IN THE SUPREME COURT OF MISSISSIPPI

NO. 2000-CA-01866-SCT

PHILLIP MOSLEY, SR.

v.

ANGELA ATTERBERRY

DATE OF JUDGMENT: 10/10/2000

TRIAL JUDGE: HON. SARAH P. SPRINGER

COURT FROM WHICH APPEALED: LAUDERDALE COUNTY CHANCERY COURT

ATTORNEY FOR APPELLANT: LISA MISHUNE ROSS

ATTORNEY FOR APPELLEE: MELISSA LYNN GEARHART

NATURE OF THE CASE: CIVIL - DOMESTIC RELATIONS

DISPOSITION: AFFIRMED - 06/20/2002

MOTION FOR REHEARING FILED:

MANDATE ISSUED: 7/11/2002

BEFORE SMITH, P.J., COBB AND DIAZ, JJ.

COBB, JUSTICE, FOR THE COURT:

¶1. On October 22, 1999, the Lauderdale County Chancery Court granted a divorce to Phillip Mosley, Sr.

and Angela Mosley (now Atterberry) on grounds of irreconcilable differences. In the same hearing, the

chancellor awarded custody of the couple's minor children, Roshonda and P.J., to Angela and directed

Phillip to pay child support and alimony to Angela. Phillip has since appealed the divorce decree to this

Court, which we recently affirmed in part and reversed in part, in Mosley v. Mosley, 784 So.2d 901 (Miss.

2001)(Mosley I).

¶2. Only four months after the final judgment was entered, during the pendency of Mosley I, Phillip filed a

motion seeking modification of custody, child support and alimony. The chancellor modified the custody

arrangement and child support in part, denying the rest of Phillip's motion. Aggrieved, Phillip now raises

numerous issues on appeal, including that Angela's false testimony contaminated the record sufficiently to

warrant modification of custody; that alimony should be terminated due to Angela's post-divorce sexual

conduct; that he should be reimbursed for child support paid when the child was not with Angela; and that

custody of his son should be granted to him. He also raised three issues which were not raised at the trial

level, at least insofar as the record before us reflects, and thus are not properly before this Court: namely,

that the chancellor failed to strike Angela's false testimony, that the modified child support was in excess of

the 14% guideline, and that Angela should have to pay child support to him for Roshonda. Those which are

properly before this Court can best be summed up in Phillip's final assignment of error, as modified:

WHETHER THE CHANCELLOR WAS MANIFESTLY WRONG AND/OR ABUSED

HER DISCRETION IN FINDING THAT THERE WAS NOT SUBSTANTIAL

EVIDENCE TO WARRANT A MODIFICATION IN CUSTODY AND OTHER

MODIFICATIONS REQUESTED.
¶3. Because we conclude that the chancellor adequately considered the facts, applied the correct law, was

not manifestly wrong and did not abuse her discretion, we affirm.

FACTS

¶4. The facts surrounding the divorce of Phillip and Angela are fully explained in Mosley I, 784 So.2d at

902. Briefly stated, the chancellor heard arguments from both sides before granting a divorce based on

irreconcilable differences. Id. at 903. After an on-the-record review of the Albright factors, the chancellor

awarded custody of both children to Angela, along with periodic alimony of $150 a month and lump sum

alimony in the amount of $150 a month until those payments totaled $10,000. Id. The chancellor also

ordered that Phillip pay child support for both children, in the total sum of $600. Id.

¶5. On appeal, we noted that Roshonda had actually lived with Phillip during the time that Phillip had paid

child support to Angela, and we held that Phillip was entitled to reimbursement for part of that child support

in an amount to be determined on remand. Id. at 905. We affirmed the chancellor on all other issues. Id. at

910.

¶6. Four months after the chancellor's initial ruling, and before Mosley I was decided, Phillip filed a petition

for modification (then later an amended petition) in which he alleged, inter alia, that there had been

substantial and material changes in the circumstances which warranted a modification of custody and

support of his daughter Roshonda and son, Phillip, Jr. (P.J.). Specifically, Phillip claimed in his petition:

1) that Angela continued to have an adulterous, out-of-wedlock and abusive relationship with her livein boyfriend, had become pregnant by him, and had lied about both the relationship and the

pregnancy during the divorce hearing;

2) that Angela had consistently refused to provide Phillip with her address or telephone number, in

violation of UCCR 8.06, and forced Phillip to pick P.J. up at a local sheriff's office for visitation;

3) that Angela had refused to take custody of Roshonda and denied Roshonda's attempts to visit, and

that he was entitled to reimbursement of the child support payments he made to Angela during the

time Roshonda was in his custody;(1)

4) that Angela had fraudulently used Roshonda's social security number to obtain credit for herself;

and

5) that Angela has not been gainfully employed since gaining custody of the children and will not

maintain stable employment.

¶7. Angela did not file any response to the petition, but addressed these allegations in her response to

interrogatories and during her testimony at the modification hearing. She testified that she still saw her

boyfriend on weekends and that she was pregnant by him at the time of the divorce, but did not know it at

that time.(2) Phillip testified that he knew about the relationship between Angela and her boyfriend at the

time of the divorce, and had known about it since May of 1997.

¶8. Angela admitted that she had not been timely in advising of her new addresses and explained that during

the year between the divorce hearing and the modification hearing, she had lived at three different
addresses: first, with two friends for a couple of weeks; next she moved in with her boyfriend for

approximately 4 months until she "could get on her feet;" and finally she rented a three-bedroom, two-bath

townhouse where she has lived ever since, testifying that her rent was current and "paid up for three

months." She admitted that her boyfriend stays at her residence occasionally on weekends when he is in

town. Phillip testified that on one occasion when he came to get P.J. for visitation, he could not find her at

the first address she had given. However, on that occasion he located her by telephoning and getting the

new address. There was no testimony that Angela's failure to notify was done deliberately or to thwart the

visitations with P.J.

¶9. Angela also testified that she had for some time been gainfully self-employed in the resale business,

selling clothes, furniture and other things, and had recently obtained a business license to open "Angie's

ReSale Shop" in the Atlanta area.

¶10. The chancellor heard testimony from Roshonda (then 18 years old and a student at Meridian

Community College), as well as from Phillip and Angela, with regard to the allegations that Angie had

refused to take custody of Roshonda and had denied her visitation. Roshonda admitted that Angela had

asked her to come live with her in Georgia, in compliance with the chancellor's custody order in Mosley I,

but she refused to go. Roshonda testified that she never planned to go with her mother, because she did not

want to leave Meridian ("a stable place") to go a place where "I have no whereabouts" and did not want to

live with Angela because of Angela's "living conditions."

¶11. When asked about any money she had received from Angela or that Phillip received, Roshonda said

she received only "about three or four hundred dollars" soon after the divorce, but had not received

anything lately.

¶12. Roshonda also confirmed Phillip's allegation that Angela had apparently used Roshonda's social

security number, without permission, to obtain credit.

¶13. Phillip's testimony as to why he wanted full custody of P.J. was scant and general. He said that Angela

was unstable, as evidenced by her having moved three times in the year between the divorce and the

modification hearing; that she did not have verifiable income because she is self-employed; and that he did

not know how she was taking care of P.J. financially (other than the support he was sending). After

testifying that he was not making a judgment about Angela's morality from living with a man outside of

wedlock, he stated: "she's a young lady. She's going to have relationships." He went on, however, to make

unsubstantiated and unexplained allegations that her boyfriend is "a drug dealer." He offered no specific

information. When asked on cross examination if this was his only objection to her boyfriend, he stated

"Yes." There was no other testimony or evidence offered other than Phillip's bare allegations.

¶14. Phillip reiterated his complaints about the failure to provide current addresses; the difficulties in

reaching her by telephone; and her failure to reimburse him for child support payments he made on behalf of

Roshonda while she was actually residing with him. When asked by his counsel if he would request child

support from Angela for P.J., if he was granted full custody, he replied "I don't have to have child support"

and "I don't need to have financial help from her." However, soon thereafter, still on direct examination,

while explaining his arrearages in child support payments, he testified that his "utilities are way behind, my

bills were way behind, and, you know, the well is running dry."

¶15. After hearing testimony on each of Phillip's requested modifications, and arguments from both sides,
the chancellor rendered a bench opinion and judgment in which she concluded that Phillip had failed, in part,

to meet his burden of proving the material and substantial change in circumstances required for modification.

She specifically found, inter alia:

1) that the burden was on Phillip to show material and substantial change in circumstances necessary

to require modification of the previous judgment.

2) that custody of Roshonda was awarded to Phillip, but she left custody of P.J. with Angela because

Phillip had not proven a material and substantial change in circumstances surrounding P.J's custody;

3) that Phillip's child support obligation should be reduced from $600 a month to $400 a month;

4) that Phillip's request that periodic alimony be modified or terminated should be denied, finding that

there was no proof that the boyfriend was supporting Angela, but their residing together for several

months was a cost reducing situation;

5) that Angela had committed perjury in her court, and was in contempt for violation of Rule 8.06

(notification of address changes) and ordered her to be incarcerated for 2 days in the Lauderdale

county jail;

6) that Angela should in the future inform Phillip of any changes in address within five days; and

7) that the parties should not exchange P.J. at a sheriff's office and should not otherwise harass each

other;

8) that Phillip had not come in with clean hands, and his failure to pay child support constituted

contempt, but he had purged himself by paying the arrearage.

STANDARD OF REVIEW

¶16. In Mosley I, we reiterated the familiar standard of review for a domestic relations case:

This Court applies the familiar substantial evidence/manifest error rule. This Court will not disturb the

findings of a chancellor unless the chancellor was manifestly wrong, clearly erroneous or an erroneous

legal standard was applied. This is particularly true in the areas of divorce, alimony and child support.

The word "manifest," as defined in this context, means "unmistakable, clear, plain, or indisputable."

Mosley I, 784 So.2d at 904 (internal citations omitted).

DISCUSSION

¶17. A complication in our review arises because Angela did not file a brief with this Court in response to

Phillip's brief on appeal. As this Court has stated, "[f]ailure of an appellee to file a brief is tantamount to

confession of error and will be accepted as such unless the reviewing court can say with confidence, after

considering the record and brief of appealing party, that there was no error." Dethlefs v. Beau Maison

Dev. Corp., 458 So.2d 714, 717 (Miss. 1984). However, automatic reversal is not required. Moreover,

where child custody is at issue, the Court is compelled to review the record, despite a failure to file a brief.

Muhammad v. Muhammad, 622 So. 2d 1239, 1242 (Miss. 1993). This we have carefully done and have

found no manifest error or abuse of discretion.
¶18. Phillip's primary concern seems to be that the chancellor turned a blind eye to the record contaminated

by Angela's perjury and did not strike any of her perjured testimony from the record. He recommends that

we deliver the death knell to Angela's claims "by striking all of her testimony and reversing and rendering the

chancellor's award of alimony and custody " In support of this argument Phillip cites Pierce v. Heritage

Props., Inc., 688 So.2d 1385 (Miss. 1997), and Scoggins v. Ellzey Beverages, Inc., 743 So.2d 990

(Miss. 1999). Unfortunately for his argument, neither case is germane to the case sub judice. In both of the

cited cases, this Court affirmed the trial court's dismissal of an action because the plaintiff submitted false

answers during the discovery phase of the lawsuit. Moreover, no motion to strike or other objection of that

nature was made by Phillip, insofar as we can tell from the record before us.

¶19. Honest and truthful testimony in trials is the basic foundation of our court system. In the case sub

judice we have Angela, a respondent to a petition for modification who admits that she lied about several

matters at the divorce hearing that determined custody, child support and alimony. The chancellor

addressed the seriousness of taking an oath to tell the truth and admonished Angela that failing to tell the

truth brings into question all her testimony. Further, based on Angela's perjury,(3) as well as on Angela's

failure to comply with UCCR 8.06, the chancellor ordered that Angela should be incarcerated for two

days. The chancellor did not further elaborate on the specific incidences of perjury or what effect, if any, the

perjury might have had on the previous custody, child support or alimony awards, but it is clear that she

considered it in her decision-making process.

¶20. During the modification hearing, Phillip's attorney questioned Angela about lies she had told regarding

her pregnancy at the hearing on December 17, 1999 (subsequent to the divorce granted in November

1999). When Angela said that she could not remember exactly what she stated in December, the following

exchange took place with Phillip's attorney:

Ms. Clayton: Okay. We have a transcript, transcribed, transcription of that hearing and you

said that you were four weeks pregnant in December, but, that was a lie; right?

Court: Ms. Clayton, please show her if you have it transcribed, please show her what the testimony -

Ms. Clayton: We don't have it transcribed,(4) but, did you tell her that?

Angela: I'm not sure.

(emphasis added).

¶21. Angela subsequently admitted that she lied to the court about her stage of pregnancy. Angela also

admitted she had lied when she had testified at the divorce proceeding that she was not sexually involved

with another man. As previously noted, Phillip had already known of her relationship for months before the

divorce was filed. From the record, these are the only times that Angela admitted having committed perjury,

though Phillip's attorney was able to cast serious doubts concerning Angela's veracity in several other

instances.

¶22. The chancellor, as the fact-finder in a domestic relations case, must decide who is telling the truth and

what weight to give to the testimony of someone who admits lying. Although we might have found differently

had we been in her shoes, it is not our place to substitute our judgment for that of the trial court, absent

manifest error or abuse of discretion.
CONCLUSION

¶23. The same chancellor heard all the testimony at all the hearings in this case. She was in the best position

to determine credibility and the materiality of any false statements. Her eight-page opinion addressed each

of the requests made by Phillip in his petition for modification. She granted modification as to Roshonda's

custody and the reduction in child support. She denied modification of custody of P.J. and alimony

payments. She applied the proper standard of review. We find no manifest error or abuse of discretion, and

thus we affirm the judgment.

¶24. AFFIRMED.

PITTMAN, C.J., SMITH, P.J., WALLER, DIAZ, CARLSON AND GRAVES, JJ.,

CONCUR. McRAE, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED

BY EASLEY, J.

McRAE, PRESIDING JUSTICE, DISSENTING:

¶25. I respectfully dissent to the majority's holding in this case. The actions and immoral lifestyle of

Atterberry clearly warrant a review of the chancery court's original finding which gave custody of the

parties' children to her.

¶26. We have held:

[r]egarding the substantive law to apply in child custody modification suits, the movant must prove by

a preponderance of the evidence that since the entry of the judgment or decree sought to be modified

there has been a material change in circumstances which adversely affects the welfare of the child.

Second, if such adverse change has been shown, the moving party must show by preponderance of

the evidence that the best interest of the child requires the change in custody.

Morrow v. Morrow, 591 So.2d 829, 833 (Miss. 1991) (citing Newsom v. Newsom, 557 So.2d 511,

515-16 (Miss.1990)). Additionally, this material change must be considered in the totality of the

circumstances. Tucker v. Tucker, 453 So.2d 1294, 1297 (Miss.1984); Kavanaugh v. Carraway, 435

So.2d 697, 700 (Miss.1983).

¶27. The totality of the circumstances shows that Mrs. Atterberry should not have custody of either of the

two children from her marriage to Mr. Mosley. Several incidents have come to light since the divorce which

should be considered:

1) Atterberry and the parties' minor son, P.J., lived with her boyfriend for a few months and she admitted

having sexual relations with him during this time;

2) Atterberry committed perjury by telling the chancellor at the divorce hearing that she and her boyfriend

were not in a relationship and not revealing the fact that she was four months pregnant;

3) Atterberry admitted to cheating on her 1998 and 1999 income taxes;

4) Atterberry committed credit card fraud by using her daughter's Social Security number to establish credit

in her own name; and
5) Atterberry was negligent in seeing that P.J. got to school. He was tardy sixty-nine times and had twelve

absences in one year.

6) Atterberry interfered with Mosley's visitation with P.J.

¶28. At the modification hearing, Atterberry admitted to each of these acts. The judge responded by

sentencing her to two days in jail for the perjury. In Pierce v. Heritage Props., Inc., 688 So.2d 1385

(Miss. 1997), we vacated a $500,000 judgment because Pierce committed perjury regarding to the facts

surrounding the incident that led to the award. Although the majority says Pierce has no bearing on this

case, I disagree. Atterberry's lies regarding her relationship with her boyfriend and the fact that she did not

advise the court of her pregnancy played a part in the chancellor's decision to award custody of the children

to her. Just like in Pierce, the lies affected the outcome of the case.

¶29. The chancellor also overlooked the fact that Atterberry had subjected P.J. to a living situation in which

extramarital sex took place because the living arrangements were for "a cost reducing situation." Although a

custodial parent's sexual relations with a third person outside of marriage do not, by themselves, warrant

modification of the child custody order, there are other factors to consider. Morrow, 591 So.2d at 833;

Phillips v. Phillips, 555 So.2d 698 (Miss. 1989). In addition to fornication, since her divorce Atterberry

has committed crimes and lied, all the while subjecting her young son to a lifestyle unfit for an upright

person, much less a child. That the majority now condones this type of action flies in the face of all

precedent. Even Atterberry's 18-year-old daughter refuses to follow the court order instructing her to live

with her mother because she does not want to live in the environment fostered by Atterberry.

¶30. The reasons for the chancellor's findings matter not in this instance, we should look to the facts. In

Ballard v. Ballard, 434 So.2d 1357, 1360 (Miss.1983), we held that only parental behavior that poses a

clear danger to the child's mental or emotional health can justify a custody change. I fail to understand how

a home-life like this can allow P.J.'s mental or emotional health to flourish. He misses entirely too much

school and is being taught by his mother that lying and promiscuity are acceptable, even normal. In addition

to the factors listed above, Atterberry moved at least three times in the year after the divorce and had as

many different jobs. Not only has there been an obvious change in circumstances since the chancellor

awarded custody of the children to Atterberry, it boggles the mind to think that anyone could believe it to

be in P.J.'s best interest to remain in her custody.

¶31. I would remand this case to the chancery court with instructions to review the custody situation.

EASLEY, J., JOINS THIS OPINION.

1. The question of the reimbursement of this child support was addressed by this Court in Mosley I, 784

So.2d at 910.

2. During examination as an adverse witness, when Angela was asked "When did you find out?", and after

answering "I don't recall," counsel for Phillip entered into evidence medical records from Northeast Georgia

Health System dated approximately one month after the divorce, showing that at that time, Angela was 18

weeks pregnant.

3. Although the chancellor did not specifically mention contempt of court when she ordered Angela

incarcerated for perjury, she went on to include, in the same two-day period of incarceration, Angela's

violations of UCCR 8.06, which were found to be contempt of court. Thus, we consider the perjury
incarceration to be in the nature of a finding of contempt of court.

4. The chancery court docket reflects that a Motion for Relief from Judgment was filed 11-19-99 and an

Amended Motion for Relief from Judgment was filed 12-10-99. However there is no mention in the docket

of a hearing on December 17, 1999, and Phillip's attorney admitted that no testimony was transcribed, plus

the record is devoid of any copies of such motions or orders following. Because Phillip, as appellant, was

responsible for providing the record for this Court and failed to include these important documents, and

Angela did not file a brief or any other documentation, we are unable to review this issue, and thus even

more must rely on the chancellor's findings.

We also note that it is troublesome that the attorney used this tactic, which it appears would have been

successful but for the chancellor's quick attention.