IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO. 2015-CA-01558-COA AMY LYNETTE BOLEN BUTLER APPELLANT

v. STEPHEN BRADLEY BUTLER APPELLEE
DATE OF JUDGMENT: 06/05/2015 TRIAL JUDGE: HON. C. MICHAEL MALSKI COURT FROM W HICH APPEALED: MONROE COUNTY CHANCERY COURT ATTORNEY FOR APPELLANT: CARRIE A. JOURDAN ATTORNEY FOR APPELLEE: CANDACE COOPER BLALOCK NATURE OF THE CASE: CIVIL - DOMESTIC RELATIONS TRIAL COURT DISPOSITION: GRANTED MOTION TO MODIFY VISITATION AND DENIED MOTION TO MODIFY CUSTODY DISPOSITION: AFFIRMED - 05/02/2017 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE LEE, C.J., BARNES AND WESTBROOKS, JJ. LEE, C.J., FOR THE COURT: ¶1. In this appeal, we m ust determ ine whether the chancellor erred in (1) m odif y ing the child-visitation o rder a nd (2) declining t o m odif y the child-custody arrangem ent. Finding no error, we af

f irm

. FACTS AND PROCEDURAL HISTORY ¶2. Stephen Bradley Butle r a n d A my L y nette Bolen B utler were m arried in 2006. The couple had o ne d aughter, A.B., 1 born in 2008. On July 28, 2010, the c hancery court entered

a f ina l j udgm ent of divorce between Stephen and Am y on the ground of i rreconcilable

1 We h av e u sed in itials to p ro tect th e p riv acy o f th e ch ild

.dif

f erences. T he j udgm ent p rovided that Stephen and Am y would share joint legal custody of A.B., an d t h a t A my w o uld h ave f ull phy sical c are, c u stody , and control of A.B. The judgm ent incorporated a d etailed visitation schedule f or Stephen, w hich s p ecif ied tim es, dates, holiday s, and birthday s that Stephen would spend with A .B. The schedule allowed Stephen supervised visitation, which would eventually progress to unsupervised visitation. ¶3. At the tim e the divorce decree was entered, S tephen had a pending DUI charge. As

a result, the visitation schedule placed certain restrictions on Stephen’s ability to drive A.B. and h ave overnight visits at his ho me . T h e s e restrictions w e r e set to expire on specif ied dates. The pending DUI charge was later dism issed on appeal. However, Stephen received

a s e c o n d DUI charge af t er the divorce. This second DUI triggered a provision i n t h e visitation agreem e nt that again r estricted Stephen’s ability to drive and have overnight visits with A.B. until f

urther order of

the court. ¶4. On Decem

ber 15, 2014, Stephen f

iled a com

plaint f or m odif ication and petition f

or
contem pt against Am y , claim ing that Am y willf ully a nd contum aciously r ef used to com

ply with the visitation schedule. Stephen requested his visitation be set f orth specif

ically and that
Am y be pro h i b i t e d f

r om interf

ering with his relationship with A.B. A m y counterclaim ed, seeking sole legal and phy sical custody of A .B. and m odif ication of Stephen’s visitation to supervised-only v isits with A.B. Am y f u rther p etitioned t he court to hold Stephen in

contem pt and to increase Stephen’s child-support obligations. ¶5. On June 5, 2 0 1 5 , t r i a l c o mme nced in chancery court. At t rial, Am y testif ied that Stephen f ailed to request 75 percent of his scheduled visitations. Stephen testif ied that his

2lack of visitat i o n w a s d u e , i n part, to changes in his w ork schedule. Am y t estif ied that she worried about S tephen’s ability to care f or A.B. in light of he r me d i c a l c ondition. She testif i ed t hat A .B. suf

f e red f rom asthm a a nd severe allergies, which required her to have an EpiPen and inhaler at all tim es. However, Am y adm itted A.B. was still able to participate in a num ber of outdoor s ports, including basketball and s occer, a n d never had to use the EpiPen. Specif

ically , Am y t estif

i e d t h a t she was concerned about Stephen’s drinking,

sm oking, and m ental illnesses—depression and bipolar disorder. ¶6. Stephen t estif

ied t hat Am y interf

ered with his relationship with A.B. by attending his scheduled visits and by blocking his phone num ber f rom A.B.’s cell phone. He testif ied that when A.B. would visit w ith him , Am y would text A .B. i n the m iddle of the visit with

m essages such as, “Yay

. . .[ ,] only [ two] m ore hours to go.” About a y ear pri o r t o t h e hearing, Stephen testif

ied that he noticed A.B.’s behavior toward him changing. W hile A.B. used to be happy to see him , she was now c old and i ndif f erent. Concerning his alcohol use, Stephen t estif

ied that he successf

ully com pleted two rehabilitation program s —seven weeks’ inpatient and twelve w eeks’ o utpatient—and had been sober f or two y ears. He then testif ied that approxim ately two or three tim es a m onth, he would drink a twenty -f our-ounce can of beer. Stephen testif

ied, h owever, that he had never consum ed alcohol or sm oked cigarettes around A.B. In r esponse to Am y ’s concerns about his alleged m ent a l illnesses, Stephen testif i ed that he was never diagnosed as bipolar, though he had taken antidepressants in the past and was currently taking an anxiety m edica t i o n . H is depression and anxiety were diagnosed bef

ore his m arriage to Am y .

3¶7. A t t h e conclusion of t he trial, the chancellor rendered an opinion f rom t h e b e n c h

. W i th regard to visitation, the chancellor awarded S tephen the sam e rights he was given in the divorce decree. Accordingly , the c hancellor r em oved all supervision requirem ents, allowing Stephen t o d r i v e A.B. and have overnight visits with A.B. at his hom e . 2 The provision restricting driving and o v ernight visits if Stephen received another DUI rem ained in ef f ect. Additionally , the c hancellor denied Am y ’s m otion seeking sole legal and phy sical custody of A.B. Am y

now appeals.
STANDARD OF REVIEW ¶8. In child-custody -m o dif ication cases, w e will uphold the decision of th e c h a n c ellor unless he was m anif

estly wrong or clearly e rro n e o u s , abused his discretion, or applied an

erroneous legal standard. Dupree v. Pafford , 200 So. 3d 1092, 1094 (¶4) (Miss

. C t

. App. 2016) (citing Pearson v. Pear s o n , 1 2 1 S o . 3d 266, 268 (¶6) (Miss. Ct. App. 2013)). The chancellor’s f

indings o f f

a c t will not be set aside on appeal if they are supported by substantial c redible evidence. Carter v
. Carter , 204 S o . 3 d 7 47, 756 (¶37) (Miss. 2016) (citing Marascalco v. Marascalco , 445 S o. 2d 1380, 1382 (Miss. 1984)). W e review issues of law de novo. B ranch v. Branch , 174 So. 3d 932, 938 (¶9) (Miss. Ct. App. 2015) (citing
Price v. Price , 22 So. 3d 331, 332 (¶8) (Miss. Ct. App. 2009)). ¶9. Regarding visitation, the chancery court enjoy s a large am ount o f discretion in m aking its determ ination of what is in the best interest of the child. Adams v
. Rice , 1 96 So. 3d 1086,

2 S t ep h en ’s f

a th er, D ex ter B u tler, testif i ed at trial th at S tep h en ’s h o m e w as n o t clean

. A s a resu lt, th e ch a n cello r req u ired all o f S tep h en ’s o v er n i g h t v isits t o o c cu r a t B u tler’s h o m e u n til B u tler f

o u n d S tep h e n ’s h o m e su itab le f o r A

. B

. 41089 ( ¶9) (Miss Ct. A pp. 2016 ) (citing Ellis v. Ellis , 840 So. 2d 806, 812 (¶24) (Miss. Ct.

A p p. 2003)). The chancellor has the responsibility to evaluate the c r edibility of witn e s s e s and evidence, and on review, “[ w ]e will not arbitrarily substitute our judgm ent f or that of the chancellor[ ,] who is in the best position to evaluate all f actors relating t o the best interest of the child.” Brooks v
. Brooks , 76 So. 3d 215, 217 (¶5) ( Miss. Ct. App. 2 011) (citing Mosley v. Mosley , 784 So. 2d 901, 905-06 (¶15) (Miss. 2001)).
DISCUSSION
I. Custody ¶10. A m y argues that the chancellor erred by deny ing her m otion to m odif y t h e c u s t o d y
agreem ent to a ward her sole legal and p hy sical c u stody o f A .B. Specif ically , she asserts both parties had stipulated that a m at e r i a l change of circum stances h ad occurred, and thus the chancellor erred when he f ound otherwise. ¶11. To obtain a change in custody , the m oving party m ust p r o v e by a preponderance of the evidence that (1) a m aterial change of circum stances has occurred in the custodial hom e since the m ost recent custody decree, (2) the change adversely af f e c ts the child, and (3) the child’s best interests m andate a c hange in custody

. Moreland v. Spears , 187 So. 3d 661, 663 (¶5) (Miss. Ct. App. 2016) (citing Mabus v. Mabus , 847 So. 2d 815, 818 ( ¶8) (Miss. 2003)).
To determ ine whether a m a t e r i a l change i n circum stances has occurred, the court m ust consider the “totality of the c ircum stances.” I d. at 664 (¶6) (citing Mabus , 847 So. 2d at 818 (¶8)). Even where the chancellor f inds a m aterial change in circum stances has occurred, the chancellor m

ust still additionally d eterm ine t hat the change h as adversely a f f ected the child

5and that a m odif ication of custody is in that c hild’s best interest. Curry v. McDaniel , 37 So. 3d 1225, 1229 (¶8) (Miss. Ct. App. 2010) (citing Tucker v. Tucker , 453 So. 2d 1294, 1297 (Miss. 1984)). “[ T ]he best inter e s t a nd welf are of the child a r e the [ p rincipal] considerations.” Id. “It is only that behavior o f a p arent which cl e a r l y posits or causes danger to the m ental a nd em otional well-being of a child (whether such b ehavior i s im m oral

or not), which is [ a ] suf

f icient basis to seriously c onsider the drastic legal action of changing

c u s t o d y . ” Campbell v. W atts , 1 92 So. 3d 317, 3 22 (¶19) (Miss. Ct. App. 2015) (quoting Ballard v. Ballard , 434 So. 2d 1357, 1360 (Miss. 1983)). ¶12. During trial, the chancellor f oun d t h a t n o ma t e r i a l c h ange in circum s tances had occurred to justif

y m odif ication of the custody a rrangem ent. Am y argues that her inability

to cooperate with Stephen constitute d a ma terial change in circum stances. This Court has

nev er h e ld that t he m ere inability of divorced parents to cooperate w ith one another constitutes a m aterial change in c ircum stances. I n L ipsey v. Lipsey , 755 So. 2d 564, 566 (¶7) (Miss. Ct. App. 2000), this Court reverse d a t rial court’s decision t o m odif y c u stody when that decision was based on nothing m ore than the parties’ inability to cooperate w i t h one another. “In light of the

. . . cases where m u ch m ore severe acts were f ound not to c onstitute

m aterial changes in circum stances, we would b e r e mi s s to say t hat the law warranted a change in custody here.” Id. “ This Court does n ot f ind lack o f cooperation to be a pinnacle that warrants a reconsideration of custody [ .]” Id. at 567 (¶9). This issue i s wit h o u t me r it.
II. Visitation ¶13. Am y argues that the ch a n c e l l or erred by awarding Stephen unsupervised visitation

6with A.B. To m odif y a visitation o rder, “i t m ust be shown that the prior decree f or reasonable v i s i t ation is not working and that a m odif ication is in the b est interest of the [ child].” Culberson v. Culberson , 196 S o. 3d 1062, 1 0 6 6 ( ¶14) ( Miss. Ct. App. 2016) (quoting Ellis , 840 So. 2d at 812 (¶25)). ¶14. There was substantial credible evidence that the visitation schedule was not working.
At trial, both Stephen and A m y acknowledged that t here h ad been num erous problem s with visitation. Stephen’s work schedule changed im m ediately f ollowing the e ntry of the divorce decree, which interf

ered with his ability to visit with A.B. on the weekends. Additionally , Stephen’s second DUI o c curred shortly a f ter the divorce d ecree, and consequently restricted his ability to pick up A.B. and h ave overnight visits with her. According to Am y , Stephen f ailed to r equest 7 5 percent o f his scheduled visitations. Am y adm itted that she did not f eel

com f o rtable leaving A.B. w i t

h S tephen and that she prevented A.B. f rom spending Christm as with him . Stephen was not able to see A.B. until the f ollowing March. ¶15. As this Court has previously explained:
W i th visitation, as in a ll m atters relating t o a m inor child, the prim ary consideration i s the best interest of the child. W e start f rom t he presum

ption that where p ossible, t hat best i nterest i s served b y m aintaining a viable relationship with both parents. Theref or e , the goal in establishing visitation is to encourage a nd f

orge as strong of a bond as possible b etween the child and the non-custodial parent and between the child and the custodial parent under the least disruptive circum stances. Strange v. Strange , 43 So. 3d 1169, 1173 (¶14) (Miss. C t. App. 2010). H ere, a s discussed, Stephen’s visitation rights were restricted due to his second DUI. The record dem onstrates that the m odif

ication sim

ply rein s t a t e d Stephen’s original visitation rights—the rights he

7would have enjoy ed had he not received a second DUI. The provision triggered by Stephen’s

second DUI also stated that the restrictions would rem ain i n ef f ect until f u rther order of the

court. The m odif

ication here i s just that: f urther o rder of t he court. Th e c h a n cellor conside r e d t h a t Stephen had successf ully com pleted r ehab and had not received a DUI in

over f our y e ars, and that A.B.’s m edical c ondition had i m proved. These f

indings were supported by the substantial c redible evidence. Because the prior v isitation schedule was not working, and given the presum ption that a child’s best interest is served by the m a intenance

o f a r e l a tionship with both parents, the chancellor did not e r r in m odif

y ing the visitation schedule. ¶16. T H E JUDGMENT OF T HE MONROE C OUNTY CHANC E R Y C O U R T I S AFFIRMED. ALL C OSTS O F THIS APPEAL ARE ASSESSED TO THE APPELLANT.
I R V I N G AND GRIFFIS, P.JJ., BARN E S , I S H E E , C A R L T O N , F A I R , W I L S O N , GREENLEE AND WESTBROOKS, JJ., CONCUR.

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