IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO. 2016-CA-01475-COA TRACEY CAROL GADDIS APPELLANT

v. BENNIE RICHARD WILKERSON, JR. APPELLEE DATE OF JUDGMENT: 10/06/2016 TRIAL JUDGE: HON. J. LARRY BUFFINGTON COURT FROM W HICH APPEALED: SCOTT COUNTY CHANCERY COURT ATTORNEY FOR APPELLANT: W I LSON H. CARROLL ATTORNEY FOR APPELLEE: JAMES F. NOBLE III NATURE OF THE CASE: CIVIL - DOMESTIC RELATIONS DISPOSITION: AFFIRMED: 01/09/2018 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE LEE, C.J., FAIR AND GREENLEE, JJ. FAIR, J., FOR THE COURT: ¶1. This appeal involves the narrow issue of c u s t o d y - s c h e d u le m odif ication. Richard W i lkerson originally sought to rem ove custody of his son f rom his ex-wif

e, Tracey Gaddis, but the chancellor increased his custody tim e i nstead. T racey appealed. Af ter caref ul review, we f ind the chancellor’s decision was supported b y substantial evidence. Accordingly , we af f irm

. FACTS ¶2. Richard and Tracey m arried in 2002. They had one child t o g e t h e r – Logan 1 – born in 2 005. T he parties divorced in 2008 o n t he ground of i r r e c o n c i l a ble dif f erences. In the

1 We u se a f

i ctitio u s n am e f

o r th e m in o r to p ro tect h i s id en tity

.child custody a n d p r o p e r t y s e t t l em ent agreem ent, Richard and Tracey were granted joint legal and phy sical custody of their s on, with detailed periods of custody

. The chancellor granted Tracey custody during t he weekday s, except f or Tuesday f

rom 3 p.m . to 8 p.m , when Logan would be with Richard. The agr e e me n t a l s o stated that Richard would have Logan every other weekend and a t the opening o f d e e r season, beginning at age f ive. Finally , the
agreem ent divided holiday s and special occasions between the parties. ¶3. In 2013, Richard and Tracey entered into their m ost r ecent agreem e nt am ending their preceding child c ustody and property settlem ent agreem ents, all of which have consistently af f irm ed that their custody i s b oth joint legal and joint phy sical. The m o d i f i e d a g r eem ent granted Richard and Tracey equal tim e with Logan during the sum m er on a week-on, weekof f basis

. The agreem e nt f urther stated that Richard w ould have Logan e very other W e dnesday f

rom 5:30-7:30 p.m . (f

or church services a nd related activities) a n d every f irst, third, a nd f

if th weekend, f

rom Thursday

af t er school until the f

ollowing Monday

. And the
agreem ent provided a dditional details to Richard a n d Tracey ’ s holiday and special occasion schedules. ¶4. On April 6, 2016, Richard f iled a petition to m o dif

y the am e nded child custody and property settlem ent agreem ent. Richard sought sole p hy sical custody , claim ing a m aterial change in circum s tances had o ccurred that adversely af f ected Logan. I n the alternative, he sought equal tim e with Logan on a y ear-round basis during the s chool y ear. Tracey f iled a

m otion to dism i ss, which the court denied.

2¶5. The c ourt held a hearing on Richard’s petition. Both R ichard and Tracey testif ied, and Logan was i n t e r v i e w e d in the chancellor’s cham bers – of f the record but with the court reporter present. At the conclusion of the hearing, the c hancellor determ ined that t here was

no m aterial change in circum stances warranting a change of c ustody

. So he denied R ichard’s request f o r sole phy sical custody

. He also d enied Richard’s alternative request f or equal t im e during the school y ear. However, the chancellor f o und m odif

ication of the custodial periods

was in t he best interest of the child, noting that the custodial periods were “in the nature of

a visitation schedule.” He changed R i c h a rd’s alternating W ednesday evening custodial periods, p rovided to e nd at 8 p.m ., to overnight. H e also directed that spring break would be divided, with alternating f our and three day periods f or e ach of the parents. The chancellor also f ound that Tracey

should be allowed t o see Logan on his b irthday , if the b irthday f alls within Richard’s custodial period. STANDARD OF REVIEW ¶6. Our review of dom estic r elations m atters is lim ited. Chesney v. Chesney , 849 So. 2d 860, 862 ( ¶8) (Miss. 2002) (citing Montgomery v. Montgomery , 759 S o. 2 d 1238, 1240 (¶5) (Miss. 2000)). The chancellor’s f indings of f

act w ill not b e disturbed on appeal if they are supported by substantial cred i b le evidence. Carter v. Carter , 2 04 So. 3d 747, 756 (¶37) (Miss. 2 016) (citing M

arascalco v. Marascalco , 445 So. 2d 1380, 1382 (Miss. 1984)). W e will not reverse the decision of a c h a n c e r y c ourt unless the chancellor abused his or her discretion, w as m a nif

e stly i n error, or applied an erroneous legal standard

. D u p r e e v.

3Pafford , 200 So. 3 d 1092, 1094 (¶4) (Miss. Ct. App. 2016) (citing Pearson v. Pearson , 121

So. 3d 266, 268 (¶6) (Miss. Ct. App. 2013)). DISCUSSION ¶7. Richard and Tracey have shared joint legal and p hy sical custody of Logan since the original divorce decree. J oint p hy sical custody does not require equal tim e with each parent, but it does require that the parents have “signif icant periods of phy sical custody

. . . to assure

a child o f f

requent and continuing contact with both p a r e n t s . ” Miss. Code Ann. § 93-5- 24(5)(c) (Rev. 2013). ¶8. Tracey contends that the chancellor erred when he m odif ied the schedule w ithin the custody agreem ent. At trial and on a ppeal, both parties have incorrectly stated that Tracey has prim ary phy s ical custody of Logan and that Richard h as visitation. The original custody
agreem ent, the 2013 m odif ied custody agreem ent, and the a ppealed 2 016 m odif

ied custody
agreem ent all state that Tracey and Ri c hard are both c u stodial parents – an im portant distinction f

or Richard. Neither party is c ategorized as having “prim ary phy sical custody ,”

nor is either party award e d v i s i tation. Further our suprem e court has em phasized that the
term “prim ary phy sical custody ” is not specif ied in section 93-5-24 a n d “ c a n n ot act to transf orm such express ‘ joint p h y s i c a l custody ’ into de f acto sole phy sical custody with liberal visitation.” Porter v. Porter , 23 So. 3d 438, 446-47 (¶22) (Miss. 2009). ¶9. Still, we agree with the chancellor that a custody s chedule has the characteristics of

a visitation schedule. To m odif y a v isitation s chedule, “it m ust be shown that the prior

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or reasonable visitation is not working and t hat a m odif ication is in the best interest of the child.” H.L.S. v. R.S.R. , 949 So. 2d 794, 798 (¶9) ( Miss. Ct. App. 2006) (quoting Ellis

v. E llis , 8 4 0 S o . 2 d 8 0 6, 812 (¶25) (Miss. Ct. A pp. 2003)). “ The chancellor has broad discretion to determ ine the specif ic tim es f o r visitation.” Id

. (citing Haddon v. Haddon , 806 So. 2d 1017, 1020 (¶12) (Miss. 2000)). ¶10. In his bench r

uling, the c hancellor noted that he took all testim ony and other evidence i n to consideration. T he c hancellor f irst e xtended Richard’s alternating W ednesday s to overnight stay s . On those W ednesday nights, R ichard takes Logan to church. The chancellor reasoned that overnight stay s are m ore b enef icial s ince, af

ter the church s e r v i c e , “ all the child’s doing is com ing hom e and going to b ed. I m ean, h e doesn’t have tim e to do any thing

e l s e , s o t h e r e ’ s no reason to m ake an exchange at 8:00 a t night or 8 :30

. . . .” He f urthe r reasoned that o vernight stay s would result in less hostility between Richard a nd Tracey , since they of ten argued about whether Richard brought L ogan back to Tracey ’s house on tim e. The chancellor also granted Richard c ustody during half of Logan’s spring break. He noted that spring break was the only holiday m i ssing f rom the past two agreem ents. ¶11. W e f

ind t h e c h a n cellor’s m inor changes to the custody schedule supported by the record. F urther, t he c hancellor’s decision to award Richar d half of Logan’s spring break served the purpose of joint custody – to award each custodial parent equal a nd “signif icant periods of

phy sical custody .” Miss. Code Ann. § 93-5-24 (Rev. 2013). ¶12. W e also address Richard’s argum ent on a ppeal that the chancellor’s judgm ent is not

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inal, appealable j udgm ent under Mississippi Rule o f Civil Procedure 54(b). Generally , a f inal judgm e n t i s one that adjudicates the m erits of the controversy and settles all issues between all parties. Miss. W aste of Hancock Cty. I

nc. v Bd. of S

up’rs of H ancock Cty. , 818 So. 2d 326, 330 (¶8) ( Miss. 2001) (citing Sanford v
. Bd. of Sup’rs, Covington C ty. , 421 So. 2d 4 8 8, 491 (Miss. 1982)). I n other words, “ [ a]n o r d e r i s considered f inal if it ends the litigation on the m e rits a nd l eaves nothing f or the court to do b u t e x e c ute t he j udgm ent.” Banks v. City Fin. C

o. , 825 So. 2d 642, 645 (¶10) (Miss

. 2 0 0 2 ) ( c i ting C atlin v. United States , 324 U .S. 229, 2 33 (1945)), overruled on other grounds by Sawyers v. Herrin-Gear Chevrolet Co. , 26 So. 3d 1026 (Miss. 2010). Here, because the chancellor adjudicated the

m erits of Richard’s petition and settled all issues between Richard and Tracey , we f ind the appealed judgm ent is indeed a f inal judgm ent. ¶13. AFFIRMED. LEE, C .J., I RVING AND G R I F F IS, P.JJ., B ARNES, CARLTON, WILSON, GREENLEE, WESTBROOKS AND TINDELL, JJ., CONCUR.

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