        IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                               NO. 2014-CA-00629-COA

KENNETH MORELAND                                                        APPELLANT

v.

BRANDI MORELAND GREENWOOD SPEARS                                          APPELLEE

DATE OF JUDGMENT:                         03/28/2014
TRIAL JUDGE:                              HON. GEORGE WARD
COURT FROM WHICH APPEALED:                ADAMS COUNTY CHANCERY COURT
ATTORNEYS FOR APPELLANT:                  MICHAEL JAMES MALOUF JR.
                                          MELISSA ANN MALOUF
                                          ROBERT EUGENE JONES II
ATTORNEY FOR APPELLEE:                    JOSEPH BILBO MOFFETT
NATURE OF THE CASE:                       CIVIL - CUSTODY
TRIAL COURT DISPOSITION:                  MODIFIED CHILD-CUSTODY
                                          AGREEMENT
DISPOSITION:                              REVERSED AND RENDERED: 03/01/2016
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       EN BANC.

       GRIFFIS, P.J., FOR THE COURT:

¶1.    Kenneth Moreland (Ken) and Brandy Moreland Greenwood Spears (Brandy) divorced

on August 23, 2012, on the ground of irreconcilable differences. There was one child born

to the marriage, Lauren. As part of their divorce decree, Brandy and Ken agreed to share

joint legal custody, make Brandy the custodial parent, award Ken liberal visitation, and

alternate the years Ken and Brandy could claim Lauren as a dependent on taxes. The

agreement also required Ken to pay $400 in monthly child support, one-half of school

expenses, and one-half of any activity expenses up to two activities.
¶2.    On August 9, 2013, Brandy filed a petition in Adams County Chancery Court for a

modification of the child-custody agreement and to hold Ken in contempt for failing to pay

his half of Lauren’s tuition and activity expenses. Brandy sought full legal custody, a change

to the visitation schedule, a mental evaluation of Ken, and reimbursement for all owed

expenses and expenses incurred in bringing the petition for modification.

¶3.    The chancellor held a hearing on the merits of the petition on March 18, 2014. Only

Brandy and Ken testified at the hearing. The chancellor issued an order on March 28, 2014.

He granted Brandy sole legal custody, modified Ken’s visitation, and ordered that only

Brandy could claim Lauren as a dependent. It is from this judgment that Ken appeals.

                                STANDARD OF REVIEW

¶4.    The Mississippi Supreme Court has stated that the standard of review in child-custody

cases “is quite limited. A chancellor must be manifestly wrong, clearly erroneous, or apply

an erroneous legal standard in order for this Court to reverse.” A.M.L. v. J.W.L., 98 So. 3d

1001, 1012 (¶23) (Miss. 2012) (quoting Mabus v. Mabus, 847 So. 2d 815, 818 (¶8) (Miss.

2003)). Further, “[f]indings of fact made by a chancellor may not be set aside or disturbed

upon appeal if they are supported by substantial, credible evidence.” Id. at 1013 (¶23)

(quoting Marascalco v. Marascalco, 445 So. 2d 1380, 1382 (Miss. 1984)).

                                        ANALYSIS

       I.     Whether the chancellor erred in awarding Brandy full legal custody.

¶5.    Ken initially challenges the decision of the chancellor to grant Brandy full legal

custody of Lauren. For a change in custody, the party seeking a modification must show by



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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.” Mabus,

847 So. 2d at 818 (¶8) (citations omitted).

¶6.    First, Ken asserts the chancellor erred in finding that Brandy proved a material change

in circumstances. “In considering whether there has been such a change in circumstances,

the totality of the circumstances should be considered.” Id. (citing Spain v. Holland, 483 So.

2d 318, 320 (Miss. 1986)). At the hearing, Brandy testified that Ken’s behavior had

deteriorated since the divorce, he failed to earn enough money as a farmer to provide for

Lauren, and he could not adequately care for Lauren.

¶7.    Brandy testified that Ken frequently brought Lauren to preschool late and had caused

a disruption at Lauren’s school during a tour of the facilities. Another event occurred when

Ken brought Lauren to a dance event late, rushed her onto the field during the performance,

and knocked Lauren down. Brandy also alluded to Ken’s mental state, as he underwent a

psychological evaluation and exhibited obsessive-compulsive tendencies. Brandy further

testified that Ken harassed Lauren’s doctors for information. However, Brandy stated that

her communication with Ken suffered, and she admittedly ignored some of Ken’s emails with

questions about Lauren’s care.

¶8.    Ken testified that while he did take Lauren to school late, Brandy also took Lauren to

school late. Further, Lauren’s teacher said the tardiness was not a problem, and Ken testified

he would improve in the future. Additionally, Ken’s mental evaluation revealed mild anxiety



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but not a diagnosis of obsessive-compulsive disorder or any other disorder. Also, Ken denied

that his farming income constituted a material change. Ken began farming in 2008, prior to

Brandy and Ken’s divorce agreement. Ken further asserts that Brandy’s primary motivation

for seeking a modification was to compel Ken to pay for private school and extracurricular

activities.

¶9.    The chancellor found that Ken’s failure to pay half of Lauren’s tuition and activity

fees constituted a material change in circumstances. The chancellor, however, did not find

Ken’s failure to pay resulted in contempt. Ken contends the divorce decree did not require

him to pay these expenses if Brandy unilaterally decided on the school and activities. The

decree stated:

       Kenneth Moreland shall pay one-half (½) of all expenses of the minor child for
       up to two (2) extracurricular activities and the reasonable age appropriate
       expenses of the minor child[,] which the parties agree are reasonable and
       necessary for the minor child.

       ....

       The parties shall be responsible for one-half (½) of all preschool and/or private
       school tuition and expenses for the minor child attending preschool and/or
       private school, until graduation, including but not limited to registration fees,
       school uniforms, school supplies, lunches[,] and any other expenses due to the
       school or as a result of the minor child attending school if the parties agree to
       enroll Lauren in a private preschool or school.

(Emphasis added).

¶10.   Ken and Brandy mutually agreed to the terms of the divorce decree. Therefore, this

Court must determine whether the decree, as a contract, compelled Ken to pay these

expenses. “While a chancellor’s decisions in a domestic action are reviewed for manifest



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error, a property settlement agreement is a contract, and contract interpretation is a question

of law, which is reviewed de novo.” Gaiennie v. McMillin, 138 So. 3d 131, 135 (¶8) (Miss.

2014) (citation omitted).      “This Court applies a three-tiered approach to contract

interpretation. First, we apply the four corners test, wherein this Court looks to the language

that the parties used in expressing their agreement.” Id. (internal quotations and citations

omitted).

¶11.   Looking to the terms of the decree, the provisions clearly compel Ken to pay for

Lauren’s private-school tuition and expenses only if the parties agree to enroll Lauren in a

private school. Ken testified that he did not agree to Lauren’s attendance at a private

preschool or the activities Brandy enrolled her in. Though Ken attended Lauren’s events, he

did not discuss or agree with Brandy’s choices of school or activities. Therefore, Ken did

not have to pay for these expenses, and the chancellor erred in finding his actions constituted

a material change in circumstances.

¶12.   Despite whether these instances constituted a material change in circumstances, it was

incumbent upon Brandy to show these changes had an adverse effect on Lauren. Brandy’s

only contention of an adverse effect was that some of Ken’s actions embarrassed Lauren and,

as Lauren grew older, Brandy speculated that the extent of embarrassment would increase.

Brandy, however, fails to show how embarrassment equates to an adverse effect. Lauren

continued to performed well in school and received satisfactory marks in her progress

reports. As such, we find that Brandy failed to prove any adverse effects on Lauren.

¶13.   This Court has held far more egregious conduct did not warrant a change in custody



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when no adverse effect occurred. In Sudduth v. Mowdy, 991 So. 2d 1241, 1245 (¶14) (Miss.

Ct. App. 2008), this Court found the minor child’s dental problems, the mother’s

inappropriate relationships, and the allegations that the mother gave the child anti-psychotic

drugs did not warrant a modification of custody from the mother to the father when the father

failed to prove any adverse effects on the child.

¶14.   Likewise, in Wikel v. Miller, 53 So. 3d 29, 35-36 (¶¶15, 17) (Miss. Ct. App. 2010),

this Court affirmed the chancellor’s findings that the mother’s interference with the father’s

visitation, the minor children’s behavioral problems requiring counseling, and the mother’s

prior relationships did not warrant a modification in custody when the minor children

excelled in school and showed no adverse effects. For these reasons, Brandy failed to

demonstrate that Lauren suffered from adverse effects warranting a modification.

¶15.   The third consideration for modification is the best interests of the child. The

chancellor found a material change in circumstances that adversely affected Lauren required

a modification of Ken’s legal custody. The chancellor stated this change in custody was in

the best interests of Lauren. But the chancellor failed to make any findings under the

Albright1 factors to show how the modification was in Lauren’s best interests.

¶16.   This Court finds that Brandy failed to meet her burden of proving a material change

in circumstances that adversely affected Lauren. The chancellor’s decision was manifestly

wrong, as he found that all factors weighed in favor of granting sole legal custody to Brandy.

Therefore, this Court reverses the chancellor’s decision and renders that Ken’s legal custody

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       Albright v. Albright, 437 So. 2d 1003 (Miss. 1983), sets forth the factors chancellors
must use in determining child custody.

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is restored.

       II.     Whether the chancellor erred in modifying visitation.

¶17.   Ken also contends the chancellor erred when he modified the visitation agreement.

“To modify a visitation order, ‘it must be shown that the prior decree for reasonable

visitation is not working and that a modification 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. Ellis, 840 So. 2d

806, 812 (¶25) (Miss. Ct. App. 2003)). “The chancellor has broad discretion to determine

the specific times for visitation.” Id. (citing Haddon v. Haddon, 806 So. 2d 1017, 1020 (¶12)

(Miss. 2000)).

¶18.   Ken argues that Brandy failed to show that the prior visitation schedule did not work.

Ken also contends that the visitation schedule in the divorce decree was in place less than a

year before Brandy attempted to modify, so the visitation schedule was not in place long

enough to work. In contrast, Brandy argues that Lauren’s tardiness when Ken took her to

school demonstrated that the visitation schedule needed to change.

¶19.   In Jones v. McQuage, 932 So. 2d 846, 849 (¶¶14-15) (Miss. Ct. App. 2006), this Court

reversed a chancellor’s modification of visitation based on the child’s tardiness. This Court

found the tardiness could be attributed to the custodial parent and that the visitation schedule

that was in place for only a four-month period was not long enough to prove whether it

worked or not. Id. Further, in another case, this Court reversed a visitation modification

when the mother failed to demonstrate that the visitation schedule did not work or that the

child experienced adverse effects. Witters v. Witters, 864 So. 2d 999, 1003 (¶16) (Miss. Ct.



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App. 2004); see also Riley v. Riley, 884 So. 2d 791, 794-95 (¶17) (Miss. Ct. App. 2004)

(denied modification where no evidence that transportation provisions in schedule did not

work). Therefore, Brandy needed to show the visitation schedule did not work before the

chancellor could have granted a modification.

¶20.   Based on Brandy’s assertion, the chancellor modified visitation so that Ken did not

take Lauren to school. This was in error. The chancellor found Lauren’s tardiness when she

stayed with Ken and Ken’s disruption of Lauren’s class illustrated that the visitation schedule

needed a modification in Lauren’s best interests. However, several of Lauren’s tardies were

attributable to Brandy, and there was no additional evidence to indicate that the schedule did

not work aside from Lauren’s tardiness. The chancellor’s finding that the visitation schedule

did not work and his failure to make a finding of the best interests of the child were

manifestly wrong. Therefore, this Court reverses the chancellor’s modification and reinstates

the original visitation schedule.

       III.   Whether the chancellor erred in preventing Ken from claiming Lauren
              as a dependent for tax purposes.

¶21.   Ken’s final issue on appeal is that the chancellor erred when he gave Brandy the

ability to claim Lauren as a dependent for taxes every year. Previously, Brandy and Ken

alternated the years they could claim Lauren. The chancellor, however, stripped Ken of this

right based on his failure to pay for Lauren’s private-school tuition and her extracurricular

activities.

¶22.   In their property-settlement agreement, the parties agreed:

       For future years beginning 2012, Father shall claim Lauren as an income tax

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       dependent in even numbered years and Mother shall claim Lauren as an
       income tax dependent in odd numbered years for State and Federal income tax
       purposes.

Also, in the judgment, the chancellor ruled:

       [I]n as much as Mr. Moreland is paying no portion of the child’s private school
       education and other related expenses and one-half of the costs of the child’s
       extracurricular activities, and since Ms. Moreland is the custodial parent, Mr.
       Moreland shall not be allowed to claim the child as a dependent for income tax
       purposes.

¶23.   Based on our ruling above, the grounds for the chancellor’s decision to amend the

property-settlement agreement as to the income-tax deduction is without a sufficient basis.

Further, there is simply not sufficient evidence to support the modification of the property-

settlement agreement and change the parties’ agreed-upon decision as to the tax deduction.

¶24.   As a result, this Court reverses and renders a judgment that restores the terms of the

original property-settlement agreement that allows Ken to claim an income-tax deduction for

Lauren in alternating years.

¶25. THE JUDGMENT OF THE ADAMS COUNTY CHANCERY COURT IS
REVERSED AND RENDERED. ALL COSTS OF THIS APPEAL ARE ASSESSED
TO THE APPELLEE.

     LEE, C.J., BARNES, ISHEE, FAIR, JAMES AND WILSON, JJ., CONCUR.
IRVING, P.J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE
WRITTEN OPINION. CARLTON, J., DISSENTS WITHOUT SEPARATE
WRITTEN OPINION. GREENLEE, J., NOT PARTICIPATING.




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