmother Pallascene B. Cole was the principal. Moore was aware
of this arrangement and did not object.
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¶8.
In May of 2004, Jaylan moved back in with Cole. Since then, Jaylan has continued to live
with Cole in Madison County. On June 11, 2004, Cole’s parents moved to Canton, just down the
street from Cole and Jaylan. Pallascene Cole is now the principal of Canton Elementary, where
Jaylan attends school. Cole’s work schedule requires that Jaylan spend approximately two nights
a week at his grandparents’ house.
¶9.
On July 9, 2004, Moore filed for a modification of custody. Moore alleged that (1) the move
to Memphis between January and May had disrupted Jaylan’s life, (2) Cole was no longer the
primary caregiver, and (3) Jaylan’s brother was no longer living with him. Cole counterclaimed for
child support. At trial, Moore claimed that the only adverse change of circumstances was Cole’s
work schedule. The chancellor found that Moore had failed to meet the burden of proof to establish
a material change of circumstances that adversely affected the child and denied Moore’s claim for
modification. The chancellor granted Cole’s counterclaim and awarded him $202 per month in child
support. It is from this order that Moore appeals.
STANDARD OF REVIEW
¶10.
Matters involving child custody are within the sound discretion of the chancellor. Sturgis
v. Sturgis, 792 So. 2d 1020, 1023 (¶12) (Miss. Ct. App. 2001). A chancellor’s findings of fact will
not be disturbed unless manifestly wrong or clearly erroneous. Sanderson v. Sanderson, 824 So. 2d
623, 625 (¶8) (Miss. 2002). This Court will not disturb the findings of a chancellor when supported
by substantial credible evidence unless the chancellor abused his or her discretion, was manifestly
wrong, clearly erroneous, or an erroneous legal standard was applied. Id. at 625-26 (¶8). Legal
questions are reviewed de novo. Russell v. Performance Toyota, Inc., 826 So. 2d 719, 721 (¶5)
(Miss. 2002).
ANALYSIS
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¶11.
Moore argues that the chancellor’s decision was against the overwhelming weight of the
evidence and the applicable evidence.
¶12.
In Mabus v. Mabus, 847 So. 2d 815, 818 (¶8) (Miss. 2003), the supreme court held:
In a case disputing child custody, the chancellor's findings will not be reversed unless
manifestly wrong, clearly erroneous, or the proper legal standard was not applied.
Hensarling v. Hensarling, 824 So. 2d 583, 587 (Miss.2002). See also Wright v.
Stanley, 700 So. 2d 274, 280 (Miss.1997); Williams v. Williams, 656 So. 2d 325, 330
(Miss.1995). The burden of proof is on the movant to show by a preponderance of
the evidence that a material change in circumstances has occurred in the custodial
home. Riley v. Doerner, 677 So. 2d 740, 743 (Miss.1996).
In the ordinary modification proceeding, the non-custodial party must
prove: (1) that a substantial change in circumstances has transpired
since issuance of the custody decree; (2) that this change adversely
affects the child’s welfare; and (3) that the child’s best interests
mandate a change of custody. Bubac v. Boston, 600 So. 2d 951, 955
(Miss.1992).
....
In considering whether there has been such a change in
circumstances, the totality of the circumstances should be considered.
[Spain v. Holland, 483 So. 2d 318, 320 (Miss.1986).] Even though
under the totality of the circumstances a change has occurred, the
court must separately and affirmatively determine that this change is
one which adversely affects the children. Id.
Bredemeier v. Jackson, 689 So. 2d 770, 775 (Miss.1997). Furthermore, it is well
settled that the polestar consideration in any child custody matter is the best interest
and welfare of the child. Albright v. Albright, 437 So. 2d 1003, 1005 (Miss.1983).
¶13.
The chancellor examined whether there had been a material change in the custodial home
since January 15, 2004, the date of the original custody order. The chancellor determined that the
only issue that Moore pointed to was the fact that Cole’s work schedule as a state trooper was
different. The chancellor ruled that Cole was a state trooper at the time of the original order, and
thus, Cole’s work schedule could not be considered a change of circumstances. The chancellor also
concluded that Jaylan was well adjusted, making good grades and had no serious health issues.
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Hence, the chancellor held that Moore failed to meet her burden of proof to establish a claim for
modification of custody.
¶14.
On appeal, Moore argues that the chancellor ignored evidence of significant changes in
Jaylan’s life during this time. Moore claims that there was a disruption to Jaylan’s home life. She
points to evidence that Cole was married at the time of the original order and presented a stable
home life at that time. Thereafter, Moore argues that the chancellor failed to consider the fact that
Jaylan’s home life “fell apart” due to Cole’s marital difficulties, that Jaylan was sent away to live
with his paternal grandmother, and that Jaylan was enrolled in another school as sufficient evidence
of a material change of circumstances.
¶15.
The evidence presented at the hearing indicates that none of these changes had an adverse
impact on Jaylan’s health or welfare. Moore admitted that there has been no adverse impact on
Jaylan’s schoolwork. The witnesses agreed that Jaylan was a smart, well adjusted child, with no
behavioral problems. The only evidence of an adverse change, which Moore identified at the
hearing, was Cole’s new work schedule. On direct, she was asked:
Q.
Do you know of anything right now that Mr. Cole is doing or not doing that
is adversely affecting the child that causes you to feel this Court should
change custody of the child from Mr. Cole to you?
A.
Well, for him having primary custody, his work schedule is just, you know,
it varies. I think that we’re being his parents, I don’t think his parents should
have to take care of Jaylan. You know, if he’s not going to be there all the
time for Jay, I should be there for Jay. You know, he has a varying work
schedule. He’s a state trooper, so he doesn’t have a set schedule where he’s
going to work a set schedule. I do. I can be there at night with Jay. His
schedule can be set and stable. You know, have a consistent schedule; not
varying back and forth between [Cole]’s house and his grandparents’ house.
He’ll just have one set place to be.
Q.
So, you feel the child should know that he’s going to sleep in the same bed
every night.
A.
Right. And not have to be back and forth.
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¶16.
We recognize that this testimony could assist the chancellor in an initial custody
determination, i.e., an Albright analysis.
However, this evidence is not sufficient under a
modification of custody analysis. In essence, Moore does not claim that Jaylan has been negatively
affected by his living arrangement. Instead, she merely argues it would be better at her house.
Accordingly, there is sufficient evidence to support the chancellor’s conclusion that Cole’s work
schedule is substantially the same if not better than it was at the time of the initial custody award.
Cole is required to work some night shifts. On these occasions, Jaylan stays with his grandparents.
There was also evidence for the chancellor to conclude that Cole’s schedule had improved. Rather
than working fourteen nights a month, he only works ten nights a month. Also, before Cole did not
get any time off from work. Now, his schedule allows him to have nine days a month off from work.
Rather than spend the night two miles down the road at his stepgrandparents’ home, Jaylan can
spend the night across the street at his grandparents’ home.
¶17.
We do not find that the chancellor was manifestly wrong, clearly erroneous, or applied the
improper legal standard. To the contrary, there is more than sufficient evidence to support the
chancellor’s finding that Moore failed to show a material change in circumstances that adversely
affected the child. Therefore, the chancellor correctly denied Moore’s claim for a modification of
custody. We affirm.
¶18. THE JUDGMENT OF THE CHANCERY COURT OF JONES COUNTY IS
AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.
KING, C.J., LEE AND MYERS, P.JJ., IRVING, CHANDLER, BARNES, ISHEE AND
ROBERTS, JJ., CONCUR. CARLTON, J., NOT PARTICIPATING.
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