Sandra K. Lammey Connelly v. David Howell Lammey
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2006-CA-02093-COA
SANDRA K. (LAMMEY) CONNELLY
APPELLANT
v.
DAVID HOWELL LAMMEY
DATE OF JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEYS FOR APPELLANT:
ATTORNEYS FOR APPELLEE:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
APPELLEE
11/15/2006
HON. MITCHELL M. LUNDY, JR.
DESOTO COUNTY CHANCERY COURT
GERALD W. CHATHAM
H.R. GARNER
PEGGY A. JONES
MARTIN ZUMMACH
CIVIL - CUSTODY
CHANCELLOR GRANTED MODIFICATION OF
CUSTODY FROM MOTHER TO FATHER
AFFIRMED - 05/20/2008
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
BEFORE LEE, P.J., BARNES AND ISHEE, JJ.
LEE, P.J., FOR THE COURT:
FACTS AND PROCEDURAL HISTORY
¶1.
On September 8, 1998, Sandra K. Lammey Connelly (Connelly) and David Howell Lammey
(Lammey) were granted a divorce in the DeSoto County Chancery Court. The chancellor awarded
both parties joint legal custody of their two sons, Dean and Matthew, but Connelly was awarded
physical custody of the boys. In August 2005, Connelly relocated to Las Vegas, Nevada, taking
Dean and Matthew with her. Lammey subsequently filed a petition seeking paramount custody of
the boys. After a hearing in August 2006, the chancellor granted Lammey’s request for custody
modification. Connelly filed a motion to reconsider, which was denied by the chancellor. Connelly
now appeals, asserting that the chancellor erred in finding a material change in circumstances and
in finding that the best interests of the boys would be served by a change in custody.
STANDARD OF REVIEW
¶2.
The standard of review in child custody cases is quite limited, and in order to reverse the
chancellor’s findings, the chancellor must be manifestly wrong, clearly erroneous, or have applied
an erroneous legal standard. Hensarling v. Hensarling, 824 So. 2d 583, 586 (¶7) (Miss. 2002). This
Court reviews de novo whether the chancellor applied the proper legal standard in deciding a
custody modification case. Morgan v. West, 812 So. 2d 987, 990 (¶8) (Miss. 2002).
DISCUSSION
¶3.
As both issues raised by Connelly relate to whether the chancellor erred in modifying
custody, we will address them together. The prerequisites for child custody modification are as
follows: (1) whether there has been a material change in circumstances which adversely affects the
welfare of the child and (2) whether the best interest of the child requires a change of custody.
Weigand v. Houghton, 730 So. 2d 581, 585 (¶15) (Miss. 1999).
¶4.
In determining whether there had been a material change in circumstances, the chancellor
noted that relocation by a custodial parent is not, in and of itself, a sufficient material change of
circumstances. See Giannaris v. Giannaris, 960 So. 2d 462, 468 (¶11) (Miss. 2007). The chancellor
noted Connelly’s reason for moving was to be closer to her parents, who were old and in failing
health. The chancellor also noted that Connelly claimed to have promises of suitable employment
in Las Vegas and a free place to live; however, the chancellor stated that “those things proved not
to be the case. . . .” According to the testimony, Connelly found suitable employment approximately
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one to two months after moving to Las Vegas and did live with her parents rent free for nine months
before building a house for her and her boys.
¶5.
The chancellor then proceeded to summarize the testimony of Dr. L.D. Hutt, a psychologist
who had interviewed and tested Connelly, Lammey, and both boys. Dr. Hutt found that Dean was
unhappy living in Las Vegas and wanted to live with his father. The chancellor noted that Dr. Hutt
found that Dean was traumatized by the move and was upset with his mother by the way she handled
the move to Las Vegas. There was also testimony that Dean’s grades had suffered. A report card
showed that Dean had made a “C” in math. Dean, who was fourteen at the time, testified at trial,
stating that: he had made a lot of friends at his new school; he was involved in extracurricular
activities; he had no difficulties in being able to speak with his father on the telephone; although in
eighth grade at the time, he was in a tenth-grade-accelerated-math class, which was much harder,
as evidenced by his “C” grade; and school in general was harder in Las Vegas than in Mississippi.
Dean explained to the chancellor why he wanted to live with his father in Mississippi:
It’s just everything I like to do here. There’s hunting, there’s fishing. I did better at
baseball here, I did worse out in Las Vegas. My friends, I got a lot more friends here
that I never did really get to say good-bye to. I just like it here [in Mississippi] a lot.
All the hunting and fishing, that’s like my favorite thing in the world. I lived with
my mom until now, so, I think it would be pretty fair to live the rest of my life with
my dad until I move out of the house. It’s kinda evened up.
¶6.
The chancellor also noted Dr. Hutt’s interview with the youngest son, Matthew, who also
expressed his sadness about being uprooted from his home. Ultimately, Dr. Hutt opined that both
the move to Las Vegas and Connelly’s interference with the boys’ interaction with the Lammey
family had adversely affected the boys. The chancellor then determined that there had been a
material change in circumstances that adversely affected the welfare of both boys.
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¶7.
The chancellor then made an on-the-record determination of whether the best interests of the
children would be served by transferring custody. The chancellor discussed each factor in depth as
outlined in Albright v. Albright, 437 So. 2d 1003, 1005 (Miss. 1983). The chancellor found that the
following five factors favored Lammey: (1) the health, sex, and age of the children; (2) the existing
emotional ties; (3) the home, school, and community record of the children; (4) the preference of
the child at the age sufficient to express a preference by law; and (5) the stability of the home
environment. The chancellor found that the following two factors favored Connelly: (1) the
continuity of care and the employment of the parents and (2) the responsibilities of that employment.
The chancellor found that the remaining four factors did not favor one parent over the other: (1) the
parenting skills; (2) willingness and capacity to provide the primary care; (3) the physical and
mental health of the parents; and (4) the moral fitness of the parents. The chancellor found that it
would be in the best interests of the boys that custody be transferred from Connelly to Lammey. As
the chancellor was in the best position to judge the credibility of the witnesses, we can find no error
in his determination. We find that there is substantial evidence in the record to support the
chancellor’s findings. Therefore, we affirm the modification of custody from Connelly to Lammey.
¶8.
THE JUDGMENT OF THE DESOTO COUNTY CHANCERY COURT IS
AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.
KING, C.J., MYERS, P.J., IRVING, CHANDLER, GRIFFIS, BARNES, ISHEE,
ROBERTS AND CARLTON, JJ., CONCUR.
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