The Better Chancery Practice Blog

We all know that it’s some times better just to keep your thoughts to yourself. And we all know, too, how difficult that may be.

Imagine then what a mighty struggle it can be for a chancellor to suppress the urge to expound on the folly on parade in her court room. Exasperation can overwhelm the best intentions of self control.

When that intemperate outburst is a statement that varies from the legal standard the court is supposed to apply, is that error?

In a recent COA case, the court held that it did not. In Smith v. Bellville, decided March 24, 2020, Judge Greenlee wrote the majority opinion:

¶14. Tiffany does not dispute that there was a material change in circumstances, but she claims that the chancellor applied an erroneous legal standard in awarding sole physical custody to Nathan. Specifically, Tiffany argues that the chancellor did not make the custody determination based on the child’s best interest but instead on who “lived up to” the initial custody agreement. Tiffany cites to Bell v. Bell, 572 So. 2d 841 (Miss. 1990), for the proposition that a custody agreement that requires a parent to live in a certain location is unenforceable. And she argues that the chancellor imputed such a term into the initial custody agreement and punished her for moving by awarding sole physical custody to Nathan.

¶15. A review of the record shows that during the trial the chancellor was reluctant to modify custody. She explained that she had encountered too many parties who agreed to joint custody “just to get what they need[ed,] when they want[ed] it.” The chancellor asked why Nathan and Tiffany initially agreed to joint physical custody, and Tiffany’s attorney responded that there were “a lot of reasons.” However, Nathan’s attorney stated that when the divorce on the grounds of uncondoned adultery was pending, Nathan was “pursuing full custody” of B.B. The chancellor then stated, “I know that when I have a divorce on grounds and the parties come in and they agree and they do it – – and I don’t know why they do it because they feel they might lose or whatever. Then they come back within five years wanting to change it, I have difficulties with that.” The chancellor further stated, “[T]his [c]ourt does not like it when people . . . enter into an agreement to keep one party from getting paramount physical custody . . . without anticipating what your ages are[,] . . . what your jobs are, [and] your abilities to move. And then you come back to me and say, oh, well, I moved and I want to change things.”

¶16. From the bench, the chancellor discussed enforcing the initial custody agreement until B.B. was in the first grade and repeatedly stated that Nathan and Tiffany would have to “figure out how to make [joint custody] work.” [Fn omitted] However, when the chancellor entered her written “Opinion and Final Judgment,” the chancellor found that the move was a material change in circumstances and, after conducting an Albright analysis, found that it would be in B.B.’s best interest to award sole physical custody to Nathan.

¶17. At the hearing on Tiffany’s post-trial motion, the chancellor expressed her belief that joint physical custody “is impossible in today’s society.” Additionally, she stated that joint physical custody was not in a child’s best interest because children become “victims” who “live with the backpack[s] on their back[s].” But the chancellor noted that Nathan and Tiffany initially agreed to joint physical custody and that she would have to determine how to make them “live up to” that agreement. But later, the chancellor stated several times that it was her responsibility to determine the best interest of the child, and she declined to enforce the initial joint physical-custody agreement. Rather, the final judgment, which awarded sole physical custody to Nathan, remained in place.

¶18. Although the chancellor made various remarks throughout the proceedings, the chancellor ultimately concluded that her decision must be based on the best interest of the child and conducted an Albright analysis before finding that it was in B.B.’s best interest to award sole physical custody to Nathan. Accordingly, we conclude that the chancellor did not apply an erroneous legal standard in awarding sole physical custody to Nathan.

I’m with the judge that too often joint custody is an easy way out for the lawyers. They can sell the idea that their client isn’t really “losing” on the custody issue, particularly in fractious cases. The problem comes after the divorce when the already-combatant parties concoct innovative, devilishly clever, and creative way to obstruct, antagonize, and frustrate each other using the child as bait, pawn, and cudgel. After a few years of this mutual agony, with several trips back before the judge for contempts, one party has to make an employment-related move to another state, and then the real fun begins.

Tagged: modification