IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO. 2014-CA-00629-COA KENNETH MORELAND APPELLANT

v. BRANDI MORELAND GREENWOOD SPEARS APPELLEE DATE OF JUDGMENT: 03/28/2014 TRIAL JUDGE: HON. GEORGE W ARD COURT FROM W HICH APPEALED: ADAMS COUNTY CHANCERY COURT ATTORNEYS FOR APPELLANT: MICHAEL JAMES MALOUF JR. MELISSA ANN MALOUF ROBERT EUGENE JONES II ATTORNEY FOR APPELLEE: JOSEPH BILBO MOFFETT NATURE OF THE CASE: CIVIL - CUSTODY TRIAL COURT DISPOSITION: MODIFIED CHILD-CUSTODY AGREEMENT DISPOSITION: REVERSED AND RENDERED: 03/01/2016 MOTION FOR REHEARING FILED: MANDATE ISSUED: EN BANC. GRIFFIS, P.J., FOR THE COURT: ¶1. Kenneth Moreland (Ken) and Brandy Mor e l a n d G r e e n w o o d S p e a

r s ( B r a n d y ) d ivorced

on August 23, 2012, o n the ground of irreconcilable d if f erences. There was one child born

to the m arriage, Lauren. A s p art of their d ivorce decree, Brandy and K en agreed to share joint lega l c ustody , m a ke Brandy the custodial parent, a w ard Ken liberal visitation, and alter n a t e t h e y e a r s K en and B randy could claim Lauren as a d ependent on taxes. The
agreem ent a lso require d K e n t o pay $400 in m onthly child s upport, one-half of school expenses, and one-half

of any activity expenses up to two activities.¶2. On August 9, 2013, Bra n d y f i l e d a petition in Adam s C ounty Chancery Court f or a

m odif ication o f the child-custody agreem ent and to hold Ken in contem pt f or f a iling to pay his half of Lauren’s tuition and activity e xpenses. Brandy s ought f ull legal custody , a change

to the v i s i t a t i o n schedule, a m ental evaluation of Ken, and r eim bursem ent f

or all owed expenses and expenses incurred in bringing the petition f or m odif ication. ¶3. The chancellor held a hearing on the m e rits of the petition on M arch 18, 2014. Only Brandy and Ken testif

ied at the hearing. The c hancellor issued a n order on March 28, 2014.
H e g r a n t e d Brandy sole legal custody , m odif ied K en’s v isitation, and ordered that onl y Brandy could claim

Lauren as a dependent. It is f rom this judgm ent that Ken appeals. S TANDARD OF REVIEW ¶4. The M ississippi Suprem e Court has stated that the standard of review in child-custody

cases “is quite lim ited. A chancellor m ust be m anif

e stly w rong, clearly erroneous, or apply an erroneous legal standard in order f or this Court to reverse.” A.M.L. v. J.W .L. , 98 So. 3d 1001, 1012 (¶23) (Miss. 2012) ( quoting Mabus v. Mabus , 847 So. 2 d 8 15, 81 8 (¶8) (Miss. 2003)). F urther, “[ f

]indings o f

f act m ade by a chancellor m ay not be s e t aside or disturbed
upon appeal if they are supported by su b s t a n t ial, credible evidence.” Id. at 1013 (¶23) (quoting Marascalco v. Marascalco , 445 So. 2d 1380, 1382 (Miss. 1984)). ANALYSIS
I. W hether the chancellor erred in awarding Brandy full legal custody. ¶5. Ken initially challenges t h e decision of the chancellor to grant Brandy f ull legal custody of Lauren. For a change i n custody , the party s e eking a m odif ication m ust show by

2a preponderance of the evidence “(1) that a substantial ch a n g e in circum stances has

transpired since issuance o f the custody decree; (2) that this change adversely af f ects the child’s welf

are; and ( 3 ) that the child’s best interests m andate a change of custody .” Mabus , 847 So. 2d at 818 (¶8) (citations om itted). ¶6. First, Ken a sserts the chancellor erred in f inding that Brandy proved a m aterial change in circum stances. “In considering whether there has been s uch a change in circum stances, the totality of the circum stances should be considered.” Id. (citing Spain v
. Holland , 483 So. 2d 3 18, 320 (Miss. 1986)). At the h earing, Brandy testif i ed that K en’s behavior had deteriorated since the divorce, he f ailed to earn enough mo n e y as a f arm e r to provide f

or Lauren, and he could not adequately care f or Lauren. ¶7. Brandy testif

ied that Ken f

requently brought L auren to preschool l ate a n d had caused

a disruption at Lauren’s school during a tour o f the f acilities. A nother event occurred when
Ken brought Lauren to a dance e vent late, rushed her onto the f ield during the perf

orm ance, and knocked Lauren d o wn. B randy also alluded to Ken’s m e ntal s tate, as h e u n d e rwent a psy c h ological evaluation and exhibited obsessiv e - com p ulsive tendencies. Brandy f urther testif i ed that Ken harassed Lauren’s doctors f or inf orm ation. However, B randy stated that her c om m unication w ith Ken suf

f e red, a nd she adm ittedly ign o r e d s o m e o f Ken’s em ails with questions about Lauren’s care. ¶8. Ken testif

ied that while h e did take Lauren to school late, Brandy also took Lauren to school late. Further, Lauren’s teacher said the tardiness was not a problem , and Ken testif ied he would im

prove in the f

uture. Additionally , Ken’s m ental evaluation r evealed m ild anxiety

3but n ot a d iagnosis of o b sessive-com pulsive disorder or any other disorder. Also, Ken denied that his f arm ing incom e c onstituted a m aterial change. Ken began f arm ing in 2008, prior to Brandy and Ken’s divorce agreem ent. Ken f urther asserts that Brandy ’s prim ary m otivation f or seeking a m odif

ication was to com

pel K e n to pay f

or private school and e xtracurricular activities. ¶9. The chancellor f

ound that Ken’s f

a i l u r e to pay half of Lauren’s tuition and activity f ees constituted a m aterial change in c ircum s tances. T he chancellor, however, did not f ind Ken’s f ailure to pay r esulted in c ontem pt. Ken c ontends the divorce decree did not require him to pay these expenses if Brandy unilaterally d ecided on the school and activities. The decree stated: Kenneth Moreland s hall pay one-half ( 1⁄2) of all expenses o f the m inor child f or up to two (2) e x t racurricular a ctivities and the r easonable age appropriate expenses of the m inor child[ ,] which th e p a r t ies a gree are reasonable a nd necessary f

o r the m inor child.

. . . . The parties shall be responsible f o r one-half ( 1⁄2) of all preschool and/or private school tuition and e xpenses f or the m inor child a ttending preschool and/or private school, u ntil graduation, including but not lim ited to registration f ees, school u nif

orm s, school s upplies, lunches[ ,] and any other e xpenses due to the school or as a result of the m inor child a ttending school if the parties agree to enroll Lauren in a private preschool or school

. (Em phasis added). ¶10. Ken and Brandy m utually a greed to the t erm s of the divorce d ecree. T h eref ore, this Court m ust determ ine whether the d ecree, as a contract, com p elled Ken to pay these
expenses. “W hi l e a chancellor’s decisions in a dom e stic action are reviewed f or m anif est

4error, a property settlem e nt agreem ent is a c ontract, and c ontract i nterpretation is a question

of l aw, w hich is reviewed d e novo.” Gaiennie v. McMillin , 1 38 So. 3d 131, 135 (¶8) (Miss. 2014) (cita t i o n om itted). “This Court applies a three-tiered approach to contract interpretation. First, w e apply the f our corners test, wherein this C ourt looks to the language th a t t h e parties used in expressing their agreem ent.” Id. (internal quotations and citations

om itted). ¶11. Loo k i n g t o the term s of the decree, the provisions clearly com p el Ken to pay f

or Lauren’s private-school t uition and expenses only if the pa r t i es agree to enroll Lauren in a private school. Ken t estif ied that he did not agree to Lauren’s attendance at a private preschool or the activities Brandy enrolled her i n. T hough Ken attended Lauren’s events, he did not d iscuss or a gree with Brandy ’s c h o i c e s of school o r activities. Theref ore, Ken did

not have to pay f

or these expenses, and the chancellor e rred in f inding his actions constituted

a m aterial change in circum stances. ¶12. Despite whether the s e instances constituted a m aterial c hange in c ircum stances, it was incum bent upon Brandy to show these changes had an adverse ef f ect o n Lauren. Brandy ’s only contention of a n adverse e f f ect was that som e o f K en’s actions em barrassed Lauren and,

as Lauren grew o l der, Brandy speculated that the extent of em barrassm ent would increase. Brandy , h owever, f

ails to show h ow e m

barrassm ent equates to an ad v e r s e e f f e ct. Lauren continued to perf

orm ed well in school and rece i v ed satisf actory m arks in h er progress reports. As such, we f

ind that Brandy

f ailed to prove any a d verse ef f ects on Lauren. ¶13. This Court has h eld f ar m ore egregious conduct did not warrant a change in custody

5when no adverse ef f ect occurred. In Sudduth v. Mowdy , 9 91 So. 2d 1241, 1245 ( ¶14) (Miss. Ct. App. 2008), this Court f o u nd the m i n or child’s dental problem s, the m other’s inappropriate relationships, a nd the allegations that the m other gave the child anti-psy chotic drugs did not warrant a m odif ication of custody f

rom the m o ther to the f

ather when the f

ather f ailed to prove any

adverse ef

f ects on the child. ¶14. Likewise, i n W

i kel v. Miller , 53 So. 3d 29, 35-36 (¶¶15, 17) ( M i s s . Ct. A pp. 2010), this Court af

f irm ed the chancellor’s f

indings that the m o ther’s interf erence with the f

ather’s visitation, the m i nor children’s behavioral problem s requiring counseling, and the m other’s prior relationships did n ot warrant a mo d i f i c ation in custody w hen the m inor children excelled in school and showed no adverse ef f ects. F or these reasons, Brandy f ail e d to dem onstrate that Lauren suf f ered f rom adverse ef

f ects warranting a m odif

ication. ¶15. The third consider a t i o n f o r m odif i cation is the best interests of the child. The chancellor f

ound a m aterial change in circum stances that adversely af f ected Lauren required

a m odif ication of Ken’s legal custody

. The chancellor stated this change i n custody was in the best intere s t s o f Lauren. But the chancellor f ailed to m ake any f

indings under the Albright 1 f

actors to show how the m odif ication was in Lauren’s best interests. ¶16. This Court f

inds that Brandy f

ailed to m eet her b urden of proving a m aterial change in circum s tances that adversely a f f ected Lauren. The chancellor’s decision w as m anif estly
wrong, as he f

ound that all f

actors weighed in f

avor of granting sole legal custody to Brandy

. Theref ore, this Court reverses the chancellor’s decision and renders that Ken’s legal custody

1 A lb r ig h t v. A lb rig h t , 4 3 7 S o . 2 d 1 0 0 3 ( M iss. 1 9 8 3 ) , sets f o r th th e f acto rs c h an cello rs m u st u s e in d eterm i n in g ch ild cu s to d y . 6is restored.

II. W hether the chancellor erred in modifying visitation. ¶17. Ken a lso c o n tends the chancellor e r red when he m odif

ied the visitation agreem ent. “To m o dif

y a visitation order, ‘ i t mu s t be shown that the prior decree f o r r easonable visitation is not working and that a m odif ication is in the best interest of the child.’” H.L.S.

v. R.S.R. , 949 So. 2d 794, 7 98 (¶9) (Miss. C t. App. 2006) (quoting E llis v. E l lis , 840 So. 2d 806, 8 12 ( ¶25) ( Miss. Ct. App. 2003)). “The chancellor has broad discretion to determ ine the specif ic tim es f or visitation.” Id. (citing Haddon v. Haddon , 806 So. 2d 1017, 1020 (¶12) (Miss. 2000)). ¶18. Ken argues that Brandy f ailed to show that the p rior visitation schedule did not work.
Ken also contends that the visitation schedule in the divorce decree was in place l ess than a
y ear b e f ore Brandy attem

pted t o m odif

y , so the visitation schedule was not i n place long enough to work. In contrast, Brandy argues that L auren’s tardiness when Ken t ook her to school dem onstrated that the visitation schedule needed to change. ¶19. In J

ones v. McQuage , 932 So. 2d 846, 849 (¶¶14-15) ( Miss. Ct. A pp. 2006), this Court reversed a chancellor’s m odif ication of visitation based on the child’s tardiness. This Court f ound the tardiness could be a ttributed to the custodial p arent and that the visitation schedule that was in place f

o r only a f

our-m onth period was not long e noug h t o p r o v e whether it worked or not. Id. F u r t h e r, in another case, this Court r eversed a visitation m odif ication when the m other f

ailed to dem onstrate that the visitation schedule did not work or that the child experienced adverse ef f ects. W itters v. W itters , 864 S o. 2 d 999, 1003 (¶16) (Miss. Ct.

7A p p . 2 0 0 4 ); see also Riley v. Riley , 884 So. 2d 791, 7 94-95 (¶17) (Miss. Ct. App. 200 4 )

(denied m odif

ication where no evidence that tr a n s p o r t a t ion provisions in schedule did not work). Theref

ore, B randy needed to s how the visitation s chedule did not work bef ore the chancellor could have granted a m odif ication. ¶20. Based on Brandy ’s assertion, the chancellor m odif ied visitation so that Ken did not take Lauren to school. This w as in error. The chancellor f ound Lauren’s tardiness when she stay ed with Ken and Ken’s disruption of Lauren’s class i llustrated that the v isitation schedule needed a m odif

i cation in Lauren’s best interests. However, s e veral of Lauren’s t ardies were attributable to Brandy , and there was n o additional evidence to i ndicate that the schedule did

not work aside f

rom Lauren’s tardiness. The chancellor’s f inding that the visitation schedule did n ot work and his f

ailure t o m ake a f

inding o f the best interests o f the chi l d w ere

m a n i f estly wrong. Theref

o re, this Court reverses the chancellor’s m odif icati o n a n d r e i n s t a t e s the original visitation schedule.
III. W hether the chancellor erred i n preventing Ken f rom c laiming L auren as a dependent for tax purposes. ¶21. Ken’s f

inal issue on appeal i s that the c hancellor erred when he gave Bra n d y t h e ability to claim Lauren as a dependent f or t axes every y ear. P reviously , Brand y and Ken alternated the y e ars they c ould c laim Lauren. The c h ancellor, however, stripped Ken of this right based on his f

ailure to pay

f or Lauren’s private-school tuition and her e xtracurricular activities. ¶22. In their property -settlem ent agreem ent, the parties agreed: For f uture y e ars beginning 2012, Father shall claim Lauren as an incom e tax

8dependent in even num b ered y ears and Mo t her shall claim Lauren a s an incom e tax dependent i n odd num bered y ears f

or State and Federal incom e tax purposes. Also, in the judgm ent, the chancellor ruled: [ I]n as m uch as Mr. Moreland is pay ing no portion of the c hild’s private school education and other r elated expense s a n d o n e-half o f the costs of the c hild’s extracurricular a ctivities, and since Ms. Moreland is the custodial parent, Mr. Moreland s hall not b e a llowed to claim the child as a dependent f or incom e tax purposes. ¶23. Based on o ur ruling above, the grounds f or the cha n c e l l o r ’s decision to am end the property -settlem ent agreem ent as to the i ncom e-tax deduction is w ithout a suf f i cient basis. Further, there is sim

ply not suf

f i cient evidence to support the m odif ication of the property

settlem ent agreem ent and change the parties’ agreed-upon decision as to the tax deduction. ¶24. As a result, this Court reverses and r enders a judgm ent that r estores the term s of the original property -settlem ent agreem ent that allows Ken to c laim an i ncom e-tax d eduction f or Lauren in alternating y ears. ¶25. THE J UDGMENT OF THE ADAMS COUNTY CHANCERY C O U RT IS REVERSED AND RENDERED. ALL COSTS OF T HIS APPEAL ARE ASSESSED TO THE APPELLEE.
L E E, C.J., BARNES, ISHEE, FAIR, JAMES A ND W ILSON, JJ., CONC U R . IRVING, P.J., C ONCURS IN PART AND IN THE R ESULT WITHOUT SEPARATE WRITTEN OPINION. CARLT O N , J ., D I SSENTS WITHOUT SEPARATE WRITTEN OPINION. GREENLEE, J., NOT PARTICIPATING.

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