IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO. 2015-CA-00465-COA RITA BRADLEY APPELLANT

v. JOHN DONALD MOTES APPELLEE DATE OF JUDGMENT: 02/12/2015 TRIAL JUDGE: HON. DAW N H. BEAM COURT FROM W HICH APPEALED: FORREST COUNTY CHANCERY COURT ATTORNEY FOR APPELLANT: BRANDON LARUE BROOKS ATTORNEY FOR APPELLEE: ALEXANDER IGNATIEV NATURE OF THE CASE: CIVIL - CUSTODY TRIAL COURT DISPOSITION: MODIFIED PHYSICAL CUSTODY OF ONE OF THE PARTIES’ TW O MINOR CHILDREN TO THE APPELLEE, W HILE KEEPING PHYSICAL CUSTODY OF THE OTHER CHILD W ITH THE APPELLANT DISPOSITION: AFFIRMED: 04/04/2017 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE GRIFFIS, P.J., ISHEE AND GREENLEE, JJ. GRIFFIS, P.J., FOR THE COURT: ¶1. Rita B radley a

ppeals the chancellor’s m odif ication of custody

. W e f

ind n o error and af f irm

. FACTS AND PROCEDURAL HISTORY ¶2. Rita Bradley and John Donald M otes were divorced in Ham ilton County , Tennessee,

on February 9, 2009. Rita was awarded prim ary c u stody of their two m i nor children, JHM and LHM. 1 B oth Rita and John are n ow rem arried. Rita c urrently resides in Petal,

1 F o r p riv a cy

p u rp o ses, w e h av e u sed in i tials f o r th e n am es o f

th e m in o r ch ild ren .Mississippi, and John resides in Pelham , Alabam a .

¶3. On August 11, 2009, John f iled a com plaint in the Chancery C o urt of Forrest County , Mississippi, an d r e q uested a m odif ication of custody of the two m inor children, as well as

o t h e r r e l i e f

. During a hearing on May 1, 2012, the parties agreed that John’s request f or

m odif ication of custody would be held in abey ance and custody o f both m inor children would

rem ain w ith Rita until such tim e as John renewed his request. A judgm ent was s u bsequently entered April 8, 2013. ¶4. On Septem

ber 23, 2013, John f

iled a petition to m o dif

y child custody based on various grounds

. A t w o-day trial w as heard by the original chancellor on May 15, 2014, and June 4, 2014. On June 4, 2014, af ter she had s p o k e n w i t h the m inor children, the chancellor advised the parties a

bout a com m e nt JHM had m ade and a s ked if they wanted h er to recuse. Rita advised that she wanted the chancellor to recuse. As a result, the c hancellor s tated she would recuse. ¶5. On June 5, 2014, the chancellor entered a tem porary order m o dif

y ing custody . The chancellor awarded prim ary custody of L HM to John f o r t h e r em ainder of the sum m er. Prim ary c u stody of JHM rem ained with Ri ta. Thereaf ter, on July 1 1, 2014, the chancellor entered an order of

recusal, and the case was reassigned. ¶6. On July 3 1, 2014, the newly assigned chancellor entered a tem p ora ry order, which revised t he e arlier tem

p orary order entered by

the original c h ancellor. The n ewly assigned chancellor declined to m odif y c usto d y o f L HM on a tem porary basis and f

ound that the judgm ent entered on April 8, 2013, would rem ain in ef f ect until trial.

2¶7. The trial w as held on S eptem ber 3, 2014. At t hat tim e, JHM was f i f teen y ears old, and
LHM w as f

ourteen y ears o ld. The parties s tipulated that JHM elected to live with Rita, and
LHM elected to live with John. In his petition to m odif y child custody , John sought custody of both J H M a n d LHM. However, at t rial, John a dvised that h e was seeking m odif ication of custody of LHM only

. 2 ¶8. By judgm ent entered S eptem ber 11 , 2 0 1 4 , t

h e chancellor f

ound that John’s allegations f or m odif ication of c ustody were m eritless, but ultim ately determ ined “ that the ongoing

m edical and e m otion[ al] p roblem s both children [ were] going through [ wa s ] a m aterial change in circum stances that adversely af f ect[ ed] the m inor children and it [ was] in their best interest that custody

be changed.” The chancellor m odif ied custody and awarded phy sical custody of LHM to John. Phy sical custody of JHM rem ained with Rita. ¶9. Rita subsequently f iled a m otion to set aside or reconsider the judgm ent, w hich was denied by the chancellor on February 12, 2015. The chancellor did, however, set a visitation schedule, which allowed JHM and LHM to see each other every weekend. ¶10. Rita now appeals and argues: (1) the original chancellor erred in m odif y ing custody af ter recusal , ( 2 ) t h e separation of the m inor c h ildren is not in their best interests, (3) the extensive litigation, which adversely af f ected the children, w as caused by J ohn, and (4) the

2 Jo h n clarif

ied th at alth o u g h h e w o u ld lik e cu sto d y o f b o th L H M an d J H M , JH M h as s t a t e d t h a t h e w an ts to liv e w i th h is m o th er. W h en ask ed w h y h e w as n o lo n g e r p u rsu in g cu sto d y o f JH M , Jo h n ex p lain ed as f o llo w s , “I j u st w an t h im to b e h ap p y . If h e’s g o in g to b e h a p p i e r [ w i t h R ita] th an h e is [ w ith m e] an d h e’s g o in g to b e m o re w e ll ad j u sted th an f o rcin g h im

to b e so m ew h ere, th en I’m all f o r it.” 3chancellor erred in perf orm ing an Albright 3 analy s is. S TANDARD OF REVIEW ¶11. “[ W e] will not disturb the f actual f indings of a c hancellor when supported by substantial evidence unl e s s t he chancellor abused his discretion, was m a n if estly wrong or clearly erroneous, or applied an erroneous legal standard.” Campbell v
. W atts , 192 So. 3d 317, 318 (¶5) (Miss. Ct. App. 2015). “Questions of law are reviewed de novo.” Id. ANALYSIS
I. Recusal ¶12. Rita f

irst argues the original chancellor e rred in m o dif y ing custody af

ter she announced that she w ould recuse. W e f ind this issue is m oot since the tem porary o rder entered by the original chancellor was subsequently revi s e d b y t h e newly assigned chancellor.
II. Modification of Custody / Separation of Siblings ¶13. Rita next a r g u e s t hat the separation of JHM and LHM is not in t heir best interests. In other words, Rita argues the chancellor erred in m o dif y i ng custody

. ¶14. A m odif

ication of cust o d y i s warranted when the m oving parent shows “ (1) that a

m aterial change of

circum stances has occurred in the custodial hom e since the m ost recent custody decree, (2) that the change adversely af f ects t he child, and (3) that m odif ication is in the b est interest of the child.” Id. at ( ¶6). “The chancellor m ust consider the totality of the circum stances whe n determ ining whether such a m aterial change in circum stances has

3 A lb rig 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 )

. 4occurred.” Id

. at 319 ( ¶ 6). “ The concept [ of a m aterial change in c ircum stances a dversely

af f ecting the child] is intended to e ncom pass its broadest possible m eaning in o rder to protect children,” including changes that negatively im p act the child’s “m ental and em otional wellbeing.” Marter v. Marter , 914 So. 2d 743, 748 (¶14) (Miss. Ct. App. 2005). ¶15. “A f

t e r f i n d i ng an adverse m aterial change, ‘the n ext step is to apply the Albright f actors to determ ine whether m odif ication i s in the child’s best interest.’” C ampbell, 192 So. 3d at 319 (¶6) (quoting W hite v. W hite , 26 S o. 3d 342, 351 (¶28) (Miss. 2010)). Although “[ we have] never adopted a ny per se rule to the ef f ect that children s h ould not be separated

. . . in the absence o f som e u nusual and com pelling circum stance d ictating otherwise, it is not in the best interest of children to be separated.” Sellers v
. Sellers , 638 So. 2d 481, 484 (Miss. 1994). ¶16. The chancellor r elied heavily on m edical records introduced a t trial as Exhibit 12. The

m edical records show JHM h a s signif icant behavioral issues, with diagnoses of attention def icit hy peractivity disorder, b ipolar disorder, and oppositional def iant disorder. The

m edical r ecords f

urther show that on at l east one occasion, JHM becam e v e r y aggressive toward L HM and Rita. In March 2013, JHM w as s uspended f rom school and w as u ltim ately enrolled in an alternative school beginning in January 2014. ¶17. W i th regard to L HM, the m edical records show that in April 2014, LHM expressed

a d esire to go live with John. 4 The me d i c a l r ecords f u rther show t hat in early May 2014,
LHM was “having excessive e m otional and behavioral issues af ter transitioning back f

rom

4 T h e co u r

t reco rd in d icates L H M elected to liv e w ith h is f ath er as early as 2 0 1 1

. 5his f

ather’s house.” LHM wa s d i a g n o s e d with adjustm e nt disorder with m i xed em otional f eatures, which, according t o his counselor, “began due to the f am i ly situation between his

m other and f

ather.” Thereaf

t er, the m edical r ecord s n o t e that in July 2014, LHM was “having a good sum m er with his f ather.” ¶18. In addition to t he m e dical records, Rita testif ied that LHM showed signs of d epression

as a result of “ [ his] transitioning back and f orth between u s” and “the t hings that JHM went through.” Notably , both Rita a nd John testif ied that LHM does not l ike conf rontation. Rita stated LHM likes every

thing to b e sm ooth and a cknowledged that things a re not alway s

sm ooth, especially if JHM is involved. Altho u g h Rita t estif ied that LHM pref

ers John’s house because he has “unlim ited electronic t im e,” John testif ied that LHM p ref

ers his house because it is peacef

ul. ¶19. Rita a sserts JHM a nd LHM “have a very strong relationship a s brothers” and “keeping them separated would m ost certainly have an adverse im pact on the relationship between siblings.” W hile w e acknowledge a strong pref e rence f or keeping s i blings together, nothing in the testim ony

or m edical records suggests that the separation would adversely af f ect the relationship between JHM and LHM. At no ti me d u r i n g t h e f ive y ears of counseling did
JHM a dvise his counselor that he would be upset if he and LHM were separated. Instead,
JHM advised h is counselor on num erous occasions that he sim ply wanted the custody dispute between his parents to be over. ¶20. Additionally , w hile LHM lived with John over the sum m e r, JHM had the opportunity to visit “at [ JHM’s] election.” However, JHM visited only twice. Rita acknowledged that

6J H M did n ot spend every weekend he w as supposed t o w ith John o ver the summe r s i n c e

“LHM doesn’ t l i k e the b ickering and arguing that continuously takes place while JHM is there with his dad.” T hus, it a ppears that w hile JHM a nd LHM enjoy their tim e together, they are content with the separation. ¶21. W e f

ind the chancellor’s f

inding of an adverse m aterial change is supported by substantial evidence. Although the chancellor did not s peci f ically cite any unusual or

com pelling c ircum stances in s upport of her d ecision to separate the siblings, s h e c onducted

an Albright analy sis a nd based h er decision on the m e d ical r ecords and the trial t estim ony . 5
M o r e over, the visitation schedule allows t he boy s to s ee each o ther every weekend, a n d encourages “any

and all other visitation as m utually agreed upon.” ¶22. Based on our review of the record, we cannot say t he c h ancellor was m anif estly wrong or clearly erroneous. Accordingly , we af f irm

. III. Extensive Litigation ¶23. Rita f

urther a rgues the extensive litigation, which adversely af f e cted the children, was caused by John. R ita asserts “the court’s concern about the repeated a n d l o n g - l a sting litigation between the parties and its ef f ect on t he boy s should not b e h eld against Rita as she

5 D u rin g th e h earin g o n th e m o tio n t o r eco n sid er, th e ch an c ello r stated as f

o llo w s: I d o n ’t en j o y s p littin g c h ild ren . B u t I can n o t h o ld o n e ch ild b ack

. I f eel lik e th at in th e l o n g ru n , i t is in th e b est in terest o f th e ch ild ren to d o t h i s . . . . I w e n t b y w h a t w as i n t h e r e c o rd s . Y ’all t alk ed ab o u t h o w th e y w ere to tally d if f eren t ch ild ren , a n d th at w as p art o f th e s tru g g le w ith it. O n e c h i ld h as b een in altern ativ e sch o o l; w h ereas, th e o th er o n e w as in reg u lar s c h o o l. T h ese cases are so d i f

f icu l t, an d th e C o u rt h as b r o ad d iscret i o n . I l o o k e d at th e A lb rig h t f

a cto rs. I w eig h ed b o th k id s to g eth er . . . B u t I h av e tried to d o ab so lu tely w h at I b e liev e to b e in b o th o f th ese b o y s[ ’] b est in terest . . . 7has not been the one repeatedly initiating the proceedings to bring this about.” ¶24. A review of the record clearly shows both parties contrib u t e d t o the extensive litigation. Thus, we f

ind this issue is m eritless.
IV. Albright

Analysis ¶25. Rita l ast argues the chancellor e r r e d in perf orm ing an Albright analy sis since “[ n]o evidence w hatsoever was presented” of an adverse m a terial change. However, we have determ ined that the chancellor’s f inding of an adverse ma terial change was supported by

s u b s t a n t i a l e v idence. As a result, it was proper f or the chancellor t o perf

o rm an Albright analy sis to determ ine whether m odif i c a t i o n was in the best interests of the children. Campbell, 192 So. 3d at 319 (¶6). Th e c h a n c e l l or considered the Albright f actors and determ ined that it was in LHM’s best interest to live with John a nd f or JHM to rem ain with Rita. ¶26. W e f

ind the c hancellor’s Albright analy sis was proper and s u p ported b y s u bstantial evidence. Moreover, we f ind t he chancellor’s decision to m odif y custody of LHM was not clearly erroneous or m a nif e stly wrong. W e theref

ore af f irm

. ¶27. THE J UDGMENT OF THE FORREST COUNTY CHANCERY COURT IS AFFIRMED. A LL COSTS OF THIS APPEAL ARE ASSESSED T O THE APPELLANT. LEE, C.J., IRVING, P.J., BARNES, ISHEE, CARLTON, W I LSON, G R E E N L E E A N D W E S T B R O O K S , J J . , C O N C U R . F A I R , J . , N O T PARTICIPATING.

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