                      IN THE SUPREME COURT OF MISSISSIPPI

                                 NO. 2004-CT-00088-SCT

GINGER M. McSWAIN (HARTFIELD)

v.

CHARLES C. McSWAIN

                               ON WRIT OF CERTIORARI

DATE OF JUDGMENT:                           09/16/2003
TRIAL JUDGE:                                HON. JAMES H. C. THOMAS, JR.
COURT FROM WHICH APPEALED:                  LAMAR COUNTY CHANCERY COURT
ATTORNEY FOR APPELLANT:                     WILLIAM E. ANDREWS, III
ATTORNEY FOR APPELLEE:                      JAMES R. HAYDEN
NATURE OF THE CASE:                         CIVIL - DOMESTIC RELATIONS
DISPOSITION:                                THE JUDGMENT OF THE COURT OF
                                            APPEALS IS REVERSED. THE
                                            JUDGMENT OF THE LAMAR COUNTY
                                            CHANCERY COURT IS REINSTATED
                                            AND AFFIRMED - 12/14/2006
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       EN BANC.

       COBB, PRESIDING JUSTICE, FOR THE COURT:

¶1.    The Lamar County Chancery Court, in a hearing for modification of child custody,

held that custody should be transferred from the mother, Ginger M. McSwain Hartfield 1 , to

the father, Charles C. McSwain. The Court of Appeals reversed, finding that the chancellor

had erred in considering Ginger’s past behavior and the possibility of future improvident

behavior in determining whether there had been a material change in circumstances that had



       1
           Ginger has remarried and taken the last name of her husband, Joe Hartfield.
adversely affected their child, Miller McSwain. We hold that there was no abuse of

discretion by the chancellor; and therefore, we reverse the judgment of the Court of Appeals

and affirm the chancellor’s judgment.

                FACTS AND CHANCERY COURT PROCEEDINGS

¶2.    Charles and Ginger McSwain were married in 1997, and Miller was born in October,

1998. The couple filed for an irreconcilable differences divorce in April of 2000 in the

Lamar County Chancery Court. In the settlement agreement, they agreed to joint legal

custody of Miller with Ginger having primary physical custody.2 The judgment was final on

September 14, 2000.

¶3.    In February 2001, Ginger married Joe Hartfield. The trial evidence shows that the

marriage was strained from the beginning. Hartfield and Ginger engaged in arguments and

fights that sometimes erupted into physical violence as well.3 On at least one occasion, the

violence rose to such a level that the police had to be called.

¶4.    Hartfield testified that he believed Ginger’s actions to be the result of her alcoholism.

He also spoke of Ginger’s problems with depression and the negative effect that her drinking



       2
         Although it is a phrase commonly used by lawyers and judges, there is no provision
under Miss. Code Ann. Section 93-5-24 for “primary” physical custody. That section sets
forth the various combinations of physical and legal custody, but with regard to physical
custody, it only provides for joint physical custody, and physical custody in one parent or
another. See Rush v. Rush, 932 So. 2d 794, 796 (Miss. 2006).
       3
         The physical violence included one occasion on which Ginger ripped Mr. Hartfield’s
shirt off. On another occasion, Ginger drew a knife on him. There was also an occasion
where Ginger threw a laptop into the windshield of Mr. Hartfield’s car. Miller was forced
to witness many of these fights and was upset by them.

                                               2
had on her medication. On one occasion, Hartfield, frightened by Ginger’s actions, left with

Miller and took him to the home of Hartfield’s mother.

¶5.    In July 2002 Ginger began using cocaine with her neighbor, Ramona. Ginger

admitted that by September, she and Ramona were using cocaine frequently. She also

admitted that Miller would go with her to Ramona’s house when she was using cocaine, but

she denied ever using cocaine “in front of him.” 4 Ginger did admit to drinking a few times

a week in front of Miller.5

¶6.    In late September of 2002, Ginger voluntarily admitted herself into the Jolimar

Wellness Institute (Jolimar) for drug and alcohol rehabilitation. Ginger, Hartfield, and

Charles McSwain agreed privately that Charles would have physical possession of Miller for

the duration of Ginger’s stay at Jolimar. On October 22, 2002, Ginger completed a 28-day

primary care program at Jolimar, and then stayed in an extended care program which she

completed on November 22, 2002. However, she attended the weekly aftercare program

only until February, 2003, notwithstanding Jolimar’s discharge evaluation and aftercare

recommendation that she attend aftercare groups for two years.

¶7.    On November 5, 2002, before Ginger had completed her extended care program,

Charles filed a petition for modification and emergency hearing without notice in the Lamar

County Chancery Court, seeking permanent modification of child custody. On that day, the

       4
         Ginger said that she would leave Miller in one room while she and Ramona went
into the bathroom and smoked the cocaine using a pipe.
       5
         Ginger testified that when she would drink in front of Miller, she referred to the
alcohol that she was drinking as “hot coffee.”

                                             3
chancellor granted temporary physical custody of Miller to Charles in an ex parte emergency

temporary order. On November 13, Ginger moved to set aside the temporary order, and the

chancellor modified the temporary order to allow Ginger weekend visitation beginning

November 15, 2002.

¶8.    Between December 10, 2002, and January 31, 2003, the chancellor entered three

additional temporary orders which increased Miller’s time with Ginger, on a alternating

basis. The trial was set for March 12, 2003, but when a subpoenaed witness failed to appear,

the matter was continued. Once again, the chancellor entered a temporary order regarding

Miller, which alternated his physical possession between Charles and Ginger on a weekly

basis until the date of trial.

¶9.    The trial took place August 25 and 26, 2003. Final judgment was issued September

16, 2003, continuing joint legal custody, but transferring physical custody of Miller from

Ginger to Charles, and granting “every reasonable visitation” to Ginger, albeit within a

specific schedule. In support of his decision, the chancellor cited that Ginger is an admitted

drug and alcohol addict who is currently on medication for depression. The chancellor found

that Ginger has had suicidal thoughts and suffers from the usual negative feelings that

accompany drug and alcohol abuse. It was also found that there is still friction between

Ginger and Hartfield in their marriage. Ginger’s continued association with Ramona, the

neighbor who had supplied Ginger with cocaine, was of particular concern to the chancellor.

¶10.   The judgment also reflected the chancellor’s concerns that Ginger had not attended

the suggested aftercare for her rehabilitation. Ginger’s counselor at Jolimar testified that he

                                              4
believed Ginger would seek help if she lost control of her actions. The chancellor stated that

Ginger’s past inability to control her actions would not make for a good circumstance for a

child dependant on Ginger making important decisions.

¶11.   Although it was recognized that Charles had been married four times and used alcohol

regularly,6 the chancellor found that Charles had a more stable home environment. To

support this position, the chancellor pointed out that Charles worked from his home, had a

comfortable income and was currently in a stable marriage.

¶12.   With these findings, the chancellor determined that there had been a material change

in circumstances which had an adverse impact on Miller. The chancellor then tracked the

factors set forth in Albright v. Albright, 437 So. 2d 1003 (Miss. 1983), as he evaluated the

facts and circumstances to determine whether it was in Miller’s best interest to remain in the

custody of his mother, or whether it would be best for Miller to be in his father’s custody.

The chancellor then awarded custody of Miller to Charles McSwain, giving Ginger

reasonable visitation rights.

                   PROCEEDINGS IN THE COURT OF APPEALS

¶13.   On direct appeal, the Court of Appeals reversed and rendered with respect to the

chancellor’s decision to modify custody of Miller, holding that the chancellor had abused his

discretion by “focus[ing] on the potential for future problems rather than the presently-




       6
        His undisputed testimony was that he does drink occasionally, and that in the past
year he may have bought “three or four cases of beer, so one, two beers a week.”

                                              5
existing circumstances of Miller’s home life.” McSwain v. McSwain, 2005 Miss. App.

LEXIS 833 at ¶13 (Miss. Ct. App. 2005).

                                        ANALYSIS

       I.     Standard of Review

¶14.   This Court laid out the standard for reviewing a chancellor’s decision in a child

custody case in Mabus v. Mabus, 847 So. 2d 815 (Miss. 2003). “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.” Id. at 818.

       II.    Evidence of material change in circumstances

¶15.   In a modification proceeding, the burden is on the non-custodial parent to prove by

a preponderance of the evidence: “(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.” Id.

(citing Bubac v. Boston, 600 So. 2d 951, 955 (Miss. 1992)).

¶16.   The crux of the Court of Appeals’ analysis was that the material changes in

circumstances in Miller’s home life that would have an adverse affect on Miller were not

continuous and no longer existed at the time of the trial. “[T]he chancellor should find that

the overall circumstances in which a child lives have materially changed and are likely to

remain materially changed for the foreseeable future.” McSwain, 2005 WL 2979678 at ¶

12 (quoting Tucker v. Tucker, 453 So. 2d 1294, 1297 (Miss. 1984)) (emphasis in original).

The Court of Appeals stated that the chancellor abused his discretion because he focused on

                                             6
the potential for future problems rather than presently-existing circumstances and, because

Ginger was drug and alcohol free at the time of the hearing, the material change in

circumstances was not contemporaneous and could not mandate a change of custody. Id. at

¶13. The Court of Appeals went on to say that it appeared “that the chancellor mistakenly

used past misconduct on Ginger’s part to trigger a re-weighing of the Albright factors.” Id.

at ¶15.

¶17.      This Court recently dealt with a very similar case in Johnson v. Gray, 859 So. 2d

1006 (Miss. 2003), where a mother (Johnson) appealed a chancellor’s order that custody of

her child be transferred from her to her ex-husband, the child’s natural father (Gray).

Johnson was an alcoholic, had at least one car accident where she was driving under the

influence of alcohol, and even had an incident where she got into a fight with her boyfriend

and knocked a window out of his truck. Id. at 1008-09. However, as in the case presently

before the Court, Johnson sought treatment from a rehabilitation facility and was released

prior the custody hearing in her case, and she was attending aftercare twice every week. Id.

at 1014-15. She had also married, started attending church, and was building a home before

the hearing. Id. Under the Court of Appeals’ reasoning, Johnson should have retained

custody of her child. However, this Court upheld the chancellor’s decision to transfer

custody from Johnson to Gray, stating that “hardly enough time” had passed “to determine

if [Johnson] [would] be able to remain sober.” Id. at 1015.         This Court upheld the

chancellor’s decision to use the possibility of a future relapse as a factor weighing against

Johnson.

                                              7
¶18.   Here, the chancellor cited numerous reasons for his decision to modify custody of

Miller. The factors considered included Ginger’s depression and the fact that she had

suicidal thoughts. Ginger’s drug and alcohol addiction, her failure to attend aftercare, and

the fact that Ginger still associates with her former drug partner also weighed heavily in the

chancellor’s decision.

¶19.   The Court of Appeals held that because Ginger was not using drugs or alcohol at the

time of the hearing, Ginger’s addiction could not be considered a continuing change in

circumstance. However, by Ginger’s own admission on the witness stand, she will always

be an addict, and, as the chancellor mentioned in his judgment, she continues to suffer from

the negative feelings that accompany an addiction. Ginger’s drug addiction transpired after

the custody arrangement to which she and Charles agreed was incorporated into their

irreconcilable differences divorce decree.     It is most certainly a material change that

adversely affects Miller, and because her drug addiction is something that Ginger will likely

have to endure for years, if not the rest of her life, it continues. Ginger’s drug addiction

satisfies the first two prongs of the test for modification of child custody.

¶20.   Also cited by the chancellor was the discord in Ginger’s marriage with Joe Hartfield.

The Court of Appeals stated that because the tension between Hartfield and Ginger at the

time of trial “was not as fierce and contentious as it had previously been,” that the

circumstances that might have mandated a change in custody had subsided. McSwain, 2005

WL 2979678 at ¶17. As discussed earlier, the fights that took place between Hartfield and




                                               8
Ginger were often extremely heated and very violent. These types of fights constituted a

material change in circumstances that would adversely affect Miller.

¶21.   Taken in the aggregate, the factors considered by the chancellor obviously constitute

sufficient circumstances to warrant a change in custody would be in Miller’s best interests.

The chancellor thoroughly examined the evidence and made a finding of fact using the

Albright factors.   He determined that Miller’s best interests would be served by a

modification of the original custody agreement, and awarded custody of Miller to Charles

McSwain. We find no error in this regard.

       III.   Modification of custody

¶22.   This Court has been very clear about the amount of deference that chancellors are to

receive in making a factual determination. “[W]e, as an appellate court, will affirm the

decree if the record shows any ground upon which the decision my be justified ...We will not

arbitrarily substitute our judgment for that of the chancellor who is in the best position to

evaluate all factors relating to the best interest of the child.” Tucker, 453 So. 2d at 1296

(quoting Yates v. Yates, 284 So. 2d 46, 47 (Miss. 1973)). In the present case, there was

sufficient evidence for the chancellor to find that a change of custody was in Miller’s best

interest. A review of the record and the judgment reveals no manifest wrong, clear error, or

improper legal analysis, and the ruling of the chancellor was reasonable under the facts.

                                     CONCLUSION

¶23.   Chancellors are in the best position to make a determination based on the facts

presented to them at trial. In this case, the chancellor stated that Ginger was a good mother

                                             9
who made a bad choice. Unfortunately, the choices that Ginger made will affect her and her

family for a very long time. The chancellor weighed the facts in this case and made a ruling

based on those facts, and this Court will not second guess that ruling. Therefore, the

judgment of the Court of Appeals is reversed, and the judgment of the Lamar County

Chancery Court is affirmed.

¶24. THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED. THE
JUDGMENT OF THE CHANCERY COURT OF LAMAR COUNTY IS
REINSTATED AND AFFIRMED.

    SMITH, C.J., WALLER, P.J., DIAZ, EASLEY, CARLSON, DICKINSON AND
RANDOLPH, JJ., CONCUR. GRAVES, J., DISSENTS WITHOUT SEPARATE
WRITTEN OPINION.




                                            10
