Richardson v. Richardson
IN THE COURT OF APPEALS
OF THE
STATE OF MISSISSIPPI
NO. 2000- CA- 01302- COA
SHIRLEY ANN RICHARDSON APPELLANT
v.
CEDRIC LEWIS RICHARDSON APPELLEE
DATE OF TRIAL COURT
JUDGMENT:
07/ 18/ 2000
TRIAL JUDGE: HON. MELVIN MCCLURE
COURT FROM WHICH APPEALED: TATE COUNTY CHANCERY COURT
NATURE OF THE CASE: CIVIL - CUSTODY
TRIAL COURT DISPOSITION: IT IS IN THE BEST INTEREST OF THE MINOR CHILDREN THAT CUSTODY BE CHANGED FROM
SHIRLEY RICHARDSON TO CEDRIC RICHARDSON.
DISPOSITION: AFFIRMED - 07/ 17/ 2001
MOTION FOR REHEARING FILED:
CERTIORARI FILED:
MANDATE ISSUED: 8/ 7/ 2001
BEFORE KING, P. J., PAYNE, AND MYERS, JJ.
MYERS, J., FOR THE COURT:
1. Cedric Lewis Richardson filed a petition for modification of child custody and support in the Chancery
Court of Tate County, Mississippi. His former wife, Shirley Ann Richardson, had custody of the children
and filed a motion to dismiss the petition pursuant to the Uniform Child Jurisdiction Act. The court denied
the motion to dismiss and held that jurisdiction over this matter would be retained by Tate County. The
court also ordered the children to be enrolled and in attendance in the Senatobia, Mississippi public schools
until further ordered by the court.
2. Cedric filed a motion for enforcement of the order and citation of contempt when he became aware that
Shirley had enrolled the children in the public schools of Savannah, Georgia in violation of the prior order of
the Tate County Chancery Court. In November of 1999 a temporary order was entered holding Shirley
Richardson in contempt and granting temporary custody to Cedric. The conflict was taken to trial before the
Honorable Melvin McClure. Chancellor McClure granted the modification in favor of Cedric Richardson.
Shirley Richardson now appeals that decision.
FACTS
3. Shirley Ann Richardson and Cedric Lewis Richardson were divorced on June 28, 1995, in Chatham
County, Georgia. Shirley was awarded sole permanent legal custody of the minor children, W. R. and C. R.
Cedric was to pay three hundred dollars per month as child support. After the divorce, Cedric returned to
Mississippi and went to college at the University of Mississippi.
4. In the summer of 1998 the parties agreed that the two children would come live with their father for one
year and attend school in Panola County. Cedric taught seventh grade math and eighth grade pre- algebra in
the Panola County school system. During the year in residence with their father, they actually lived in the
paternal grandparents' home along with their father. Many of the actual household duties, including food
preparation and washing clothes was done by Cedric's mother. Cedric testified that the majority of his
family and most of Shirley's lived in Tate County.
5. In May of 1999, Cedric filed his petition to modify custody and support when he found out Shirley was
coming to retrieve the children. He cited as his reason for filing the petition that Shirley had a child by a man
that she had been living with for two years. Per their agreement, Cedric and his new wife went to get the
children in August 1999 for the upcoming school year. Shirley would not let him see the children.
6. Cedric Richardson testified on his own behalf at the hearing. He testified that the adverse changes in the
children's circumstances included Shirley's live- in boyfriend and the new child. He alluded to the abuse of
Shirley by the boyfriend. He claimed that Shirley tried to turn the children against him and that she was
denying the children the knowledge and relationship with their extended Mississippi family. He then called
his new wife, Shunnon Richardson, who testified that she and Cedric started dating in October 1998 and
were married in June 1999.
7. Shirley Richardson was called as Cedric's last witness. She testified that she lived with her fiancé for
two years and they had a child in 1996. She said the relationship ended in the fall of 1998 and that she had
not lived with him since then. She and her ex- fiancé have a three- year- old together. She admitted to
disobeying the court's order by enrolling the children in school in Georgia. She denied Cedric's charges that
she interfered with his relationship with the children by hindering phone contact and " turning" the children
against him. At the time of trial she was enrolled in school to become an elementary school teacher and she
was the assistant manager at the Landing Country Club, making $ 29,000 per year.
8. Shirley Richardson called three witnesses on her behalf. The first was Pamela Jackson, Cedric's sister.
She testified that she believed each parent was a good parent. The second witness was Deborah
Dandridge, Cedric's aunt. She testified that, as a minister, she believed the children should be with their
mother. She also testified that the children were ill- behaved when with their father. Shirley's third witness
was her daughter, W. R. W. R. testified that she skipped the third grade and is in sixth grade now. She also
testified that she liked the schools in Savannah better than the schools in Mississippi.
DISCUSSION
9. In reviewing a chancellor's findings in a domestic matter, this Court has limited discretion. " This Court
will not disturb the findings of a chancellor unless the chancellor was manifestly wrong, clearly erroneous or
an erroneous legal standard was applied." Sandlin v. Sandlin, 699 So. 2d 1198, 1203 ( Miss. 1997)
( quoting Ferguson v. Ferguson, 639 So. 2d 921, 930 ( Miss. 1994)). " We will not reverse a chancellor's
findings of fact where they are supported by substantial evidence in the record." Weigand v. Houghton,
730 So. 2d 581 ( Miss. 1999).
[ T] he moving party must prove by a preponderance of the evidence that since entry of the judgment
of decree sought to be modified, there has been a material change in circumstances which adversely
affects the welfare of the child. Second, if such an adverse change has been shown, the moving party
must show by the like evidence that the best interest of the child requires the change of custody.
Ash v. Ash, 622 So. 2d 1264, 1265 ( Miss. 1993) ( quoting Pace v. Owens, 511 So. 2d 489, 490 ( Miss.
1987)).
10. In this state we follow what is termed the Albright factors. In 1983, Justice Prather enumerated these
factors with the polestar consideration being that of the best interest and welfare of the child. Albright v.
Albright, 437 So. 2d 1003, 1005 ( Miss. 1983).
Age should carry no greater weight than other factors to be considered, such as: health, and sex of the
child; a determination of the parent that has had the continuity of care prior to the separation; which
has the best parenting skills and which has the willingness and capacity to provide primary child care;
the employment of the parent and responsibilities of that employment; physical and mental health and
age of the parents; emotional ties of parent and child; moral fitness of parents; the home, school and
community record of the child; the preference of the child at the age sufficient to express preference
by law; stability of the home environment and employment of each parent, and other factors relevant
to the parent- child relationship.
Id.
11. The chancellor in the present case adhered to the guidelines that the non- custodial parent must show
( 1) substantial change in circumstances; ( 2) change adversely affects the child's welfare; and ( 3) that child's
best interest mandates a change in custody. Bredemeier v. Jackson, 689 So. 2d 770, 775 ( Miss. 1997).
A mere improvement in the non- custodial parent's environment and condition, is not enough to warrant a
change in custody. Riley v. Doerner, 677 So. 2d 740, 743 ( Miss. 1996). However,
[ 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
modify custody accordingly. This must be so, for " in all child custody cases, the polestar consideration
is the best interest of the child." Sellers v. Sellers, 638 So. 2d 481, 485 ( Miss. 1994), ( other citations
omitted).
Riley, 677 So. 2d at 744.
The trial court found that Shirley's live- in boyfriend, their child and her not letting the children speak to their
father in person or over the phone were sufficient facts to satisfy the first two prongs of the test.
12. The court then moved on to an evaluation of the Albright factors to decide custody. In following the
factors mentioned above, Chancellor McClure reviewed the testimony of all the witnesses. Regarding the
age of the children, if there were any advantage as to the ages of the children they off- set one another as the
boy is eight and the girl is ten. The court found that the continuity of care was in the father's favor because
the mother agreed for the children to live and go to school in Senatobia. As to the best parenting skills and
emotional ties between the parents and children, he found that both parents were good parents. He also
was satisfied that both parents love their children and that there are strong emotional ties among them.
Neither parent has an advantage.
13. The chancellor found in favor of the father in regard to the employment factors and responsibilities of
that employment. The father teaches school while the mother works 10: 00 p. m. to 6: 00 a. m. Tuesday
through Saturday and also attends college. As to age of the parents, health of the children, physical and
mental health of the parents, nothing stands out to put one parent over another.
14. The father again wins in the moral fitness department as the mother had a live- in boyfriend for almost
three years. Included in his determination was the moral fitness of the environment which looks to extended
family. The father lived with his parents until he was married. Since both sides of the children's extended
family are in the father's community, this factor leans in his favor. In looking into the behavior in school, in
the home and in the community the children are doing well. They are getting to know their extended family.
This is in the father's favor. Based on the mother's moving, her relationship with her live- in boyfriend, and his
abuse of her gives the father the favor.
15. In considering the other factors, the Chancellor did mention the half- sister of W. R and C. R. who
would remain in Georgia with the mother. He says the caution not to split siblings would lean in favor of the
mother except that she sent W. R. and C. R. to live in Senatobia with their father.
16. The chancellor must find that the " overall circumstances in which the child lives have materially changed
and are likely to remain materially changed for the foreseeable future and . . . that such changes adversely
impact the child." Brown v. Brown, 764 So. 2d 502, 504 ( Miss. Ct. App. 2000). In light of Albright and a
review of the totality of the circumstances, the best interest of the children was found to be that their
custody should be entrusted in their father. We can find no manifest error, no clearly erroneous findings nor
any erroneous application of our legal standards. We affirm the modification in custody.
17.
THE JUDGMENT OF THE CHANCERY COURT OF TATE COUNTY AWARDING PHYSICAL CUSTODY OF MINOR CHILDREN TO APPELLEE IS AFFIRMED. ALL COSTS ARE ASSESSED TO THE APPELLANT.
McMILLIN, C. J., KING AND SOUTHWICK, P. JJ., PAYNE, BRIDGES, THOMAS, LEE AND CHANDLER, JJ., CONCUR. IRVING, J. DISSENTS WITHOUT WRITTEN OPINION.
