MISSING THE ADVERSE EFFECT TO MODIFY

April 1, 2013 § 1 Comment

In Roberts, v. Roberts, decided March 19, 2013, the COA (majority opinion by Judge Roberts, btw) reversed a chancellor’s decision modifying custody where the chancellor did find material change in circumstances, but did not make a finding of adverse effect on the child, and did not address the Albright factors.

Scott Roberts and his ex-wife Stephanie had come to an agreement that their son Tristan could live with Scott, and that Scott could reduce the child support concomitantly. Scott did not pay the reduced amount as agreed, however. Stephanie later sued Scott for unpaid child support in the amount originally ordered by the court. Scott counterclaimed for custody and defended against her claim for child support that he should be liable only for the extra-judicial amount to which the parties had agreed.

Scott’s pleading for custody, styled “counter motion for custody,” did not expressly pray for modification of custody. Instead, it asked that “hereafter, each party should be responsible for child support of the child in their respective custody with neither party responsible for future support of the other.” It also stated that because Tristan had moved in with Scott full-time, there had been a material change in circumstances warranting modification so that neither should pay child support to the other. The COA, at ¶ 29 found these allegations sufficient to put the issue of modification of custody before the trial court, on the basis that, under MRCP 8(f), “All pleadings shall be construed to do substantial justice” and, per the comment, ” … that the rights of the client are not lost by the poor drafting skills of counsel.” The court concluded that to do otherwise would be to favor form over substance.

The court reversed and remanded the issue of custody, however. Here’s what the decision said:

The COA reversed and remanded, however, so the pleading, with its flaws, goes back for the chancellor for a do-over. Here’s what the COA said:

¶30. Next, Stephanie claims the chancellor erred by modifying custody of Tristan without first finding that there had been a material change in circumstances adverse to Tristan’s best interest. “The Mississippi Supreme Court [has] 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.” McMurry v. Sadler, 846 So. 2d 240, 243 (¶13) (Miss. Ct. App. 2002) (citing Touchstone v. Touchstone, 682 So. 2d 374, 377 (Miss. 1996)). “[F]or 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.” Id. at 244 (¶13). “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.” Id. It is inappropriate to modify child custody when the non-custodial parent did not file a motion that specifically stated or alleged that there had been a material change in circumstances that adversely affected a child. Id. at (¶14).

¶31. Scott did not claim that there had been a material change in circumstances or that such a change was adverse to Tristan. Furthermore, the chancellor merely held that there had been a material change in circumstances. The chancellor did not find that a material change in circumstances was adverse to Tristan. Furthermore, the chancellor did not conduct an Albright analysis to determine which parent should have custody of Tristan. This Court has held that when considering a modification of child custody, the proper approach is to first identify the specific change in circumstances, and then analyze and apply the Albright factors in light of that change. Where there is no specific identification of the alleged change in circumstances, this Court is placed in the position of attempting to guess what the chancellor determined was a proper basis for a change in custody. Thornell v. Thornell, 860 So. 2d 1241, 1243 (¶6) (Miss. Ct. App. 2003) (quoting Sturgis v. Sturgis, 792 So. 2d 1020, 1025 (¶19) (Miss. Ct. App. 2001)) (quotation marks omitted). Here, we can only guess why the chancellor found that a material change in circumstances was adverse to Tristan’s best interest. Furthermore, the chancellor did not conduct an Albright analysis before he found that it was appropriate to award custody of Tristan to Scott. In Thornell, 860 So. 2d at 1243 (¶¶7-8), this Court reversed a chancellor’s decision to modify child custody, because the chancellor failed to identify a specific change in circumstances that adversely affected the welfare of the child, and the chancellor failed to conduct an on-the-record analysis of the Albright factors. This Court concluded that it was appropriate to reverse the chancellor’s judgment and remand the matter to the chancellor for further proceedings. Id. at (¶¶8-9). Following Thornell, we remand this matter to the chancellor for further proceedings regarding how Tristan’s decision to live primarily with Scott amounted to a material change in circumstances adverse to Tristan’s best interest in light of the fact that Scott and Stephanie agreed that they would have joint physical custody of Tristan and Carleigh.

I agree that the case should have been reversed, but in my opinion the pleadings were fatally defective on two counts:

  1. In McMurry v. Sadler, 846 So.2d 240, 243-4 (Miss. App. 2002), it was held that a mere allegation of material change in circumstances in a pleading was inadequate to support a claim for modification, and that the pleading must expressly include the allegation that the change has had an adverse effect on the child. A distinguishing factor here is that, apparently, that issue was not contemporaneously raised to the chancellor as it was via a motion to dismiss in McMurry; but it was raised in this case by Stephanie on appeal. Although the appellate opinion references McMurry, it does so not for the pleading aspect of the case, but only for its holding that the proof must support a finding of adverse effect. I agree with Judge Roberts that the requirement imposed in McMurry elevates form over substance, but that is what the appellate court specifically mandated for this specific cause of action, “notice pleading” notwithstanding. 
  2. These pleadings do not even state a claim upon which relief can be granted. In Arnold v. Conwill, 562 So.2d 97 (Miss. 1990), the supreme court held that where the parties agree for a child to live for a time with the other parent, that circumstance standing alone does not support modification of custody. Since that is all that Scott pled, I don’t see how he could get a permanent modification on the strength of this pleading.

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