           IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                               NO. 2013-CA-01907-COA

NATHAN ROBINSON                                                           APPELLANT

v.

KATHRYN ROBINSON AND BILL BAILEY                                           APPELLEES

DATE OF JUDGMENT:                         10/08/2013
TRIAL JUDGE:                              HON. JACQUELINE ESTES MASK
COURT FROM WHICH APPEALED:                LEE COUNTY CHANCERY COURT
ATTORNEY FOR APPELLANT:                   JOHN A. FERRELL
ATTORNEYS FOR APPELLEES:                  ANTHONY RHETT WISE
                                          EDWIN HUGHES PRIEST
NATURE OF THE CASE:                       CIVIL - CUSTODY
TRIAL COURT DISPOSITION:                  DENIED MODIFICATION OF CHILD
                                          CUSTODY
DISPOSITION:                              AFFIRMED: 02/10/2015
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

      BEFORE GRIFFIS, P.J., BARNES AND CARLTON, JJ.

      GRIFFIS, P.J., FOR THE COURT:

¶1.    Nathan Robinson appeals the chancellor's judgment that denied his petition to modify

child custody. We find no error and affirm.

                                         FACTS

¶2.   Nathan and Kathryn Robinson married on January 17, 2004. Their child, Bailey, was

born on July 7, 2004. During her pregnancy with Bailey, Kathryn was diagnosed with

Hodgkin’s lymphoma. Shortly after this diagnosis and the birth of Bailey, Kathryn and

Nathan separated. Kathryn lived with her parents, Bill and Donna Bailey, pending the

divorce.
¶3.    On May 3, 2005, Nathan and Kathryn were divorced on the ground of irreconcilable

differences. Knowing of Kathryn’s medical condition and that she received assistance caring

for Bailey from her parents, Nathan agreed that Kathryn should have full custody of Bailey.

Their agreement was reduced to writing, and the chancellor entered a final judgment that

awarded Kathryn custody of Bailey and granted Nathan visitation with Bailey every other

weekend.

¶4.    After the divorce, Kathryn moved into her own place and continued to receive help

in caring for Bailey from her parents while she was going through cancer treatments.

Kathryn’s chemotherapy required that she be quarantined for about a week every three

months. During this time, Bailey would stay with Bill and Donna.

¶5.    Due to chemotherapy, Kathryn developed nerve damage in her hands – neuropathy.

Because of her neuropathy, Kathryn could not and still cannot drive. She hopes to recover

to be able to transport Bailey to school and other activities. In the meantime, unable to drive,

she received help from her parents to transport Bailey. Often, the easiest solution, because

of Kathryn’s condition, was to let Bailey sleep at Bill and Donna’s house on school nights,

so they could take Bailey to school. Bailey would sleep at Kathryn’s house on her weekends

and during the summer.

¶6.    In 2009, Nathan filed a petition to modify child custody. He cited Kathryn’s poor

health and alleged that she failed to exercise her parental rights. The chancellor found that

Kathryn’s health condition existed at the time of divorce and that she did exercise her

custodial rights.

¶7.    On June 6, 2012, Nathan filed a complaint for modification against Kathryn and her


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father, Bill Bailey.1 To support his complaint, Nathan claims that Kathryn is in poor health

and unable to care for Bailey. He also alleged:

       [Nathan] is now married, has a nice home in which to raise his child[,] and it
       is in the child’s best interest, based on a totality of the circumstances, for him
       to be allowed to have custody of his child at this time since the custodial parent
       is unable to perform those duties. To continue to deny him custody of his
       child is tantamount to allowing custody to be given to a third party without
       requisite findings under applicable law that [Nathan] has abandoned the child,
       is morally unfit[,] or is otherwise physically or mentally unfit to have custody,
       none of which is the case.

¶8.    After a hearing, on October 8, 2013, the chancellor entered a detailed, fifteen-page

opinion and final judgment. The chancellor denied Nathan’s request for a modification of

custody and denied all other relief requested. It is from this judgment that Nathan now

appeals.

                                STANDARD OF REVIEW

¶9.    “In domestic relations cases, [the appellate court's] scope of review is limited by the

substantial evidence/manifest error rule.” Samples v. Davis, 904 So. 2d 1061, 1063-64 (¶9)

(Miss. 2004) (citing Jundoosing v. Jundoosing, 826 So. 2d 85, 88 (¶10) (Miss. 2002)). This

Court will not disturb the findings of a chancellor when supported by substantial evidence

unless the chancellor abused his discretion, was manifestly wrong, or applied an incorrect

legal standard. Id. at 1064 (¶9).

                                         ANALYSIS



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          Nathan’s complaint for modification also named Kathryn’s father and Bailey’s
maternal grandfather, Bill Bailey. Bailey to him. The chancellor did not make any findings
directly related to Bill, but clearly denied all claims for relief, which would include the
claims Nathan made against Bill. On appeal, Nathan argues for no relief against Bill. As
a result, Nathan’s claims against Bill are not addressed in this opinion.

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¶10.     “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.” Denmark v. Denmark, 118 So. 3d 679, 681 (¶5) (Miss. Ct.

App. 2013). “[T]he totality of the circumstances should be considered.” Id. “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.

“Furthermore, it is well settled that the polestar consideration in any child custody matter is

the best interest and welfare of the child.” Id. (citing Albright v. Albright, 437 So. 2d 1003,

1005 (Miss. 1983)).

¶11.     In her substantial/material-change-of-circumstances analysis, the chancellor found

Kathryn’s situation to be similar to the mother with medical problems in Robbins v. Robbins,

40 So. 3d 637 (Miss. Ct. App. 2010). There, this Court held that, “[b]ecause [the mother’s]

health issues were in existence prior to the divorce and the husband was aware of them, there

ha[d] been no material change in circumstances.” Id. at 640 (¶9).

¶12.     The evidence indicated that Kathryn’s health drastically improved in 2009. Her

cancer went into remission in 2010. Nevertheless, she continued to experience serious health

issues. In February 2013, Kathryn had heart surgery to repair a damaged valve. Then, in

June 2013, she had surgery to remove her gallbladder.

¶13.     Once Kathryn’s cancer went into remission in 2010, she spent almost every day with

Bailey. On school days, Kathryn sees Bailey every day of the week for around three hours

a day.    Kathryn attends all of Bailey’s activities and goes to church with Bailey on


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Wednesday nights. On her weekends, Kathryn spends all of her time with Bailey.

¶14.   On Nathan’s weekends, he is responsible for Bailey. He will work for around five

hours on Saturdays. On some occasions, he works for a small amount of time on Sunday.

Of the four nights a month Nathan keeps Bailey, Bailey is left for one night at his parent’s

home. When Nathan worked on the weekends, Bailey would spend time with Nathan’s wife,

Marsha Robinson, and Marsha’s child. Nathan and Marsha have one child together, who was

born in 2011.

¶15.   Marsha testified that she thought Bailey is “not a normal nine-year[-]old.” When

Marsha would be doing housework, she considered it was odd that Bailey would want to be

near her. Marsha would have to tell her to go do something so that Bailey would leave her.

Bailey would also ask Marsha permission to use the restroom. Marsha thought that this also

made Bailey not “normal.”

¶16.   When Bailey spends the night at Kathryn’s parent’s house, all Bailey does there is

sleep and get ready for school. Bailey’s homework is done at Kathryn’s home with Kathryn,

and Bailey plays with the kids in Kathryn’s neighborhood. A neighbor testified that she is

very impressed with Bailey’s behavior when she plays with her daughter. Also, the neighbor

said that Kathryn is very involved. Another witness testified that Kathryn and Bailey are

often seen together at birthday parties, recitals, cheer, and dance.

¶17.   The evidence also indicated that Kathryn makes all parenting decisions, and she did

not delegate these decisions to her parents. Kathryn decided what church Bailey attends and

attends with her. Kathryn also makes the doctor appointments and goes with Bailey. When

Kathryn cannot make it to activities because of her medical condition, her parents assist


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Kathryn in the same capacity as they did at the time of original child-custody decree. Lastly,

Bailey is making all A’s, and Nathan agrees that Bailey is an excellent student.

¶18.   Nathan argued that, because Kathryn’s health has improved since 2009, there was no

need for Bailey to spend the night at the grandparents for transportation to and from school.

He asserts that Kathryn’s decision to allow Bailey to spend the night at her parent’s house

consistently on school nights to transport Bailey to and from school was a failure to exercise

her custodial rights and obligations.

¶19.   Nathan claims that the facts here are similar to McBride v. Cook, 858 So. 2d 160

(Miss. Ct. App. 2003). In McBride, the mother, after the divorce, left her child with the

maternal grandparents for substantial amounts of time to act as a caregiver to a man she

ultimately married. Id. at 162 (¶4). There, the Court held that a “total surrender of parental

control by the custodial parent to third parties may reasonably be viewed by the chancellor

as a material variation from the custodial arrangement contemplated at the time of the

divorce.” Id. at 163 (¶6).

¶20.   We find that Kathryn’s situation differs from the choices the mother made post-

divorce in McBride. There, it was not known at the time of the custody decree that the

mother would leave her daughter for substantial amounts of time to be a caregiver for her

future husband. In contrast, Nathan knew of Kathryn’s medical condition and that she

received assistance from her parents at the issuance of child custody.

¶21.   Accordingly, we find that the chancellor's opinion was supported by substantial

evidence. The chancellor did not abuse her discretion, was not manifestly wrong or clearly

erroneous, and did not apply an erroneous legal standard. Therefore, we find no error and


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affirm the chancellor’s judgment that denied the complaint for modification.

¶22. THE JUDGMENT OF THE LEE COUNTY CHANCERY COURT IS
AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE
APPELLANT.

   LEE, C.J., IRVING, P.J., BARNES, ISHEE, ROBERTS, CARLTON,
MAXWELL AND FAIR , JJ., CONCUR. JAMES, J., NOT PARTICIPATING.




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