IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO. 2016-CA-01799-COA AMY VOSS APPELLANT

v. DAVEN JOSEPH DOUGHTY APPELLEE
DATE OF JUDGMENT: 12/07/2016 TRIAL JUDGE: HON. VICKI B. DANIELS COURT FROM W HICH APPEALED: DESOTO COUNTY CHANCERY COURT ATTORNEY FOR APPELLANT: MARGARET ANNA REID ATTORNEY FOR APPELLEE: DAVEN JOSEPH DOUGHTY (PRO SE) NATURE OF THE CASE: CIVIL - CUSTODY DISPOSITION: AFFIRMED IN PART; REVERSED AND RENDERED IN PART - 04/10/2018 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE IRVING, P.J., BARNES AND WILSON, JJ. WILSON, J., FOR THE COURT: ¶1. In Novem

ber 2 014, the DeSoto County C h ancery Court granted Am y Voss and Daven Joseph Doughty joint legal custody of their daughter (Aqua), granted V o ss phy sical custody , and granted Doughty visitation. A little over one m onth l ater, V oss f iled a petition to m odif

y visitation and to hold Doughty i n c ontem pt. Doughty answered and f iled a c ounterclaim f

or

m odif icat i o n of c ustody or visitation and f or contem

pt. The chancellor denied Voss’s petit i o n , g r a nted Doughty ’s request to m o dif y c ustody , ordered the parties to s h are joint phy sical custody o f A qua, and term inated Doughty ’s child s uppo r t o b ligation. On appeal, Voss argues that t he chancellor erred by (1) m odif

y ing custody , (2) deny ing her petition to

m odif y visitation, and (3) declining to f ind Doughty

in contem

pt.¶2. W e hold that c ustody should not have b een m odif ied because there was no evidence of a m aterial change in circum stances since the p rior custody order. Theref ore, we reverse and r ender the m o dif

ication of custody

. W e a lso reverse and render t he chancellor’s sua sponte m o dif

ication of child support, which was based on the erroneous m o dif i cation of custody

. W e af

f irm the chancellor’s denial o f Voss’s requests t o m odif y visi t ation and to hold Doughty

in contem

pt. FACTS AND PROCEDURAL HISTORY ¶3. Aqua was born i n Novem ber 2014. Doughty is Aqua’s f ather, but he and Voss were

never m arried. Doughty is now m arried to another wom an, Ashley

. They live with Ashley ’s

m other and a f

riend, Trey Brady , in a duplex in Senatobia. For a tim e af ter Aqua was born,
Voss and Aqua also lived in the duplex with Doughty , Ashley , Ashley ’s m other, and Brady

. However, Voss and Aqua subsequently m oved in with Voss’s parents in Olive Branch. ¶4. By order e ntered on Novem be r 4 , 2 0 1 5 , 1 the chancery court g ranted Voss a nd Doughty joint l egal custody of Aqua, g r anted Voss p hy sical custody , and granted Doughty visitation the f irst a nd t h i r d w e e kend of each m onth a nd c ertain holiday s. The court also ordered Doughty to pay child support o f $150 per m onth. The court o rdered t he parties not to sm oke in Aqua’s presence and to f ollow any of Aqua’s doctors’ recom m endations. ¶5. Voss was t wenty -three y e ars old at the tim e of trial. She works shif ts at FedEx f

rom 10 p.m . to 3:30 a.m . during the week and f rom 10 a .m . t o 2 p.m . on Sunday s. Her f ather is

a pilot a t FedEx, and her m other, Diana Christopher, cares f or Aqua w hile Voss is at work,

1 The order shows that it was signed about six weeks earlier on Septem ber 23, 2015. 2although of course Aqua generally is asleep while Voss is working night shif ts. Voss catches
up on sleep during the day , and Christopher helps with childcare d uring the day too. Aqua attends p r e school two day s each week f rom 9 a.m . to 2 p.m ., and Voss picks her up f rom school and cares f

or her until her bedtim e at 8 p.m

. ¶6. English is Voss’s s e c o nd language, as she was adopted f rom China when she was eight y ears old. I n addition, Voss has been d iagnosed w ith Central Auditory Processing Def icit (CAPD), a d isorder t hat af f ects her ability to listen, process, and respond to spoken words. Voss is able to understand and com m unicate w ith others, b ut it takes her longer to respond to others because of her disorder. ¶7. As noted above, Doughty lives i n a duplex w i t h h i s wif e, his m o ther-in-law, and a f riend. He is unem

p loy ed. He was f

ired f rom his last job at W alMart in the f all of 2 015. He then enrolled in cosm etology school, but he withdrew. He testif ied that he had to withdraw f or m edical reasons. He has a pplied f or disability benef

its, but h e h as b een denied twice. He claim s that he h as an undiagnosed m edical c o ndition that causes leg and b ack pain and dif f iculty walking or standing. D oughty testif ied that, because of his condition, h e prim arily sits on the f

l oor or c ouch with Aqua when he keeps her. H owever, he testif ied that he is able
to d o every

thing necessary to c are f

or Aqua, except g ive her baths or prepare f ood or drinks f or her. Doughty t estif

ied that “if [ Aqua] wants som ething to drink,

. . . she’ll just bring [ her cup] to [ Brady ] because s he k nows [ Brady ] will go m ake it.” A shley gives Aqua b aths when she is v isiting Doughty

. B ecause Doughty i s unem ploy ed, h e is behind on his child support
pay m ents. However, his m other-in-law has m ade a f e w p ay m en t s f o r him

. At the tim e of

3trial, Ashley had a new job, and she testif ied t hat she would be able to catch up on Doughty ’s child support arrearage f

or him

. ¶8. On Decem

ber 10, 2015, Voss f

iled a petition to m odif

y v isitation, to inc r e ase child support, and to h o ld D oughty in c o n t e m p t f or violating the Novem

ber 2 015 o rder. Voss alleged that Aqua’s visitation schedule did not work because Aqua was “heavily exposed”
to s econdhand a nd thirdhand sm oke, which was m a k ing h er s ick. Voss also claim ed that an increase in child support was warr a n t e d b e c ause Aqua no longer qualif ied f or Medicaid benef its and it w ould b e f

inancially burdensom e f

o r V o ss to pay f

or health insurance by herself

. V o s s asked that Doughty be held in contem pt f or n ot f ollowing a pediatrician’s

recom m endation and f

or exposing Aqua t o cigarette sm oke. Doughty answered and f iled a counterclaim f

or m odif ication of cus t ody or v isitation and f o r contem

pt. He alleged that Voss had f

ailed to keep him

inf orm ed of Aqua’s doctors’ appointm ents. ¶9. The c ha n c e l l o r a s s i g n e d t o h ear the petition a nd c ounterclaim was not the sam e chancellor who entered the prior custody order. The case w as tried o n August 30, 2016. At the conclusion of t he trial, t he chancellor denied Voss’s petiti o n to m odif y visitation and increase child support and declined to hold Doughty in contem p t. However, the chancellor granted Doughty ’s petition t o m odif y custody and awarded h im joint phy sical custody with Voss, with phy sical custody to alternate on a weekly basis. The chancellor also term inated Doughty ’s child support obligation and m ade e ach parent responsible f or the cost of Aqua’s

care during their respective p eriods of custody

. In h er bench ruling, t he chancellor said that the changed circum stances justif y ing a change in custody were (1) that V o s s w a s working

4nights a n d sleeping during t he day , leaving Christopher to care f or Aqu a , a n d (2) Voss’s language and com m

unication issues (“her f

lat af f ect that I observed here today ”). ¶10. Voss f

iled a tim e ly n o t i c e o f a p p e a l

. S h e argues t hat t he chancellor erred by

m odif y ing custody b ecause there was no change in circum stances and because the chancellor did not perf

orm an Albright analy sis. 2 Voss also argues that the chancellor erred b y deny ing her petition to m odif

y visitation and by

not f inding Doughty in contem pt. ANALYSIS ¶11. Doughty f

ailed to f ile a b rief despite a show-cause notice pursuant t o R ule 2 of the Missi s s ippi Rules of Appellate Procedure. “Autom atic reversal is n ot required where the appellee f ails to f i le a brief , but reversal is appropriate if the appellant’s argum e nt creates doubt i n the judiciousness o f the t rial c ourt’s judgm e n t.” Vassar v
. Vassar , 228 S o. 3d 367, 374 (¶22) (Miss. C t. A pp. 2017) (quotation m arks om itted). However, when, as i n this case, “child custody is at issue, the Court is com pelled to review t he record, despite [ Doughty ’s] f ailure to f ile a brief .” Muhammad v. Muhammad , 622 So. 2d 1239, 1243 (Miss. 1993). ¶12. “This Court em

p loy s a lim ited standard of review on appeals f

rom chancery court.” Campbell v. W

atts , 192 So. 3d 3 1 7, 318 (¶5) (Miss. Ct. App. 2015). “A chancellor’s f indings

o f f act will not be disturbed unless m anif estly wrong or clearly erroneous.” Sanderson v
. Sanderson , 8 24 S o. 2d 623, 625 (¶8) (Miss. 2002). “Legal q uestions, however, a re reviewed de novo.” Sanford v. Sanford , 124 So. 3d 647, 652-53 (¶21) (Miss. 2013).
I. Custody

2 See Albright v. Albright , 437 So. 2d 1003, 1005 (Miss. 1983). 5¶13. “A m odif ication of c ustody is warranted when t he m oving parent successf ully shows (1) that a m aterial change of c ircum stances has occurred in the custodial h om e since the m ost
recent custody decree, (2) that the change a dversel y a f f e cts the child, and (3) that

m odif ication is i n the best i nterest of the child.” Campbell , 192 So. 3 d at 3 18 (¶6) ( quotation

m arks o mi t t e d )

. The burden is on t he parent requesting a change o f c ustody to prove a

m aterial, adverse change i n circum stances by a preponderance of the evidence. Staggs v. Staggs , 919 So. 2 d 112, 1 1 5 (¶11) (Miss. Ct. App. 2005). If that b u r d e n i s m et, the chancellor m

u st “apply t he Albright f actors to det e r mi n e w h e ther m o dif ication is in the child’s b est interest.” Campbell , 192 So. 3d at 319 (¶6) (quoting W hite v. W hite , 26 So. 3d 3 4 2 , 351 (¶28) (Miss. 2010)). H owever, if there has been no m aterial, adverse change i n circum stances, the Albright f actors need not be addressed. See id. ¶14. Doughty ’s request to m o dif y cus t o d y d i d n o t a l l e g e a n y s p e c i f i c c h a n ge in circum stances. A f

ter trial, the chancellor f

ound that Voss’s s c hedule—working a t night and sleeping during the day

—was a change in circum stances. The chancellor al s o f o u n d t hat Voss’s “com m

unication problem s” were a change i n circum stances because Aqua was at an age at which she should be learning how to talk. ¶15. Although Voss worked nights and relied in part o n her m o ther’s help, Doughty f ailed
to s how that this w as a change in circum stances s i n c e t h e p r ior custody order. Moreover, there was no evidence that this purported change adversely af f ected A qua, who was, by all accounts, a norm al, happy child. Nor was t here any evidence o f a n y ma terial change in circum stances r e lated to Voss’s CAPD. Doughty testif ied th at Aqua som etim es asked f or

6things by using gestures—f or exam ple, when she w anted Brad y t o g e t her som ething to drink. The chancellor seem i ngly took that to m ean that Aqua, who was less than two y ears old a t the tim e o f trial, had developm ental issues t hat r equired a change in custody

. However, there was sim

ply no credible evidence to support such a f inding. ¶16. W e reve r s e a n d r e n d e r the chancellor’s m odif i cation of custody

. Doughty did not
prove b y a preponderance of the evidence that there had been a m aterial change in

c i r cum stances that adversely af f ected Aqua’s w ell being. T he chancellor’s support f or f inding a m a ter i al change in circum stances—that Voss r elied on h er m other f or child care and had com m

unication issues—we r e not shown to be new circum stances. N or was there
any evidence that these issues had an adverse ef f e c t on Aqua. 3 ¶17. W h en the chancellor m odif ied custody , she also m odif i ed c h i l d s u p p o rt. The prior custody o r der required Doughty t o pay child s upport of $150 per m o nth. The chancellor
term inated D oughty ’s chil d s upport obligation and ruled that e ach party w ould be solely responsible f

or Aqua’s support during their respective periods of custody

. Because we

reverse and render the chancellor’s m odif ication of custody , we also reverse a nd render the

m odif ication of c hild support. Theref ore, the c hild support p rovision of the Novem ber 2015 order shall apply

prospectively

. II. Visitation ¶18. Voss also argues that the chancellor erred by deny i ng her petition to m odif y and lim it Doughty ’s visitation. The chancellor d enied Voss’s petition af ter f inding that there had been

3 In addition, the chancellor did not perf orm any sort of A lbright analy s is. This is also grounds f or reversal. S

ee Campbell , 192 So. 3d at 319 (¶7).

7no “change in circum stances” since the orig i n a l v i s i tation order. The chancellor’s ruling

arguably m isapplied the law concerning m odif i cation of v isitation. “All that need be shown [ to o b tain a m odif

ication of v isitation] is that there is a prior decree providing f or r easonable visitation rights which isn’t working and that [ m odif ication] is i n the best interests of the

c h i ldren.” Cox v
. Moulds , 490 So. 2d 8 66, 869 (Miss. 1986). On this issue, “ o u r f a mi l i a r change in circum stances rule has no application.” Id. (citation om itted). ¶19. N o n e t h e l ess, w e a f f irm on this issue because no evidence was presented tha t t h e visitation schedule was not working or was not in Aqua’s b est interest. Voss petitioned the

cou rt t o m odif

y custody only t hirty -six day s af ter the original visitation order was entered.
A “visitation plan should be given an opportunity to work.” Jones v. M cQuage , 932 So. 2d 846, 849 (¶14) (Miss. C t. App. 2006) (holding that there w as n o evidence that a vis i tation

s c h e d u le was not working f our m onths a f

ter its entry ). Voss did not g ive the o r i g i n a l visitation plan in this case an opportunity to work. ¶20. Moreover, Voss f

a iled t o prove that the o riginal visitation plan was not working. She alleged that it was n ot working only because A qua was being exposed t o s mo ke while she

was with Doughty

. A representative f rom a drug testing com

pany testif

ied that a January 6, 2016 h a i r f

ollicle test s howed t hat Aqua had absorbed and m etabolized nicotine f rom secondhand or thirdhand cigarette sm oke. However, the witness te s t i f i ed that the test detected nicotine absorption d ating b a c k s i x m onths, so it c ould have ref l ected exposures prior to the chancery court’s prior custody o rder. The witness also testif ied that the test did
not identif

y wh e n o r w here t he exposure occurred or “whether it was once, twice, or three

8tim es”—only that it occurred som etim e in the prior six m onths.

¶21. A pediatric pulm onologist, called by Voss a s an expert witness, t e s t i f i e d t hat “any nicotine level in y our body is sign i f i c a n t

. ” He o pined that Aqua’s “chronic runny nose,”

c o u g h ing, congestion, and o ther “upper respiratory ” issues “ could be attributable to

. . . exposure t o [ cigarette] sm oke.” However, he a cknowledged that “a lot of things” can cause such issues, that none of Aqua’s t reating p hy sicians h ave attributed t hese issues t o exposure
t o c i g a r e t t e s m oke, a nd that Aqua does not have a sthm a. The witness had never seen or

exam ined Aqua, and his opinions were based solely on a review of

her m edical records. ¶22. Doughty and Ashley adm itted that t h e y s mo ke, but both denied that they sm oke in their house or in Aqua’s presence. They adm itted that Ashley ’s m other, who pay s m ost of their bills and h a s paid som e child support f or Doughty , does sm oke in her bedroom with the door closed. They

denied that they

allowed any o ne to sm oke in Aqua’s presence. ¶23. Obviously , parents should n ot expose their children t o c i garette sm oke. However, the evidence indicated that Doughty tried to protect Aqua f r om exposure, and t here was no clear link b etween exposure and Aqua’s congestion, runny noses, and coughing. E specially given the short tim e between entry of the prior c u s t o d y o r d e r a n d Voss’s p etition to m odif y visitation, there was i nsuf f icient evidence that the visitation s chedule was not working. W e theref ore af f irm the chancellor’s denial of Voss’s petition to m odif

y visitation.
III. Contem pt ¶24. Voss also argues t hat the chancellor should have c i ted Doughty f or contem pt because he violated t he prior o rder’s provision that “ n either party shall sm oke cigarettes in [ Aqua’s]

9presence.” Voss also a rgues that Doughty p e rm i tted Aqua to be exposed to secondhand

sm oke, i n c o n t r a v e ntion of her doctor’s recom m endations. However, a s noted above, the evidence did not clearly establish w hen or where Aqua w as e x posed to sm oke. Indeed, there

was testim ony that t he test results adm itted into evidence m ay h ave ref l ected exposures that predated the prior custody o r d e r . In addition, Doughty and A shley testif ied that they tried to protect Aqua f

rom exposure to sm oke. ¶25. “W hether a party is in contem pt i s a question of f

act to be decided on a c ase-by -case basis. A chancellor has substantial discretion in deciding contem pt m atters because of

the chancellor’s ‘tem

poral and visual proxim ity ’ to the litigants.” Gilliland v. Gilliland , 984 So. 2d 3 64, 369-70 (¶19) (Miss. Ct. App. 2 008). On this evidence, we cannot say that the chancellor m anif

estly erred or abused her discretion by not f inding Doughty

in contem

pt. CONCLUSION ¶26. W e reverse and render the m odif ication o f custody b ecause Doughty f ailed to prove
any m aterial change in circum stances since the entry of prior custody order. Theref ore, we also reverse and render the chancellor’s sua sponte m odif ication of child support. W e af f irm the denial of

Voss’s petition to m o dif

y visitation and to hold Doughty in contem

pt. ¶27. AFFIRMED IN PART; REVERSED AND RENDERED IN PART. LEE, C .J., IRVING A ND GRIFFIS, P.JJ., BARNES, CAR LTON, FAIR, GREENLEE, WESTBROOKS AND TINDELL, JJ., CONCUR.

10