IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO. 2013-CA-01269-COA

APRIL MICHELLE BLANN VOGT APPELLANT

v. BRIAN WESLEY BLANN APPELLEE
DATE OF JUDGMENT: 01/28/2013 TRIAL JUDGE: HON. MITCHELL M. LUNDY JR. COURT FROM W HICH APPEALED: DESOTO COUNTY CHANCERY COURT ATTORNEY FOR APPELLANT: B. BRENNAN HORAN ATTORNEY FOR APPELLEE: LEIGH A. RUTHERFORD NATURE OF THE CASE: CIVIL - DOMESTIC RELATIONS TRIAL COURT DISPOSITION: DENIED PETITION FOR MODIFICATION OF CUSTODY DISPOSITION: AFFIRMED – 09/15/2015 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE IRVING, P.J., BARNES AND FAIR, JJ. IRVING, P.J., FOR THE COURT: ¶1. April Vogt appeals f rom the judgm ent of the DeSo t o C o u n t y C hancery Court that granted Brian B lann’s petition f or m odif ication o f c h ild custody and awarded him phy sical custody of their m inor daughter. On a ppeal, April raises the f

ollowing issues: (1) whether the chancellor erred in f

inding a m aterial and substantial change in circum stances since the divorce decree, ( 2 ) w hether that m aterial change was suf f icient to warrant a change of custody , and (3) whether the chancellor erred in his application and analy sis o f the Albright 1

1 A lb rig h t v. A lb rig h t , 4 3 7 S o . 2 d 1 0 0 3 , 1 0 0 5 (M iss. 1 9 8 3 ).f

actors. Finding no error, we af f irm the chancellor’s ruling. FACTS ¶2. Brian and April h ad o ne daughter, A dy s o n, be f o r e t h e y d i v orced in 2 007 on the ground of irreconcilable dif f erences. The c h ancellor awarded phy sical and legal custody of Ady son to Apr i l a n d g r a n t ed Brian v isitation rights. In 2012, B rian f iled a p etition f

or

m odif ication, alleging that a substantial change in circum stanc es that negatively af f ected Ady son had occurred. ¶3. In Septem

ber 2010, April m arried Kenny Vogt, and they have one child together. At trial, she t estif

ied that she has another child but does n ot know the identity of that child’s f ather. 2 However, April conf irm ed that, af

ter her divorce f

rom Brian and up unti l h er

m arriage to Kenny , she dated about f ive m en, one of

whom she lived with. ¶4. April acknowledged that in the approxim ate f ive y ears since the d ivorce, Ady son had attended several dif

f erent schools and had been absent f rom school several tim es because she and Ady son had m oved to nine d if f erent residences. According to the record, w hile Ady son

was in kinderga r t en a t one s chool, she m issed twelve day s o f school, n ine of which were unexcused. In another school during the sam e school y ear, Ady son m i ssed six d ay s and was tardy twelve tim es. ¶5. April explained that every absence was r elated t o Ady s on’s s ickness and that Ady son

2 T h e reco rd d o es n o t in f

o rm u s w h e th er th is c h i ld w as b o rn af ter A p r il’s sep aratio n f ro m B rian o r b ef

o re h er m arriag e to h im

. 2had had coughing spells d ue to reactive-airway disease. Also, April stated that when Ady son

was ill, she tried to get a doctor’s note excusing Ady son. H owever, there were tim es when April was unable to get an excuse b ecause she did n ot take Ady son to a doctor—f or exam ple, when A dy son had only a cold but was unable to a t tend s chool. In addition, April stated that Ady son had contracted strep, hand-f oot- a n d

- m outh disease, a nd other childhood illnesses, but that, overall, A dy son w as healt h y . I n r e f erence to the t ardiness, April explained that Ady son i s not a m orning p e r s o n a n d t h a t i t was a “ f i ght t o get her dressed and ready f or school,” but that it had becom e “trem endously better.” ¶6. April also testif

ied that Ady son has weak teeth, r equiring dental care, that A dy son has had to have several teeth capped as a result of tooth decay , and that s h e takes Ady son to the dentist regularly to resolve dental i ssues. April s tated that Ady son is a joy and very outgoing and that Ady son’s teachers have conf irm ed that Ady son i s upbeat. April expla i n e d t h a t Ady son i s never w ithdrawn when she is with h er. April o pined that Ady son d i d not f eel

com f o rtable with her f

ather a nd that she b elieves that is the reason Ady son i s withdrawn with him

. ¶7. At the tim e of trial, Ady son was i n the f irst grade and h ad accum

ulated seven absences and f o ur t ardies. April testi f

i e d that Ady son had a “C” in m ath, a n “F” in reading, “A” in science, and in her rem aining classes. April testif ied that she had h ired a tutor f or Ady son and that the teachers believed Ady son was im proving. ¶8. April adm itted to sm oking but stated that it was l im ited to t h e o utside of the house.

3Also, she adm itted to drinking alcohol on occasion and identif ied several pictures of herself with alcoholic drinks that were posted on her social-m edia page. April explained that she and Kenny were s e parated at the tim e the pictures were taken. April testif i e d a bout an incident involving the p olice. S he stated that on one occasion while she was e s tranged f rom Kenny , a m ale f

riend cam e over to her house f or c of f ee. Around 2:00 a.m ., Kenny knocked

on the door and w as upset that she was with another m an. April’s m other, P eggy Foster, who

was at the house watching the children, called the police. April testif i ed that she got m ad and started “going o f

f ” on the police while try ing to explain the situation. The police arrested her, and d uring the arrest, she tried to kick out a window of the police car. However, April stated that the children were s l eeping and did not witness her erratic behavior. Furtherm ore, April testif

ied that she and K enny had r esolved their issues b y attending parenting c lasses and participating in m a rriage counseling. She testif ied that Kenny

had never b een violent with her or t h e c h i l d ren and that they argued but not in f ront of the children. S he stated that Kenny loved all three children. ¶9. On the other hand, April stated that Brian is very aggressive, that she cannot have a conversation with him , and that she was concerned about B rian’s d rug addictions and heavy drinking. Also, April testif ied that Brian had only t aken Ady son t o t h e d octor on two occasions. A pril explained that she sent worn or o utgrown clothes with Ady s on when she visited her f

ather because she did not get the c loth e s back. She also e xplained that, at her house, her children had their own bedroom

. However, she was concerned that Ady son did

4not have a room of her own when she stay ed w i t h B r ian and questioned how he would be

able to af f ord caring f

or Ady son, in addition to his two sons. ¶10. Kenny testif

i ed about the incident involving him , April, and the police. He stated that he s howed up at their house around 2:00 a.m . and wanted t o go in. Kenny acknowledged that he and April had been separated f or several weeks p rior to the incident. Kenny stated that April had been drinking, but she did not appear drunk. Kenny agreed that the situation “becam e elevated” when the police arrived and that April cursed at the police. H owever, he did not see April try to kick the w i n d o w o ut o f the p olice car. Kenny conf irm ed that as a result of this i n cident, the Departm ent of Hum an Services ( D H S ) t o ok legal custody of all the children f

or s i x m onths. 3 K enny also conf irm ed that the chancellor issued a r estraining order a gainst him and instructed him that he was not t o be alone with the c hildren, nor g o to the m arital hom e. He stated that he was allowed t o see April and the c h i l dren in public places and that h e of

ten m et them when they went grocery shopping. Kenny e x plained that, eventually , DHS returned the children to him and April, a n d h e w as a ble to return to the

m arital h om e. Also, Kenny c onf irm ed that he and April attended counsel ing sessions as suggested by

the y outh court. ¶11. Brian testif

ied that he was rem arried and that Ady son h a d b e e n visiting him every other w eeke nd. He s tated that he had o bserved detrim ental changes i n his daughter, specif ically that she seem ed w ithdrawn and her account of events of ten v aried, as if she were

3 A lth o u g h D H S h a d leg a l cu sto d y , th e ch ild r en rem ain ed in A p r il’s care. 5“coached.” He b e lieved Ady s on’s withdrawal had becom e worse in the last f ew y ears. He stated that he did not com m unicate well with April. He was a lso concerned about Kenny ’s violent nature. 4 Brian explained that he was notif i ed by DHS that there were issues with his children’s well- being af

t er the police incident involving A pril. Brian testif i ed that once he heard about the reasons DHS becam e i nvolved, he f iled this custod y - modif

ication action. He w orried about A dy son’s saf ety and her well-being while she lived with April and Kenny

. Also, Brian stated that h e had i ssues with the n um b er of m en April had b een w ith i n the past, including one that April and Ady s on lived with at one tim e. ¶12. Brian t e stif

ied about Ady son’s d e n t a l i s s ues. He stated that Ady son drank out of a bottle or a sippy cup and that she drank too m uch m ilk, which he believed caused her dental problem s. He a dm itted that h e had not taken A dy son to a d entist, but explained that a dentist of f ice is not open on the weekends, which is when he had Ady son. Brian was also c oncerned that Ady s on was alway s sick. He agreed that he had o nly taken Ady son t o a doctor’s of f ice twice in seven y ears. ¶13. Brian stated that he called Ady son’s school and f ound out that Ady son had an “F” in reading. H e was concerned about all the a bsences a nd tardies a t school. He testi f i ed that he h ad a very close-knit f

a m i ly , w hich included grandparents, cousins, aunts, and uncles, and that he h ad a stepdaughter and a stepson, i n a ddition to his two sons with his current wif e.

4 T h ere w as t estim o n y th at K en n y h ad b een in carcerated

. H o w ev er, th e reco rd d o es n o t sh e d lig h t as to h is co n v ictio n an d sen ten c e . 6Ady son, according to Brian, gets a long with them

. Also, B rian testif ied that w hen he picks Ady son up, she of

ten is not appropriately

dressed, wearing outgrown clothes. ¶14. Brian testif

ied that h e worked f

or his m other a n d stepf

ather. He stated that he would be able t o af

f ord having another child but did not expect an i ncrease in his wages. He stated that he f inished the ninth grade a nd received his GED. Brian agreed that Ady son’s reading im p edim ent may be hereditary

. Also, Brian stated that he w as concerned with April’s drinking h abits. Furtherm ore, Brian adm i tted that he was once addi c t e d to Lortab, a prescription-pain m edication. He attended a m ethadone clinic f or alm o st two y e ars, and he

went to a rehabilitation clinic f or alcohol abuse. B rian testif ied that a s of the tim e of trial, he did not have any substance-abuse problem s. I n addition, B rian adm i tted that his current wif e, Am anda, sm oked, but only outside the house. ¶15. Am anda testif

ied that other than Ady son’s rotting teeth, her health seem ed to be f ine when she cam e to visit. H owever, she agreed that Ady son had a chronic cough p rior to trial. Also, A m anda testif

i ed as to how withdrawn Ady son had becom e. Am anda stated that “f or her to be seven y ears old and to go this q u i c k l y i n to s uch a withdrawn stage and such hesitance abo u t s p e a king, and every day lif e ; that really concerns m e that she’s like that now.” ¶16. Peggy testif

i ed that she w as not f

earf ul f or A d y s o n ’ s w e l l

- b e i n g w ith A pril and Kenny

. She testif

ied that K enny was a good m an and that she had n ever seen him be violent. She explained that she took care of April’s children when April was not m arried, but, at the

7tim e o f trial, April prim arily cared f or the children, a n d she helped when she could. Peggy conf irm ed that nothing had happened that caused her to be concerned f or the children. ¶17. Af ter considering the evidence and testim ony , the c hancellor f ound that there existed

a “substantial m aterial change in c ircum stance since the August 2007 divorce adverse to the child.” A f

ter f u rther evaluating the Albright f actors, the chancellor awarde d j o i n t legal custody with phy sical custody to Brian and April having visitation rights. April appeals f rom this judgm ent. DISCUSSION ¶18. “The standard of

review in child-custody cases is quite lim ited.” Johnson v. Gray , 859 So. 2 d 1006, 1012 (¶31) (Miss. 2003). “A chancellor m ust b e m anif

e stly wrong, clearly

erroneous, or [ m

ust have appl[ ied] a n erroneous legal standard in order f o r [ an appellate court] to reverse.” Id. (citing Mabus v. M abus , 847 S o . 2 d 8 1 5 , 818 ( Miss. 2003)). “Findings of f

act m ade by a c hancellor m ay not be set a side or disturbed [ on] appeal if they

are supported by s ubstantial, c r e d i b l e evidence.” I d. (citations om i tted)

. Furtherm ore, “a

m odif ication of custody is warranted [ if ] the m oving parent successf ully shows

. . . a m aterial change in circum stances w hich has an advers e e f f e c t on the child, and m odif ication of custody would be i n the c h i l d' s best interest.” I d. at 1 013 (¶33). Specif ically , “a non-custodial p a

r t y m ust p rove [ that] (1) there has b een a substantial change i n circum stances af f ecting the child, (2) the change adversely af f ects the [ child’s] welf

are, and (3) a change in custody

is in the best interest of

the child.” Id.

81. Material and Substantial Change of Circumstances

¶19. The c hancellor determ ined that there had been a m aterial change in circum stances that adversely af

f ected Ady s on’s well-being based o n the f ollowing f

indings: April’s “num erous

m oves,” which c reated instability ; “num erous m en” in Ady son’s lif e; “num erous tardies and absences at the school[ s,]” som e of w hich were unexplained; a nd Ady son’s “suf f ering” grades. The chancellor a lso noted, with respect to the police incident, that the “reaction that the m o ther did [ sic] at that tim e to that c ircum stance was certainly not sm art.” T he chancellor a lso pointed out that April did not know if “the children [ had woken] up and look[ e d] outside” and had seen their m other’s behavior. ¶20. The record is silent as t o April’s living condit i o n s a t the t im e o f the initial custody ord e r , so w e have n othing to com pare. H owever, it is clear that since the divorce, April’s hom e lif e has been very

unstable. W e also note that Ady s o n was only two y ears old at the tim e of the initial c ustody o rder and was seven y e ars o ld at the t im e o f the h earing that resulted in the change o f custody

. So it i s c l e ar that Ady son’s academ i c problem s that the chancellor was concerned about c annot b e com pared t o any academ i c s ituation at the t im e of the initial custody

order, a s she was not a ttending school a t that t im e. However, it does

not necessarily f

ollow that the chancellor was precluded f r om looking at and considering the

num erous m oves that April had m ade, as well as Ady son’s a c adem ic perf o rm a n ce. Af

ter all,

our law is well settled that the polestar consideration in child-custody cases is alway s the best interest of the child. W hile we m ay have reached a dif f e r ent conclusion h ad we been the f act-f inder, given o u r def

erential standard of review on f a ctual issues, we cannot say that the

9chancellor m anif estly erred in f

inding that a m aterial and substantial change i n circum stances that adversely

af f ected the m inor child had occurred. This issue is without m erit. 2. The Chancellor’s Application and Analysis of the Albright Factors ¶21. The c hancellor evaluated Ady son’s best interest, using the Albright f actors and stated: the sex of the c hild f

a vored April; health issues, including the dental issues, f avored Brian; continuity of care f

avored A pril; parenting s kills f avored Brian; capacity t o provide prim ary child care a nd em

p loy m ent f avored the parents equally ; m oral f i t n e s s f avored Brian; Ady son’s pref

erences were not c onsidered; a nd the stability of environm ent f avored Brian. ¶22. W e note that the c hancellor’s discus s i o n o f the Albright f actors was not very extensive. However, he discussed each of them and m ade a determ ination a s to which f actors f avored which party

. Again, given our def erential standard of review in f actual m atters, we
cannot say that the c hancellor m anif estly erred in m aking the c all that he m ade w i th respect
to the A lbright f

actors. T h e r e f

o re, we c annot f

ind reversible e rror in the chancellor’s decision to transf

er the custody of Ady son f rom April t o Brian. This issue is w ithout m erit. ¶23. THE JUDGMENT OF THE CHANCERY COURT OF DESOTO COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT. LEE, C.J., GRIFFIS, P.J., BARNES, ISHEE, CARLTON, MAX WELL, FAIR, JAMES AND WILSON, JJ., CONCUR.

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