IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO. 2018-CA-00673-COA RANDI LYNN BUTLER APPELLANT

v. JOSEPH PARKER MOZ INGO APPELLEE DATE OF JUDGMENT: 04/05/2018 TRIAL JUDGE: HON. SUSAN RHEA SHELDON COURT FROM W HICH APPEALED: FORREST COUNTY CHANCERY COURT ATTORNEY FOR APPELLANT: PHILLIP LLOYD LONDEREE ATTORNEYS FOR APPELLEE: SHEILA HAVARD SMALLW OOD JOHN D. SMALLW OOD NATURE OF THE CASE: CIVIL - CUSTODY DISPOSITION: REVERSED AND RENDERED - 11/12/2019 MOTION FOR REHEARING FILED: MANDATE ISSUED: EN BANC. C. WILSON, J., FOR THE COURT: ¶1. This is a c hild-custody -m odif ication case. R andi Butler and Joseph Mozingo are the parents of R.M

. , a m i nor. 1 Butler appeals f rom the Forrest County Chancery Court’s judgm ent gran t i n g Mozingo’s r equest f or custody m odif

ication and f

or other relief

. To obtain a change in custody , Mozingo had t o prove by a preponderance of the evidence that “(1) a m aterial c hange of circum stances

. . . occurre d in the custodial hom e since the m ost
recent custody decree, ( 2) the change adversely af f ect[ ed] the child, and (3) the child’s best interests m andate[ d] a c hange in custody

. ” Butler v. Butler , 2 18 So. 3d 759, 762 ( ¶11) (Miss.

1 We u se in itials to p ro tect th e p riv acy o f th e m in o r in v o lv ed in th is m atter.Ct. App. 2017). Upon r eview, the chancellor did not err in f i nding t hat a m aterial change in circum stances occurred i n R .M.’s custodial hom e. B ut the c h a n c e l l o r’s de f acto determ ination that the change a d v e r s e l y af f ected R.M. is n ot supported by s u bstantial evidence in the r ecord. W e theref ore reverse a nd render the c hancery court’s o r d er

m odif y ing custody

. FACTS AND PROCEDURAL HISTORY ¶2. Although never m arried, Butler and Mozingo engaged i n a n intim ate relationship that resulted in the conception of R.M. Butler gave birth to R.M. i n July 2 014. On January 12, 2015, t h e c h ancery court entered an agreed o rder that adjudicated Mozingo a s the natural f ather of R.M., g ranted the parties joint legal custody o f R.M., g ranted phy sical custody and child support to Butler, and granted visitation to Mozingo. ¶3. A b o u t t w o y e a r s l a t er, on March 24, 2017, M ozingo f i led a com

plaint s e e k i n g

m odif ication of custody a nd f

or o ther relief

. In h is com

plaint, Mozingo alleged that there had been a substantial change in circum stances in Butler’s hom e since J anuary 2015 and that the change had an adverse i m pact on R .M. According to Mozingo, B u tler had m ade “num erous

m oves in the past two

. . . y ears due in part to her inability to m aintain gainf ul em ploy m ent.” Mozi n go also contended that Butler’s “actions over the past t wo y ears s how[ ed] poor judgm ent as well as poor parenting skills with regard t o t he health and wel f a r e o f [ R.M.]” Accordingly , Mozingo sought phy sical custody of R.M. and child support f rom Butler. ¶4. On Ap r i l 2 5 , 2 0 1 7 , the chancery court entered an agreed tem porary order f

or the parties to exchange phy sical custody of R.M. on a weekly basis during June and July 2017.

2On August 28, 2 0 1 7 , the chancery court entered a second agreed tem porary order f

or the parties to s hare joint l egal a nd phy sical custody of R.M. until f urther order of the court. On March 8, 2018, the chancery court held a t rial on M ozin g o ’ s com plaint. Butler, Mozingo, Mozingo’s m other, Mozingo’s girlf riend, and Butler’s sister-in-law t estif ied during the trial. ¶5. Butler’s testim ony revealed f iv e mo v e s t h a t entailed both dif f erent residences and living a r rangem ents, the b irth of a second child ( whose f ath e r p r o v i d e s Butler no child support), a d

river’s license suspension f or an unpaid traf

f i c violation, and an a r r e st f or a

m isdem eanor i ncident that occurred p rior to R.M.’s birth—all w ithin t h e t h r e e y ears since the chancery court entered the January 2015 agreed order. According to Butler’s testim ony , she f irst lived w ith her brother and his wif e. S he t hen m oved into her own apartm ent. Af ter that, she m oved into a larger hom e with her m o ther. N ext, she m oved in with a f riend and her f riend’s two children. And f inally , Butler m oved i nto a three-bedroom trailer, which she

was leasing to own f

rom her f riend Mandy Odom

. Butler testif ied that she had b een living in the trailer f

o r about a y e ar and that Odom was also l iving in the trailer until Odom f inished

rem odeling her house. ¶6. Mozingo testif

ied he should have phy sica l c u s tody of R .M. due to Butler’s lack of stability

. But he a lso stated that the week-on-week-of f schedule had worked well f or them and that he “personally [ did] n ot have a problem w ith the week on, week of f .” According
to Mozingo, R.M. has been in good health, and B u t l e r h a s done nothing to cause him to believe that she was being negligent or not taking care of R.M. ¶7. Mozingo’s m other likewise testif ied that the week-on-week-of f s chedule had worked

3well and that R.M. was in good health, “active[ ,] and bright.” Mozingo’s girlf riend testif

ied that Mozing o w anted p hy sical c ustody o f R.M. to provide him with stability

. Mozingo’s girlf riend agreed that Mozingo seem ed to be enjoy ing the week-on-week-of f schedule and
t h a t t h e schedule was “good.” Butler’s sister-in-law testif i ed that Butler i s a very good

m other and that the week-on-week-of f schedule had been working “okay .” ¶8. At the end of

the trial, the chancellor m ade an on-the-record f inding that there has been a m aterial change in c ircum s tances that has been adverse to the m inor c hild, nam e ly , [ R.M.], and that m aterial change in circum stances has to d o w i t h the f

ive dif f e rent residence[ s] and the lack of stability in [ Butler’ s ] household, that [ B u t l e r has] m oved f ive tim es since [ R.M.] was born. A nd he’s only three-and-a-half

y ears old. The chancellor went on to address the Al b r ight 2 f actors and ultim ately a warded phy sical custody to Mozingo. On April 2, 2018, the chancery court e ntered a judgm ent m o dif y ing custody . Sim ilar to the chancellor’s bench f i nding, the judgm ent stated that [ Butler]’s testim ony ref

lected t hat she and t h e mi nor child had m ade several m oves since the [ agreed order] was e ntered in January of 2015

. . . . Based on these m oves, the Court f inds that a ma t erial change in circum stances h as occurred in the hom e of

. . . Butl e r w h i c h h a s had an adverse ef f ect on the m inor child of

the parties. Aggrieved, Butler appealed. ¶9. On appeal, Butler contends that the chancellor erred in f inding a m aterial change in
t h e c u s t o dial hom e. According to Butler, Mozingo likewise did n ot establish an adverse ef f ect on R.M. at trial. Butler c ontends that, in f act, the undisputed evidence o f f ered at trial dem onstrated that the parties’ custody and visitation schedule was w orking well and had no

2 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 )

. 4ill ef

f ects on R.M. S TANDARD OF REVIEW ¶10. “The standard of review in child custody cases is lim ited. Reversal occurs only if a chancellor is m anif

estly wrong or applied an erroneous l egal standard.” Floyd v. F loyd , 949 So. 2d 2 6, 28 (¶5) (Miss. 2007). “ So l ong as there is substantial e vidence in t he record that, if f ound credible by the chancellor, would provide support f or the chancellor’s decision, this Court m ay not int e r cede sim ply to s ubstitute our collective opinion f o r that of the chancellor.” H

ammers v. Hammers , 890 So. 2d 944, 950 (¶14) ( M i s s . Ct. App. 2004) (quoting Bower v. Bower , 758 So. 2d 405, 412 (¶33) (Miss. 2000)). DISCUSSION ¶11. “To obtain a change in custody , the m oving party m ust prove by a preponderance of the evidence that ( 1) a m aterial change of circum stances has occurred in the custodial hom e since the m ost recent custody decree, (2) the c hange adversely af f e c ts the child, and (3) the child’s best interests m andate a change i n c u s tody .” Butler , 218 So. 3d at 762 (¶11). In weighing a petition f

o r m odif ication, “chancellors are charged with considering the ‘totality of the cir c u ms t a n c e s . ’ ” Giannaris v. Giannaris , 960 S o. 2d 462, 467 (¶10) ( Miss. 2007) (quoting Tucker v. Tucker , 453 So. 2d 1294, 1297 (Miss. 1 984)). “Bef o re custody should be changed, the chancellor should f ind that the overall c ircum stances in which a child lives have

m aterially changed a nd are likely to rem ain m aterially changed f or the f oreseeable fu t

u re and, of course, that such change adversely im pacts upon the child.” Id. (em phasis om i tted). ¶12. Viewing the record as a whole, substantial evidence supports the chancellor’s f inding

5that a m aterial change of c ircum stances occurred in R.M.’s custodial hom e. A s n oted by the

chancellor, Butler has m oved f ive tim es since R.M.’s birth. Generally , “the m e re m oving of the custodial parent does not constitute a m aterial change in circum stances f or c hild custody

m odif ication purposes.” W

elton v. W estmoreland , 180 So. 3d 738, 749 (¶34) (Miss. Ct. App. 2015) (quoting Giannaris , 960 So. 2d at 468 (¶11)). But “it is the ef f ect the m ove has on the child and t he custody arrangem ent that is dispositive.” Id

. (quoting Pearson v. P earson , 11 So. 3 d 1 7 8 , 1 8 2 ( ¶10) (Miss. Ct. App. 2009)). This Court has p reviously upheld a chancellor’s f

inding of m aterial change where m ultiple m oves are coupled with other evidence indicating a lack of stability

. Id

. at (¶35) (ref erencing t he “ considerable discretion” we af f ord chancellors). ¶13. In this case, Butler’s f ive m oves each e ntailed not only dif f erent residences but also

m aterially dif

f erent living arrangem ents. The chancellor d eterm ined “ t h e f i ve dif f erent residences and the l ack of stability in [ Butler’s] household” constituted a m aterial c hange in circum stances. (Em

phasis added). Reviewing the record, additional evidence of a “lack of stability in [ Butler’s] household” was a dduced at trial. For e x a mp l e , t h e chancellor noted that B utler “ does not have the f inancial resources to pay the f inancial obligations that were listed on her f

inancial statem ent.” And, since R.M.’s birth, Butler has had a s econd child f or whom she bears sole f

inancial responsibility because the child’s f a t her pay s no c hild support. Mindf ul of our l im i ted standard of re v i ew, we conclude that t he chancellor’s f inding of a

m aterial c h ange in R.M.’s c ustodial hom e is supported by substantial e vidence and theref ore is not m anif

estly wrong.

6¶14. Still, even w hen the record supports a f inding that a m aterial change in circum stances in the custodial h om e has occ u r r e d , the chancellor “m ust s eparately and af

f irm atively determ ine t h a t this change is one which adversely af f ects the child[ ].” Bredemeier v. Jackson , 689 So. 2d 770, 775 (M i s s . 1997). The change i n circum stances m ust “clearly posit[ ] or cause[ ] danger to the m ental or e m otional well-being o f [ t h e ] child

. . . .” Giannaris , 960 So. 2d at 4 68 (¶10) (quoting B allard v. Ballard , 434 So. 2 d 1357, 1360 (Miss. 1983)). Each of these f

i ndings—a m aterial change and adverse ef f ect on the child—is a condition precedent to reaching and re-weighing the Albright f actors. I d

. ( “ T h e Albright f actors m ay ebb a nd f

low y early , quarterly , m onthly o r eve n l e ss, but in the a bsence of a substantial adverse e f

f ect upon the child, phy sical custody changes are not only unwarranted, they are unwise.”). ¶15. As Butler p o i n t s o u t o n a p p e a l, the record reveals no “separate and af f irm ative determ ination,” supported by substantial evidence, of any adverse ef f ect on R.M. I n f

act, the evidence ad duced at trial runs counter to such a determ ination: Butler, Mozingo, and Mozingo’s m other all agreed that R.M. was in “ good health,” “active,” a nd “ b r i g h t

. ” Moreover, Mozingo “personally [ did] not have a problem with t h e w eek on, week of f ”
custo d y arrangem ent in place a t the tim e of trial; Mozingo’s g irlf riend agreed that the schedule was “ good”; and B utler’s sister-in-law testif ied that the schedule h ad been working “okay .” There was no proof that Butler was a negligent m other or f ailed to care f

or R.M. ¶16. In the f

a ce of this evidence, the chancery court’s f inding that “the lack o f stability in [ Butler’s] household, that [ Butler has] m oved f ive tim es si n c e [ R

. M

. ] was born,” while

7suf

f i cient to substantiate a m aterial change in the custodial hom e, does not in itself support

a f inding of a dverse ef

f ect on R.M. Absent an “ af f irm ative determ ination” o f adverse ef f ect, the chancery co u rt’s re-application of the Albright f actors was at best prem ature, and the chancery court’s m odif

ication of custody was m anif

estly in error. ¶17. Nor is this the “occasional” or “rare” c ase, as Mozingo u rges on appeal, that would

war r ant a change in custody “ even without a specif i c f inding t hat s uch environm ent has

a dversely af

f e cted the child’s welf

are.” Riley v
. Doerner , 677 So. 2d 740, 744- 4 5 ( M i s s . 1996) (af f irm ing m odif

ication of custody

where custodial hom e was site of dangerous and illegal b e havior, including drug u s e). In Riley , o ur suprem e c ourt m ade clear that the test f or custody m odif

ication “need not be applied so rigidly , nor in such a f orm alistic m a nner so as
to preclude the chancellor f rom rendering a decision appropriate to the f acts of an individual case.” Id. But the Riley c ou r t a l s o ma d e clear that “in m ost cases, a straightf orward application of

the test f or custody

m odif ication—that is, starting w ith the requirem ent o f a showing of a m aterial change in circum stances, adversely af f e cting t he c hild’s welf

are—will result in a decision consistent with the best interests of the child.” Id. at 745. This case, on the record bef

o r e us, f a lls within that general rule. W e accordingly reverse a nd r e nder the chancery court’s judgm ent m odif

y ing custody

. CONCLUSION ¶18. Although the c hancery c ourt’s f inding of a m aterial change in R.M.’s custodial hom e is s u pported b y substantial e vidence, the court’s “f inding” o f a resulting a dverse ef f ect on R.M. is not. Accordingly , the m odif ica tion of custody w as m anif estly in error. The

8judgm ent of the chancery

court is theref

ore reversed and rendered. ¶19. REVERSED AND RENDERED. BARNES, C.J., AND CARLTON, P.J., CONCUR. J. WILSON, P.J., AND TINDELL, J., CONCUR IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION. McDONALD, LAWRENCE A ND McCARTY, JJ., CONCUR IN PART AND DISSENT IN PART WITHOUT SEPARATE WRITTEN OPINION. GREENLEE, J., CONCURS IN PART AND DISSENTS I N P ART W ITH SEPARATE WRITTEN OPINION, JOINED B Y L A W R E N C E , J . WESTBROOKS, J., CONCURS IN PART AND DISSENTS IN PART WITH S EPARATE WRI T T E N OPINION, JOINED BY McDONALD AND McCARTY, JJ.; TINDELL, J., JOINS IN PART. GREENLEE, J., CONCURRING IN PART AND DISSENTING IN PART: ¶20. I concur with the m ajori t y t h a t t h e r e i s s u b s t a n t i a l e v i d e n c e supporting the

c h a n c e llor’s f

i nding that a m aterial change of c ircum stances occurred in R .M.’s custodial hom e. H owever, I believe this case should be r eversed and rem anded to allow the chancellor
to m ake a d eterm ination as to whether the m aterial change a dversely a f f e cted R.M.’s welf

are. ¶21. “Due to the chancellor’s actual presence in the courtroom , [ she] is best equipped to listen t o the witnesses, observe their dem eanor, and determ ine their credibility

. ” Wi k e l v
. Miller , 53 So. 3d 29, 3 4 (¶12) (Miss. Ct. App. 2 010) (citing Minter v. Minter , 29 So. 3d 840, 850 ( ¶ 3 6 ) ( M i ss. C t. App. 2009)). Since the chancellor is i n the best position t o hear and rule, it is not this Court’s province to “substitute our judgm e nt f or the chancellor’s, ‘even if

we disagree with the f

indings of f

a ct and would arrive at a dif f erent conclusion.’” James v. James , 135 So. 3d 188, 191 ( ¶10) (Miss. Ct. App. 2 013) (citing W i lson v. W ilson , 79 So. 3d 551, 560 (¶37) (Miss. Ct. App. 2012)). Theref ore, I would reverse and rem and this case f or f urther proceedings. LAWRENCE, J., JOINS THIS OPINION.

9WESTBROOKS, J., CONCURRING IN PART AND DISSENTING I N PART:

¶22. I a gree with the m ajority ’s im plied f inding that there was n o e vidence s howing an y adverse ef

f ect a nd would a lso reverse and r ender the c h ancellor’s m o dif ication of R.M.’s custody , but reviewing a

pplicable precedent, Butler’s relocations did not c o n s t i t u t e a m a t e r ial change. Theref

o re, I concur in part and respectf ully dissent in part. ¶23. “In cases involving c hild-cus t o d y m o d i fi c a t i on, this C ourt w ill n ot d isturb the f indings of the c h ancellor unless the chancellor was m anif e s tl y w r ong, was c learly erroneous, or applied an erroneous legal standard.” Bryant v. Bryant , 105 So. 3 d 1146, 1149 (¶13) (Miss. Ct. A pp. 2012) (citing W

hite v. W hite , 26 So. 3 d 342, 346 (¶10) (Miss. 2010). “[ W ]e will not

r e v e rse where the chancellor’s f indings are supported by substantial c redible e videnc e . ” Jones v. Jones , 878 So. 2d 1061, 1064 (¶4) (Miss. Ct. App. 2004). ¶24. In d irect contradiction with the chan c e l l o r ’ s f inding, Mississippi’s appellate courts have “repeatedly held that the m ere m oving of the custodial parent does not constitute a

m aterial change in circum stances f or child custody m o d i f

i cation purposes.” Giannaris v. Giannaris , 960 S o. 2d 462, 468 (¶11) (Miss. 2 0 0 7 ) ; s e e a lso Powell v. Powell , 976 So. 2d 358, 362 (¶16) (Miss. C t. App. 2 008) (holding that “relocation of the custodial parent does
not alone constitute a m aterial c hange in c ircum stances” ( em phasis added)); Cooley v. Cooley , 5 7 4 So. 2d 694, 695-96, 699 (Miss. 1991) (f inding that a l though t he m o ther and children r esided in f

ive dif f erent cities over a f

o ur- y e ar p eriod and had crossed m ultiple state and i n ternational borders, there was not suf f icient e vidence t o support the chancellor’s f inding that a m aterial change had occurred), overruled o n other grounds by Powell v.

1 0Powell , 644 So. 2d 269, 274 (Miss. 1994).

¶25. In the case bef

ore us, the chancellor’s order, in pertinent part, stated that Randi’s testim ony ref

lected that she and the m i nor child m ade s e veral m oves s i n c e the Agreed Order was entered in January of 2015, i ncluding th e f o l l o w i n g : [ 1] w ith her b rother, Justin Butler

. . . ; [ 2] an apartm ent [ on her own]; [ 3] a h om e with her m other

. . . ; [ 4 ] with a r oom m ate and her children . . . ; and currently

at [ 5 ] with Mandy Odom . . . . Based on these m oves, the [ c]ourt f inds that a m a terial change in circum stances h as o ccurred i n the hom e of Randi Butler which has had a n a dv e r s e e f f e c t on the m inor c hild of the parties. The m ajority attem

pts to insert f

urther con s i d e rations into the chancellor’s r easoning regarding Butler’s m o v e s , b ut her relocations served a s the only basis of support f or the chancellor’s f

indings in the record. ¶26. The m ajority opinion cites W elton , 180 S o. 3d at 749 (¶34), where t his Court held that “the m e re m oving of th e c u s todial parent does n ot constitute a m aterial change in circum stances f

or child c ustody m odif

ication p urposes” but upheld the chancellor’s custody

m odif ication because the m oves w ere coalesced w ith ot her evidence. I d. at (¶35). Unlike the court here, the chancello r i n W elton considered “ m ore than j ust Sabrina [ W elton’s] relocation in his ruling.” Id

. Hardly com parable to the f

acts involved in this case, W elton exhibited num erous and blatant signs of instability

. Id. At the tim e of the t rial, W elton was residing with her then f

iancé, Darren (whom she m et on the Internet )

. I d

. On at least one occasion, Darren had kicked W elton and h er children o ut of t he hom e f ollowing an a rgum ent. Id. For a tim e, both she and her children were rendered hom eless by Darren’s actions. Id. W e lton’s children testif

ied that the m oves, living arrangem ents, and arguing between their

m other and her partner had been both stressf ul and f rightening. Id. P erhaps t he m ost notable

1 1distinction f rom the case at bar is that the m other in W e lton m ade various m oves because she

was unable “to provide any stable living arrang e m ents f or the m inor children” due to “erratic” e m

ploy m ent and ultim ately ended up in a h om e “in which s he had no legal right to stay .” Id. at 748-49 (¶¶33, 35). ¶27. “W hether a m a terial change has occurred depends on t he totality of t he circum stances. Eve nts (i.e., m o ving), which would not, alone, be a suf f icient m aterial c hange, m ay in

com bination p rovide a basis f or m odif y ing custody .” Deborah H

. Bell, B ell on M ississippi Family Law § 12.11[ 5][ a], 396 (2d ed. 2011) (citin g D u k e v
. Elmore , 956 So. 2d 244, 251 (¶19) (Miss. Ct. App. 2006); Hill v. Hill , 942 So. 2d 207, 211 ( ¶16) (Miss. C t. App. 2006)). To m eet the threshold, “[ t]he m aterial change m ust present a genuine danger t o the child” and “[ c]onduct that would weigh against a p a r e n t in a n original custody d ecision does not necessarily justif

y custody m odif

ication.” Id. (citing Lorenz v. Strait , 987 So. 2d 427, 430-34 (¶¶14-38) (Miss. 2 008) (f inding that a f

ather’s d rinking and DUI did not evince a m aterial change despite the m other’s testim ony that the f a ther d rank heavily becau se no harm or danger to the child was shown, and the f ather was in substance-abuse counseling)). ¶28. Here, there is no other evidence to show a m aterial change occurred. Cf. W elton , 180 So. 3d at 749 (¶34). In support of the chan c e l l o r ’ s f inding, the m ajority r ef

erences inconsistencies in Butler’s Rule 8.05 f inancial statem e nt as e v idence of inadequate f inancial

resources. W h en questioned about the statem ent, Butler readily testif ied about om itted cash savings and the variances in her m onthly incom e and expenditures. 3 No attem pts were m ade

3 B u tler t estif

ied th at sh e w o rk ed p art tim e f o r a clean i n g serv ice an d w as p aid in cash

. 1 2to conceal the assets a t trial and it was evident during Butler’s testim ony that s he m ade som e

m istakes in her attem

pt to com

p lete the f

orm . 4 Miscalculations on Butler’s Rule 8.05 disclosure would hardly render her m oves a m a terial change and were not noted as support f or the chancellor’s f

indings or in any r e levant precedent; sim ilar inconsistencies were also noted in Mozingo’s Rule 8.05 disclosure. ¶29. The m ajority points to the birth of Butler’s second c h ild as a n attendant circum stance
to render the m oves a m aterial change, citing Butler’s decision to a c t a s the sole provider f or

an additional c hild as i ndication of a “lack of s tability .” This a s sertion is not recited in the chancellor’s order. It is also unsupported by any legal authority and c ontradicts t he testim ony presented in the m ajority opinion’s sum m ary of the f acts. Mozingo, Mozingo’s m other, and Mozingo’s girlf

riend testif

ied that R.M. was in “good health,” and that Butler “ h a d done nothing to cause [ M ozingo] to believe that she was being negligent o r n o t t a k ing care of R.M.” No one, including the chancellor, c ited Butler’s second child as an indication that she

was unstable or experiencing notable dif f iculty providing and caring f or e i t h er of her children. ¶30. Butler’s decision to conceive, k eep, and c a r e f o r a s e c o n d child is just that—her decision. W hile the choice m ay not align with the personal a n d/or religious convictions of

som e people, the law does not render it necessarily wrong or provide f or it to s erve as a basis
to establish a m aterial change with regard to c ustody m odif ication. The f

act that t he f

ather

4 D u rin g B u t l e r ’ s testim o n y , trial co u n sel clarif ied a m istak e in B u tler’s R u le 8 .0 5 d isclo s u r e . In ten d in g to rep o rt an an n u al in co m e o f $ 1 0 , 5 0 0 , B u t ler m isstated th e am o u n t as m o n th l y

in co m e. 1 3of Butler’s second c hild d oes not f inancially support Butler could just as easily be c onstrued

as evidence o f her m a turity given the allegations surrounding his f itness as a parent. Nevertheless, by all indications, Butler put both her children f irst a nd worked to m aintain a saf e and loving environm ent. ¶31. Obviously distinguishable f rom W elton , Butler’s m oves, a ll of her own accord , never lef t her f am i ly destitute. Instead, Butler’s transitions seem ingly sign i f i e d attem pts toward greater independence and stability f or her and her children. Initially , Butler lived with her b r o t h er, his wif

e, and their c hildren. Af

ter the birth of R.M., Butler m oved into a m odest apartm ent to establis h a residence of her own. T h e record indicates Butler converted to a larger accom m o dation, w hich was owned by t he sam e landlord, when her m other m oved in with her a n d R.M. Following her m other’s departure, Butler determ ined it w as m ore

econom ical to share a hom e with her f riend, who was also a m other of two sm all children. Butler and h er c hildren r e ma i n e d t h e re until m oving into their current residence, which happens to b e owned b y Mandy Odom

. At trial, Butler subm itted a receipt f or t he $4,000 down pay m ent she paid toward the p urchase o f the hom e; Butler entered a r ent-to-own
agreem ent to p urchase the p roperty f rom Odom

. The purchase e vinces a perm anent residence f o r B u t l e r and h er c hildren f or the f oreseeable f

uture and rem edies any potential m ateria l change that m ight have arisen f r om the relocations. ¶32. In contrast, u

pon his return f

rom school, Mozingo m oved into a re s i d e n c e o n his f am ily ’s property

. Like W elton, Mozingo adm ittedly has n o legal ownership interest in the property and lives there by

the grace of his p arents. Even without the benef i t or assistance

1 4of reliable parents, Butler m aintained s table em p loy m ent and worked qui c k l y a nd actively
to m ove her f

am ily f orward. ¶33. To af

f irm the chancellor’s f

inding of a m aterial change b a s e d s o l e l y o n Butler’s relocations would reconstrue Mississippi law. Absent additional f a ctors, the m oves sim

ply do not constitute a m aterial c hange. “W e close our ey es to the real world if we ignore that

ours is a m obile society

. Opportunity and econom ic necessity transport perf ectly responsible adults

. . . f

rom their h om es” to m ore suitable and d es i r a b le accom m odations. Spain v. Holland , 483 So. 2d 318, 3 21 (Miss. 1986). The m ajority ’s f inding would penalize Butler f or att a i n i ng growth and advancem ent a nd thereby b e counterproductive to the law and its
purpose. ¶34. Accordingly , I would f ind that Butler’s relocations d id n o t c o n s t i t u t e a m aterial change; thus, the chance l l o r d i d not satisf y even the f

irst prong o f t he a

pplicable custody

m odif ication a naly sis. Neither the chancellor’s order nor the record provide any additional basis to support the f

inding, which was clearly erroneous and m anif

estly wrong. For these reasons, I concur in part and respectf ully dissent in part. McDONALD AND McCARTY, JJ., JOIN THIS OPINION. TINDELL, J., JOINS THIS OPINION IN PART.

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