                           IN THE SUPREME COURT OF MISSISSIPPI

                                        NO. 2002-CA-00726-SCT

JULIA GATES HINES MABUS

v.

RAYMOND EDWIN MABUS, JR.


DATE OF JUDGMENT:                                  02/28/2002
TRIAL JUDGE:                                       HON. STUART ROBINSON
COURT FROM WHICH APPEALED:                         HINDS COUNTY CHANCERY COURT
ATTORNEYS FOR APPELLANT:                           M. JUDITH BARNETT
                                                   SHARON PATTERSON THIBODEAUX
ATTORNEYS FOR APPELLEE:                            RICHARD C. ROBERTS, III
                                                   ROBERT W. KING
NATURE OF THE CASE:                                CIVIL - CUSTODY
DISPOSITION:                                       AFFIRMED - 06/05/2003
MOTION FOR REHEARING FILED:
MANDATE ISSUED:



        BEFORE SMITH, P.J., CARLSON AND GRAVES, JJ.

        CARLSON, JUSTICE, FOR THE COURT:

¶1.     Aggrieved by the chancellor’s denial of both her motion to modify custody and her petition for

rehearing, Julia Gates Hines Mabus (Julie) appeals to this Court arguing that the chancellor erred in failing

to grant her joint legal custody of her two minor children. Because the chancellor was correct in finding Julie

did not meet her burden of proving a material change in circumstances in the custodial home subsequent

to the chancellor's last ruling, we affirm the judgment of the Chancery Court of the First Judicial District of

Hinds County.
                     FACTS AND PROCEEDINGS IN THE TRIAL COURT

¶2.     Raymond Edwin Mabus, Jr. (Ray) was granted a divorce from Julie Mabus on the ground of

adultery on March 24, 2000. Pursuant to an order which had bifurcated the proceedings, the chancery

court tried the remaining issues, including the issue involving child custody. On August 8, 2000, the

chancellor entered a judgment awarding legal custody of the parties' minor children to Ray and awarding

alternating periods of physical custody to the parties pursuant to a detailed schedule set forth in the

judgment.

¶3.     Julie appealed the chancellor's judgment regarding custody of the children. The ruling of the

chancellor was affirmed by this Court. Mabus v. Mabus, No. 2001-CA-00381-SCT, 2003 WL

327669 (Miss. Feb. 13, 2003) (Mabus I).

¶4.     On May 11, 2001, while Mabus I was pending on appeal to this Court, Julie filed in the trial court

a Motion for Modification requesting that she be awarded sole legal and physical custody of the minor

children, or in the alternative, joint legal custody and sole physical custody. On May 24, 2001, Julie filed

her Amended Motion for Modification, and on January 21, 2002, Julie filed her Second Amended Petition

for Citation of Contempt and Modification of Former Judgment. In her Second Amended Motion, Julie set

forth seventeen (17) allegations which she asserted supported her request for modification of legal and

physical custody of the children. Ray filed his Response to Plaintiff's Second Amended Petition for Citation

for Contempt and Modification of Former Judgment along with his Counter Petition for Modification of

Former Judgment, Counter Petition for Citation for Contempt and Motion for Clarification on February

14, 2002.

¶5.     A hearing was conducted on February 25 and 26, 2002, regarding Julie's motion to modify

custody, Chancellor Stuart Robinson, presiding. A number of witnesses were called by Julie, including

                                                     2
Elisabeth and Annie, the minor children of the parties, and Ray, adversely. At the conclusion of Julie's case

in chief, Chancellor Robinson granted Ray's Miss. R. Civ. P. 41(b) motion to dismiss. The order was

entered February 28, 2002.

¶6.       Following the dismissal of Julie's Motion for Modification and Petition for Citation for Contempt,1

and prior to proceeding on Ray's Motion for Modification, the chancellor granted a recess to determine

if the parties could agree to Ray's proposed modification of the periods of physical custody of the children

from alternating six month periods to alternating calendar months. After the chancellor was informed that

the parties had evidently agreed on Ray's proposed modified joint physical custody schedule, the agreed

schedule was marked as an exhibit to the proceeding. The hearing was recessed and reconvened on

February 28, 2002; however, by that time Julie had evidently changed her mind. Notwithstanding the fact

that the proposed order was signed by neither Julie nor her attorney of record, the chancellor nevertheless

entered an order adopting the modified joint physical custody schedule which had previously been

supposedly agreed to by Ray and Julie and marked as an exhibit. Julie moved to withdraw the former

agreement, alleging that she was distraught by the chancellor's previous ruling dismissing her motion, and

therefore, immediately after the chancellor’s dismissal of her motion, she was incapable of fully

understanding the proposed modified physical custody schedule which was presented to her for

consideration. Julie requested that the chancellor hear testimony regarding the proposed modification before

he entered the order. After concluding that he had heard sufficient testimony during the hearing and finding

that the proposed modification was agreed upon and accepted in open court, the chancellor denied Julie's

motion.



          1
         Although Julie's Petition for Citation of Contempt was denied by the chancellor, she is not
presenting that ruling for review in this appeal.

                                                      3
¶7.     On March 11, 2002, M. Judith Barnett entered her appearance as Julie's new attorney and

contemporaneously filed a Petition for Rehearing on the Motion for Modification of Custody and entry of

the Agreed Order regarding periods of physical custody of the children. On April 11, 2002, the Petition

for Rehearing was argued before the chancellor. On April 18, 2002, the chancellor entered an order

denying the petition, and Julie filed a timely appeal from that order entered.

                                             DISCUSSION

¶8.     In a case disputing child custody, the chancellor's findings will not be reversed unless manifestly

wrong, clearly erroneous, or the proper legal standard was not applied. Hensarling v. Hensarling, 824

So.2d 583, 587 (Miss. 2002). See also Wright v. Stanley, 700 So.2d 274, 280 (Miss. 1997);

Williams v. Williams, 656 So.2d 325, 330 (Miss. 1995). The burden of proof is on the movant to

show by a preponderance of the evidence that a material change in circumstances has occurred in the

custodial home. Riley v. Doerner, 677 So.2d 740, 743 (Miss. 1996).

        In the ordinary modification proceeding, the non-custodial party must prove: (1) that a
        substantial change in circumstances has transpired since issuance of the custody decree;
        (2) that this change adversely affects the child's welfare; and (3) that the child's best
        interests mandate a change of custody. Bubac v. Boston, 600 So.2d 951, 955 (Miss.
        1992).
                                                   ***
        In considering whether there has been such a change in circumstances, the totality of the
        circumstances should be considered. [Spain v. Holland, 483 So.2d 318, 320 (Miss.
        1986).] Even though under the totality of the circumstances a change has occurred, the
        court must separately and affirmatively determine that this change is one which adversely
        affects the children. Id.

Bredemeier v. Jackson, 689 So.2d 770, 775 (Miss. 1997). Furthermore, it is well settled that the

polestar consideration in any child custody matter is the best interest and welfare of the child. Albright

v. Albright, 437 So.2d 1003, 1005 (Miss. 1983).



                                                     4
¶9.     As Ray correctly asserts, Julie's brief did not include a statement of issues. However, Julie did list

the following issue within her argument section:

        The lower court erred in failing to grant appellee [sic] joint legal custody of her
        minor children when awarding her joint physical custody on the grounds that to do
        so without a finding of unfitness her [sic] fundamental right to parent her children
        has been violated.

¶10.    Julie's main contention which she brings before this Court is that by awarding joint physical custody

of their minor children, the chancellor deemed Julie to be a fit person; therefore, the chancellor should be

estopped from denying her joint legal custody of the children. Julie further contends that the only reason

she was not granted joint legal custody of the children was because the means of communication between

the parties were unacceptable by the chancellor.2

¶11.    Ray argues that according to Julie's notice of appeal, the only two issues which may be raised in

this appeal are the issues presented in the Petition for Rehearing which were (1) the Agreed Order entered

on February 28, 2002, was not signed by Julie or her counsel of record and (2) the testimony presented

at the hearing created a material change in circumstances in the custodial home which is adverse to the

children since the entry of the last order. Ray contends because these two issues are not argued and are

not supported by authority, the issues must be considered abandoned and waived.

¶12.    Ray contends that rather than address the issues presented for review in her notice of appeal, Julie

attempts a constitutional challenge of the statute which grants chancellors the authority to award legal

custody of children solely to one parent while awarding significant periods of shared physical custody of

children to both parents. Ray argues this constitutional challenge is barred by Julie's failure to raise this issue




        2
         Julie and Ray communicate with each other only by facsimile or handwritten notes.

                                                        5
in a pleading in chancery court, to give notice to the Attorney General pursuant to Miss. R. Civ. P. 24(d),

and to serve a copy of her brief on the Attorney General pursuant to M.R.A.P. 44.

¶13.    Ray asserts the arguments advanced by Julie on this appeal are directed to the original judgment

entered by the chancellor awarding Ray sole legal custody of the couple’s minor children and shared

physical custody of the children. Ray contends Julie's arguments do not address the issues which were

presented to and decided by the chancellor on her motion for modification.

¶14.    Addressing the merits of Julie's issue, without abandoning his procedural arguments, Ray argues

that it is not the law in Mississippi that a chancellor must award joint child custody unless it finds the non-

custodial parent to be unfit.

¶15.    Because Julie argued to the chancellor on her motion for rehearing this same issue of the

chancellor’s purported error in failing to award her joint legal custody of the children, she has preserved

this issue for appeal. Therefore, we will address the issue on the merits.

¶16.    Julie's brief solely addresses whether the chancellor erred in failing to grant her joint legal custody

of the children while on the other hand granting her joint physical custody. Julie citesTroxel v. Granville,

530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000), and Stanley v. Illinois, 405 U.S. 645, 92 S.Ct.

1208, 31 L.Ed.2d 551 (1972), as authority for her argument that as a natural parent she has the right to

parent her children and must be deemed unfit before she is denied custody. However, Troxel (natural

parent v. grandparent) and Stanley (natural parent v. State), were cases regarding issues of custody

between the natural parents and a third party, not between both natural parents.

¶17.    In custody disputes between natural parents and third parties, it is presumed that a child's best

interest is served by granting custody to the natural parent. Therefore, in order for the third party to

overcome this presumption, the third party must show either that the natural parent has abandoned the child

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or that the natural parent is unfit. Sellers v. Sellers, 638 So. 2d 481, 483 (Miss. 1994). Julie also cites

Thomas v. Purvis, 384 So.2d 610 (Miss. 1980), which contradicts her position that the wrong standard

was used to deny her legal custody.

        The principle that there must be a material change of circumstances which adversely affects
        a child's welfare before a custody decree may be modified only applies between parents
        of the child. The correct application of the law as between grandparents (also other
        persons) and parents is stated in Rodgers v. Rodgers, [274 So. 2d 671 (Miss. 1973],
        viz, the parent is entitled to custody of the child unless he/she has abandoned the child or
        is unfit to have custody, keeping in mind the best interest of the child.

Thomas, 384 So.2d at 612-13 (emphasis added).

¶18.    Julie also argues the chancellor failed to conduct an Albright analysis to show that she is an unfit

person. This Court addressed the issue of child custody in Mabus I and found that the chancellor did not

abuse his discretion by awarding sole legal custody of the couple’s minor children to Ray and joint physical

custody to both Julie and Ray. 2003 WL 327669 (Miss.)( ¶ 38 through ¶ 52, inclusive). Julie fails to

discuss what she perceives to be a material change in circumstances since the chancellor's last ruling

because she focuses on the standard of being a fit person. As the statute clearly states, the chancellor may

award sole legal custody to one parent while awarding joint physical custody to both parents. Miss. Code

Ann. § 93-5-24 (Supp. 2002) states in pertinent part:

        (1) Custody shall be awarded as follows according to the best interests of the child:
                (a) Physical and legal custody to both parents jointly pursuant to
                subsections 2 through 7.
                (b) Physical custody to both parents jointly pursuant to subsections
                2 through 7 and legal custody to either parent.
                (c) Legal custody to both parents jointly pursuant to subsections 2 through
                7 and physical custody to either parent.
                (d) Physical and legal custody to either parent.
        (2) Joint custody may be awarded where irreconcilable differences is the ground for
        divorce, in the discretion of the court, upon application of both parents.



                                                     7
        (7) There shall be no presumption that it is in the best interest of a child that a mother be
        awarded either legal or physical custody.3

(emphasis added).

¶19.    The burden is on Julie to prove a material change in circumstances has occurred in the custodial

home in order for this Court to reverse the chancellor's original child custody order. During the hearing on

Julie's motion to modify custody, Julie attempted to present evidence in seventeen (17) different areas which

would, taken together, amount to a material change in circumstances. After hearing all of the evidence, the

chancellor found Julie failed to meet her burden of proving a material change in circumstances.

¶20.    Now Julie is arguing the chancellor applied the wrong standard because he failed to conduct an

Albright analysis to show that Julie was an unfit parent. As stated above, this is the wrong standard. As

the Court of Appeals has correctly held, in a modification hearing, the chancellor will only apply the

Albright factors after the non-custodial parent has proven a material change in circumstances. McGehee

v. Upchurch, 733 So.2d 364, 369 (Miss. Ct. App. 1999).

        We do not reach Mr. McCracking's various complaints with the criteria for determining
        custody set out in Albright v. Albright, 437 So.2d 1003, 1005 (Miss. 1983). In a
        custody modification proceeding, the question of which parent will better serve the welfare
        of the children as custodial parent is not reached unless the chancellor has previously found
        a material change in circumstance detrimental to the child's best interest. McGehee v.
        Upchurch, 733 So.2d 364, 369 (Miss. Ct. App. 1999). Once such a change of
        circumstance has been found, the factors in Albright v. Albright ought to play a
        significant role in the chancellor's ultimate determination of a suitable custody arrangement.
        However, by failing to prove a change in circumstance detrimental to the children's best
        interests, Mr. McCracking's case fell short of the point where such issues could be
        considered by the chancellor.

McCracking v. McCracking, 776 So.2d 691, 694 (Miss. Ct. App. 2000).


        3
        The Amendment Notes under Miss. Code Ann. § 93-5-24 (Supp. 2002) state that “[t]he
2000 amendment substituted 'shall be awarded' for 'may be awarded' in (1); inserted present (7) and
redesignated former (7) as present (8).”

                                                      8
¶21.    Because Julie failed to meet her burden of proving a material change in circumstances, the

chancellor did not abuse his discretion in denying her request for modification of child custody or her

request for a rehearing. As stated previously, Miss. Code Ann. § 93-5-24 provides chancellors the

authority to grant sole legal custody to one parent while granting joint physical custody to both parents. The

required burden in child custody disputes between natural parents is proving a material change in

circumstances, not proving one parent to be unfit. Therefore, the chancellor did not err in his original award

of child custody.

                                             CONCLUSION

¶22.    Pursuant to Miss. Code Ann. § 93-5-24, a chancellor may award sole legal custody of children

to one parent and joint physical custody to both parents. Because the material change in circumstances

burden was not met, the chancellor was correct in denying the request to modify the original child custody

order. We, therefore, affirm the judgment of the chancery court.

¶23.    AFFIRMED.

    PITTMAN, C.J., SMITH, P.J., WALLER, COBB, DIAZ, EASLEY AND GRAVES, JJ.,
CONCUR. McRAE, P.J., CONCURS IN RESULT ONLY.




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