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IN RE E.C.P. Miss.

809
Cite as 918 So.2d 809 (Miss.App. 2005)

tions. Moreover, he is not being held un- filed motion for contempt. Child’s attorney
der the sentence of which he complains. filed petition for change of custody of child
Morris’s 1982 sentence of three years ex- from ex-wife to ex-husband. The Chancery
pired in 1985, nineteen years before the Court, Lauderdale County, Sarah P.
filing of his post-conviction relief motion. Springer, Chancellor, denied motion to
Furthermore, Morris has not provided this modify custody, found ex-husband in con-
Court with any proof that he is still serv- tempt, and ordered him to pay ex-wife
ing the sentence nor does he allege that he $35,000 in attorney fees. Ex-husband and
is still serving that particular sentence. child appealed.
Shaw, 803 So.2d at 1284(¶ 7). Therefore,
Holdings: The Court of Appeals, Griffis,
the post-conviction relief statutes provide
J., held that:
him no remedy. Miss.Code Ann. § 99–39–
5(1) (Supp.2003); Id. (1) trial court’s finding that ex-husband
was in contempt for violating provision
¶ 7. Finally, we will not hear Morris’s
argument because we have previously of parties’ divorce judgment requiring
ruled in section I of this opinion that this them to ‘‘foster healthy relationships’’
petition is procedurally barred. Thus, we with their children and to cooperate
affirm. was clearly erroneous;
¶ 8. THE JUDGMENT OF THE SUN- (2) there was insufficient evidence to sup-
FLOWER COUNTY CIRCUIT COURT port finding of contempt against ex-
DISMISSING THE MOTION FOR husband on basis that he allegedly con-
POST–CONVICTION RELIEF IS AF- spired and assisted child in not re-
FIRMED. ALL COSTS OF THIS AP- turning to ex-wife’s home following her
PEAL ARE ASSESSED TO SUNFLOW- Christmas visitation with ex-husband;
ER COUNTY. (3) ex-wife’s relocation with children to
another state constituted material or
KING, C.J., BRIDGES AND LEE, substantial change in circumstances;
P.JJ., IRVING, MYERS, CHANDLER,
(4) evidence supported conclusion that ex-
BARNES AND ISHEE, JJ., CONCUR.
wife’s relocation had adversely affected

,
child;
(5) reversal of trial court’s order denying
ex-husband’s motion for modification of
physical custody of child from ex-wife
In re E.C.P., A Minor. to him was required; and
(6) ex-wife’s actions of re-locating with
D.A.P., Appellant
children to another state without first
v. discussing relocation with ex-husband
C.A.P.R., Appellee. did not constitute contempt of court.
Nos. 2003–CA–01745–COA, Affirmed in part; reversed and remanded
2003–CA–02614–COA. in part.
Court of Appeals of Mississippi.
June 28, 2005. 1. Appeal and Error O847(1), 949,
Rehearing Denied Jan. 17, 2006. 1009(1)
Background: Ex-husband filed motion for Court of Appeals will not disturb the
modification of custody of child. Ex-wife findings of a chancellor when supported by
810 Miss. 918 SOUTHERN REPORTER, 2d SERIES

substantial evidence unless the chancellor dence indicated that ex-husband sought
abused his discretion, was manifestly aid, services and support of law enforce-
wrong, clearly erroneous, or applied an ment, an attorney and a psychologist to try
erroneous legal standard. to get child to comply with court’s order
that she return to ex-wife’s home.
2. Contempt O39
Contempt matters are committed to 6. Child Custody O576
the substantial discretion of the trial court Relocation of ex-wife, who had pri-
which, by institutional circumstance and mary physical custody of parties’ children,
both temporal and visual proximity, is infi- to another state constituted material or
nitely more competent to decide the mat- substantial change in circumstances, for
ter than the appellate court is. purposes of determining whether modifica-
tion of custody from ex-wife to ex-husband
3. Contempt O66(7)
was appropriate.
The appellate court will not reverse a
contempt citation where the chancellor’s 7. Child Custody O78
findings are supported by substantial evi- A child who has attained the age of 12
dence. may state his preference to the court as to
4. Child Custody O853 whether he would rather live with his
mother or father; however, the trial court
Trial court’s finding that ex-husband
is not bound to follow the child’s prefer-
was in contempt for violating provision of
ence. West’s A.M.C. § 93–11–65.
parties’ divorce judgment requiring them
to ‘‘foster healthy relationships’’ with their 8. Child Custody O576
children and to cooperate was clearly erro- Evidence supported conclusion that
neous; parties had been granted joint legal material or substantial change in circum-
custody of children, and, as such, ex-hus- stances that resulted from relocation of ex-
band had right to be involved in and to wife, who had primary physical custody of
have opportunity to discuss benefits and parties’ children, to another state had ad-
consequences of re-location with ex-wife, versely affected child, for purposes of de-
ex-wife had intentionally kept ex-husband termining whether modification of custody
out of such discussions, and, while ex-hus- from ex-wife to ex-husband was appropri-
band’s conversation with child might have ate.
been inappropriate, he was not in con-
tempt for doing something that he had 9. Child Custody O76
statutory right to do. West’s A.M.C. The polestar consideration in any
§ 93–5–24(5)(e). child custody matter is the best interest
and welfare of the child.
5. Child Custody O870
There was insufficient evidence to 10. Child Custody O923(4)
support finding of contempt against ex- Reversal of trial court’s order denying
husband on basis that he allegedly con- ex-husband’s motion for modification of
spired and assisted child in not returning physical custody of child from ex-wife to
to ex-wife’s home following her Christmas him was required, where there was over-
visitation with ex-husband; there was no whelming evidence to establish a material
direct or indirect evidence that ex-husband and substantial change of circumstances
knew of or had any part in child’s refusal that adversely affected child, i.e., ex-wife’s
to return to ex-wife’s custody, and evi- relocation with children to another state
IN RE E.C.P. Miss. 811
Cite as 918 So.2d 809 (Miss.App. 2005)

and child’s subsequent disturbing behav- Lawrence Primeaux, Meridian, attorney


ior, and trial court had failed to do an on for appellant in No. 2003-CA-01745-COA.
the record analysis of Albright factors.
Henry Palmer, attorney for appellant in
11. Child Custody O659 No. 2003-CA-02614-COA.
When considering a modification of
Michael David Rhodes, Mark A. Chinn,
child custody, the proper approach is to
Lee Ann Self Turner, Beth Morgan, Jack-
first identify the specific change in circum-
son, attorneys for appellee in No. 2003-CA-
stances, and then analyze and apply the
01745-COA.
Albright factors to determine appropriate
child custody arrangement in light of that Michael David Rhodes, Mark A. Chinn,
change. Jackson, attorneys for appellee in No.
2003-CA-02614-COA.
12. Child Custody O552
Once a material change of circum- Before KING, C.J., IRVING and
stances has been found, the chancellor GRIFFIS, JJ.
should use the Albright factors to decide
which parent should have custody of the
GRIFFIS, J., for the Court.
child.
¶ 1. This case deals with the modification
13. Costs O194.12 of child custody, contempt and the award
Generally, an award of attorney’s fees of attorney’s fees. This case is unusual
is left to the discretion of the trial court. because the minor child, identified as
E.C.P., had an attorney to file a petition
14. Child Custody O852
for modification and to represent her
Ex-wife’s actions of re-locating with throughout the hearing and appeal of this
children to another state without first dis- matter. E.C.P.’s attorney, Lawrence Pri-
cussing relocation with ex-husband, while meaux, filed pleadings on E.C.P.’s behalf
inappropriate, did not constitute contempt and participated in the hearing by examin-
of court, in child custody modification pro- ing witnesses and offering evidence. We
ceeding. find it necessary to protect the privacy and
confidentiality of the matters discussed in
15. Child Custody O916
this opinion. We will refer to the minor
Issue of whether child could be a par-
child as E.C.P., her natural mother as
ty in or commence child custody modifica-
‘‘Mother,’’ and her natural father as ‘‘Fa-
tion proceeding was not properly before
ther.’’
Court of Appeals, in custody modification
proceeding; if the trial court believed that ¶ 2. Father and E.C.P. appeal the deci-
child was not properly before court as a sion of the Chancery Court of Lauderdale
party, or felt that it was inappropriate for County. On appeal, Father argues that:
child to continue as a party, it could have (1) the chancellor erred in holding him in
granted motion to dismiss or appointed a contempt; (2) the chancellor erred in de-
guardian ad litem for child, but did not do nying his motion for modification of custo-
so and, likewise, ex-wife could have appeal- dy; (3) the chancellor erred in awarding
ed from trial court’s ruling enjoining $35,000 in attorney’s fees to Mother; and
child’s attorney from discussing with child (4) the chancellor erred in failing to hold
final outcome of trial, but she did not. Mother in contempt. E.C.P. argues that
812 Miss. 918 SOUTHERN REPORTER, 2d SERIES

the chancellor erred in denying her motion had violated the provision of the property
for modification and erred in enjoining her settlement agreement entitled ‘‘Fostering
attorney from communicating with her re- Healthy Relationships,’’ stating that Fa-
garding the final judgment. ther routinely failed to cooperate with
Procedural History Mother to advance the children’s best in-
terests and attempted to influence the chil-
¶ 3. Father and Mother were married on
dren to live with him.
December 19, 1980. They were divorced
in June of 1999. They had three children. ¶ 9. On August 12, 2002, Father filed his
At the time of the hearing, A.D.P. (a response to the contempt motion and stat-
daughter) was twenty-one and attending ed that Mother influenced, harassed,
college in another state, E.C.P. (a daugh- begged, and pleaded with the children to
ter) was fourteen, and R.R.P. (a son) was agree to move with her to Atlanta. Father
twelve. further alleged that Mother encouraged
the children to deceive him in order to
¶ 4. In the divorce, Father and Mother
prevent him from having visitation.
were granted joint legal custody of all
three children. Mother was granted pri- ¶ 10. On August 22, 2002, the chancellor
mary physical custody of all three children. entered an agreed order setting the hear-
In April of 2000, they executed an agreed ing for September 10, 2002. On August
judgment, and Father was granted sole 30, 2002, the chancellor entered an agreed
physical custody of A.D.P. order resetting the hearing and modifying
visitation. The order modified Father’s
¶ 5. In June of 2002, Mother, along with
visitation with the children, addressed
E.C.P. and R.R.P., moved from Meridian,
transportation of the children for visita-
Mississippi to Atlanta, Georgia. Father,
tion, and specified certain dates for Father
along with A.D.P., remained in Meridian,
to have visitation. The parties also agreed
Mississippi. The details of the move and
to participate in family counseling and to
the facts relevant to this appeal will be
schedule the matter for review or trial in
further developed below.
January of 2003, with all issues raised by
¶ 6. On May 22, 2002, prior to the move, either party not resolved by the agreement
Father filed a motion for modification. He to be protected and raised at the final
alleged that a material change of circum- hearing.
stances had occurred which adversely af-
¶ 11. On December 4, 2002, Father
fected the minor children, E.C.P. and
amended his motion for modification. He
R.R.P. The motion claimed that the move
asserted that E.C.P. and R.R.P. were both
to Atlanta would negatively affect his visi-
twelve years of age and expressed a desire
tation, his obligation to provide health in-
to live with Father. Father had previous-
surance and automobile liability insurance,
ly been awarded sole physical custody of
among other allegations.
A.D.P. and now requested sole physical
¶ 7. The motion for modification was set custody of E.C.P. and R.R.P. or, in the
for hearing on June 27, 2002. However, alternative, that Mother be solely responsi-
Mother filed a motion for continuance re- ble for transportation of the children for
questing that the matter be reset for Au- visitation with Father. On December 10,
gust 20, 2002. 2002, Mother filed her response and a
¶ 8. On July 29, 2002, Mother filed her counter-motion for contempt, alleging that
response along with a counter-motion for Father was in contempt of court and was
contempt. Mother alleged that Father not entitled to seek modification.
IN RE E.C.P. Miss. 813
Cite as 918 So.2d 809 (Miss.App. 2005)

¶ 12. On December 12, 2002, Father E.C.P. to return with her Mother to Atlan-
filed a motion for temporary relief and ta.
requested that the chancellor grant him
¶ 17. On March 4, 2003, Mother filed
temporary custody of E.C.P. and R.R.P.
her answer to E.C.P.’s petition for change
On December 23, 2002, the chancellor en-
of custody, wherein she denied that there
tered an agreed order setting the hearing
was a material change in circumstances
for February 19, 20, and 21, 2003.
adversely affecting E.C.P. and requested
¶ 13. On January 6, 2003, Lawrence that E.C.P.’s petition be denied.
Primeaux, as attorney for and next friend
of E.C.P., filed a petition for change of ¶ 18. The hearing was concluded on
custody. The petition alleged that a mate- June 10, 11, and 12, 2003. On July 9, 2003,
rial change in circumstances had occurred the chancellor issued a memorandum opin-
which adversely affected E.C.P. The mo- ion. On November 6, 2003, the chancellor
tion included allegations of physical con- issued her ruling on the award of attor-
flicts and conditions in Mother’s home, ney’s fees. In essence, the chancellor de-
E.C.P.’s poor performance in school, nied the requests to modify custody, found
E.C.P.’s expulsion from school, and crimi- Father in contempt, and ordered Father to
nal charges filed against E.C.P. The peti- pay Mother $35,000 in attorney’s fees.
tion included a handwritten statement by The chancellor also enjoined Mr. Pri-
E.C.P., in which E.C.P. stated her prefer- meaux, as E.C.P.’s attorney, from discuss-
ence to live with Father and that she ing with her the outcome of the final judg-
refused to return to Mother’s custody fol- ment.
lowing Christmas visitation with Father. ¶ 19. Both Father and E.C.P. have ap-
¶ 14. Also, on January 6, 2003, Mother pealed. The cases were consolidated on
filed a motion for contempt that asked the appeal.
court to hold Father in contempt for refus- ¶ 20. Subsequent to the appeal, the
ing to return E.C.P. following his Christ- chancellor entered an agreed judgment, on
mas visitation. Father filed his answer February 22, 2005, that removed the previ-
and joinder on January 7, 2003, joining ous injunction on Mr. Primeaux and al-
E.C.P.’s petition and supporting her re- lowed him to discuss with E.C.P. the pres-
quest to remain in his custody. On Janu- ent state of litigation.
ary 8, 2003, Mother filed an amended mo-
tion for contempt and emergency relief for ¶ 21. On February 25, 2005, Mother
issuance of writ of habeas corpus or other filed a motion to dismiss E.C.P.’s appellate
appropriate relief. On January 14, 2003, brief. Attached to the motion is an undat-
Father filed his response. ed letter written by E.C.P, which states
the following:
¶ 15. On January 24, 2003, Mother filed
a motion to disqualify Lawrence Primeaux To Whom It May Concern:
as attorney and next friend of E.C.P. Please let it be know [sic] that I no
¶ 16. A hearing was held before the longer want to live with my father. It is
Honorable Sarah Springer, Lauderdale my choice to live in Atlanta with my
County Chancellor, on February 19, 20, mother until I graduate from high
and 21, 2003. At the end of the day on school. I withdraw from the custody
February 21, the chancellor continued the trial.
hearing to June 10, 11 and 12, 2003, and Also, I do not want to be forced to visit
she issued a bench opinion that required my father every other weekend. The
814 Miss. 918 SOUTHERN REPORTER, 2d SERIES

trip takes too much time out of my Instead, Father learned of the move from
schedule, and I’m not able to participate a colleague.
in the activities that I want to. Once a ¶ 27. Prior to the move, Mother led the
month, over holidays and the summer is children to believe that Atlanta would pro-
often enough. vide them better opportunities. E.C.P.
I love both of my parents, and want to testified that her Mother pressured her to
have a good relationship with both of move to Atlanta. Specifically, E.C.P. stat-
them. I do not want to be in the middle. ed,
¶ 22. On March 2, 2005, Mr. Primeaux, [Mother] told me how wonderful [Atlan-
as attorney for and next friend of E.C.P., ta] would be. How many new opportu-
filed a response to the motion to dismiss, nities I would have. How the schools
along with a motion to appoint a guardian are better. That if I lived [in Meridian]
ad litem. I wouldn’t go anywhere. And she said
that I would have—I would have fun.
¶ 23. On February 28, 2005, Father There would be things to do. There is
filed a verified complaint for relief, pursu- amusement parks, bigger malls.
ant to Mississippi Rule of Civil Procedure
E.C.P. stated that as a result of her Moth-
65(b), wherein he requested that the chan-
er’s encouragement, she got excited about
cellor enter a temporary order finding that
the move and thought it would be ‘‘really
E.C.P. should be delivered to a facility
cool to be able to go to Six Flags and do
capable of meeting her necessary physical
fun things like that.’’
and mental health needs. Also, on Febru-
ary 28, 2005, Mr. Primeaux filed a motion ¶ 28. Although Mother claimed the
for appointment of guardian ad litem. move was to ‘‘advance her career opportu-
nities and enable her children to have
¶ 24. A hearing was held on March 7,
more cultural and educational opportuni-
2005, where E.C.P. was placed in an inten-
ties,’’ the chancellor determined that
sive in-patient treatment program and or-
Mother’s real motivation behind the move
dered to remain there for at least thirty
was to distance herself and the children
days. We have no information of the out-
from Father. Prior to the move to Atlan-
come of this treatment.
ta, Father was able to see the children on
Facts Relevant to Appeal a regular basis without disrupting their
¶ 25. Following the divorce in 1999, the schedules. However, after the move, Fa-
children lived with Mother in Meridian. ther was unable to exercise his weekend
The record indicates that both E.C.P. and visitations due to the distance and the
R.R.P. were happy living in Meridian. children’s involvement in extracurricular
They continued to receive good grades at activities.
school. Father testified that R.R.P. made ¶ 29. Following the move to Atlanta,
A’s and B’s throughout his time in Meridi- both E.C.P. and R.R.P.’s grades dropped
an. Father eventually remarried and tes- significantly. R.R.P., who received A’s
tified that the children’s relationship with and B’s in Meridian, received D’s and F’s
his new wife was good. during his first semester in Atlanta.
¶ 26. In June 2002, Mother, along with ¶ 30. E.C.P. began to misbehave. She
E.C.P and R.R.P., moved from Meridian, experimented with illegal drugs, both mar-
Mississippi to Atlanta, Georgia. Mother ijuana and cocaine, and was expelled from
never discussed the move with Father. school after school officials found a knife in
IN RE E.C.P. Miss. 815
Cite as 918 So.2d 809 (Miss.App. 2005)

her locker. E.C.P. and her Mother often Standard of Review


argued. E.C.P. testified that the argu- [1] ¶ 33. This Court will not disturb
ments started ‘‘maybe a month after we the findings of a chancellor when sup-
moved [to Atlanta] or at least as soon as ported by substantial evidence unless the
school started.’’ During the arguments, chancellor abused his or her discretion,
Mother and E.C.P. would call each other was manifestly wrong, clearly erroneous,
names such as ‘‘b* * *h’’ and ‘‘wh* *e.’’ or applied an erroneous legal standard.
During one of the arguments, Mother Sanderson v. Sanderson, 824 So.2d 623,
slapped E.C.P. and ordered her out of the 625–26(¶ 8) (Miss.2002).
house, barefoot in 45 degree weather.
E.C.P. was eventually picked up by the Analysis
police about three miles away from home I. Did the chancellor err in holding
and brought back to Mother. Father in contempt?
¶ 31. In December 2002, following ¶ 34. The chancellor’s judgment found
Christmas visitation with Father, E.C.P Father in contempt for two issues:
refused to return home to her Mother in 18. The Court finds that [Father] is in
Atlanta. E.C.P. testified that she wanted contempt of court for his flagrant
to live in Meridian with her Father. She violations of paragraph 7.4 of the
stated that she gave Atlanta a ‘‘fair Property Settlement Agreement
chance’’ but realized how much she missed made part of the Judgment of Di-
Meridian and all of her friends. E.C.P. vorce.
further testified that she discussed with 19. [Father] is also in contempt of
Mother her desire to live with Father. court for aiding and supporting
When asked how her Mother responded, [E.C.P.] in her decision not to re-
E.C.P. stated, ‘‘[Mother] said that she turn to her mother’s custody after
didn’t want to have anything to do with the Christmas holidays.
me. She didn’t want me to come and visit. We will discuss each of these separately.
That she-you know, she said if I come to A. Property Settlement Agreement,
live in Meridian she doesn’t even want me Paragraph 7.4., Fostering
to work out a visitation schedule because Healthy Relationships.
she wouldn’t want to visit me.’’
¶ 35. Paragraph 7.4 of the Property
¶ 32. E.C.P filed a petition to modify Settlement Agreement, titled ‘‘Fostering
custody alleging that there had been a Healthy Relationships,’’ states:
material change in circumstances to war- The parties shall cooperate with respect
rant a change in custody and that because to the children to advance the children’s
she was of statutory age, her preference to health, emotional and physical well-be-
live with her father should be granted. ing and sense of security. Neither par-
After January 6, E.C.P. remained with her ty shall directly or indirectly influence
Father through the first hearing in Febru- the children so as to prejudice the chil-
ary of 2003. During this time, there was dren against the other parent. The par-
testimony that she had again experimented ents will endeavor to guide the children
with marijuana. After the final day of the to promote an affectionate relationship
hearing in February, the chancellor or- between the children and the other par-
dered E.C.P. to return to Atlanta with ty. They agree not to communicate
Mother, and she did. through the children and they agree not
816 Miss. 918 SOUTHERN REPORTER, 2d SERIES

to ask the children probing questions ¶ 37. In her brief, Mother emphasizes
about the other party. The parties the following sentences: ‘‘Neither party
agree the children should not be ‘placed shall directly or indirectly influence the
in the middle’ between them and their children so as to prejudice the children
disputes. Neither party will interfere against the other parent;’’ and ‘‘The par-
with the rules or disciplinary actions ties agree the children should not be
established by the other for the children. ‘placed in the middle’ between them and
The parties will cooperate with each oth- their disputes.’’ Mother asserts that Fa-
er in carrying out the provision of this ther violated this provision by involving
agreement for the child’s best interest. the children in things they should not have
¶ 36. Mother’s contempt petition alleges been involved in. She claims that in April
that Father’s conduct constitutes a breach of 2002, Father ‘‘insisted in letting the
of this contractual provision.1 The chan- children know how they, the children,
cellor, in her memorandum opinion, ac- would break his heart with their move to
knowledged that ‘‘this provision TTT is Atlanta.’’ She points to a conversation 2
something that all parents should strive between Father and R.R.P., where the
for, and unfortunately, neither parent has following was said:
been able to fully comply with Paragraph Father: You going to stick with me on
7.4 of their property settlement agree- this?
ment.’’ We recognize that the conduct
required by this language does not apply R.R.P.: (No response).
to these parties simply because it was Father: Huh?
included as a provision of their property
R.R.P.: What do you mean ‘‘stick with’’
settlement agreement. Indeed, this provi-
you?
sion simply describes proper conduct that
is expected of all divorced parents. This Father: I mean, are you going to stay
language, albeit reduced to writing in the with Daddy or [sic] you going to
parties’ Property Settlement Agreement, leave Daddy?
imposed no additional duties, responsibili- R.R.P.: Huh?
ties and obligations on the parties to this
action than those that are implied by com- Father: You’re not going to leave Dad-
mon courtesy, decency, good faith, and fair dy, are you?
dealing in all divorce actions. Indeed, all R.R.P.: Daddy?
divorced parents, under the jurisdiction of
Father: Yeah. (Male in background
courts in the State of Mississippi, regard-
talking)
less of whether such language is included
in a property settlement agreement or R.R.P.: I want to try it first and see
judgment of divorce, are required to com- how it is, and I can’t do anything
ply with the conduct discussed in Para- right now because I’m 11. I’ll do it
graph 7.4. when I’m 12.

1. We note that Mother’s brief does not cite 2. The conversation was recorded by Mother
any controlling case law or other legal au- without the knowledge or consent of Father
thority that supports the chancellor’s finding or R.R.P. In Wright v. Stanley, 700 So.2d 274,
that Father was in contempt of court by vio- 279 (Miss.1997), the supreme court held that
lating the terms of Paragraph 7.4. there is ‘‘no prohibition against a custodial
parent recording the conversations of her
children in the custodial home.’’
IN RE E.C.P. Miss. 817
Cite as 918 So.2d 809 (Miss.App. 2005)

Father: What if the Judge said you right to move to Atlanta. See, e.g., Spain
could do it? We could try and do it v. Holland, 483 So.2d 318 (Miss.1986) (di-
now. vorced custodial parent had right to move
R.R.P.: Uhm, Dad. and relocate the child incident to pursuit of
Father: Yeah. reasonable professional or economic oppor-
tunity). However, both Mother and the
R.R.P.: I want to try it first. Okay?
chancellor ignore Mother’s actions leading
You never know until you try.
up to the move. Instead, Mother claims
Father: You’re going to break my heart
that Father should be held in contempt
now.
because he directly or indirectly influenced
R.R.P.: Dad (starts crying)—okay, I’ll the children so as to prejudice the children
stay with you. against her, and he placed the children in
Father: I tell you what, let’s you and I the middle between them and their dis-
talk about it this weekend when putes. Mother argues that he should have
you’re over here. helped his children with the transition and
R.R.P.: Okay (Crying). supported Mother in her decision.
Father: Okay? ¶ 41. Naturally, Father presented rea-
R.R.P.: Okay (Crying). sons and arguments against Mother mov-
Father: I love you. You know that. ing the children to Atlanta. For their
R.R.P.: I love you too (Crying). entire lives, the children had lived in Me-
ridian and called it home. The visitation
¶ 38. Father acknowledged that some
provision, in their Property Settlement
of his comments in this conversation were
Agreement, was based on the fact that
inappropriate. He argues that the com-
they all lived in the same geographic loca-
ment ‘‘you are breaking my heart’’ is inap-
tion.
propriate but not contemptuous. He ex-
plained that he had these conversations so ¶ 42. Father discovered the Mother’s
that the children would have a realistic plan to move, not from Mother but, from a
picture of the implications and potential colleague at his place of work. He subse-
consequences of the move. quently learned that Mother had discussed
the advantages of the move with the chil-
¶ 39. He also points to Section 7.6 of
dren and convinced them how the move
the Property Settlement Agreement, titled
would benefit them. She told E.C.P. and
‘‘Cooperation,’’ which provides:
R.R.P. of the wonderful opportunities that
The parties recognize that it is in the
would be available to them in the Atlanta
best interests of the children that they
area. In fact, prior to the move and prior
cooperate with each other. Neither par-
to Father learning of the move, Mother
ent shall unreasonably schedule reli-
arranged for both E.C.P. and R.R.P. to
gious, school, or social activities for the
attend sessions with Jean Merrill, a psy-
children which unreasonably interfere
chologist. The purpose of the sessions
with the other’s right to physical custo-
was to assist the children with the move.
dy.
Father claims that Mother, likewise, im-
Father claims that Mother’s conduct also properly influenced the children by telling
violated both Sections 7.4 and 7.6. them the glowing benefits of the Atlanta
¶ 40. The primary issue that began this area, without giving them the full picture
dispute was Mother’s decision to move the of the consequences of the move and in-
children to Atlanta. Certainly, she had a forming them of the real effect that the
818 Miss. 918 SOUTHERN REPORTER, 2d SERIES

move would have on the relationship with graph 7.4. Of course, [Mother] would
their father. have had an almost impossible task of
¶ 43. In the memorandum opinion, the proving [Father]’s adverse influence on
chancellor made the following findings of the children had it not been for the
fact and conclusions of law on this issue: taping of the conversationsTTTT
The proof before this Court is uncontro- Despite the parents’ provision in their
verted that in early summer 2002 [Moth- own property settlement agreement,
er] moved [E.C.P.] and [R.R.P.] with her these children have been deeply involved
to the Atlanta, Georgia area. This in the disputes between their parents.
caused considerable conflict between the This situation is damaging the children
parents with regard to visitation issues and must stopTTTT
as [Father] was zealous in his protection In his testimony, [Father] described
of his rights to see his children. Unfor- [Mother]’s decision to move to Atlanta
tunately, in the process of ensuring that as unilateral and benefitting [Mother]
he had adequate time with his children, only and stated it was detrimental to the
the children were exposed to the conflict children and detrimental to his visitation
between the parentsTTTT with the children. He also accused
A review of the conversations tran- [Mother] of being interested in distanc-
scribed in Exhibit 16 does show that ing the children from him. [Father]
there was considerable involvement of described that he was angry, hurt, and
the children in the disputes between frustrated from being excluded from the
[Mother] and [Father]. [Father] said plans to move to Atlanta. He stated
many things to the children which were that when he talked to [Mother] about
inappropriate and which put pressure on the visitation and problems he had with
the children with regard to their visits her move to Atlanta, she was cryptic,
with him. vague and deceptive.
The telephone conversations were re- [Father] described the message that
corded by [Mother] because of her be- [Mother] was giving to the children
lief, which was shown to be true, that about Atlanta as ‘‘it would be a fantastic,
[Father] was manipulating the children. wonderful place. They would have a sea-
It should be noted that in conversations son pass to Six Flags, the neighborhood
which include [Mother]’s comments and would be full of children, there would be
expressions, she was fully aware that lots of opportunities, more personal
her words were being recorded for po- space, a community pool, and private
tential use in the Court action, while bathrooms in the home.’’ He character-
[Father] was not. ized [Mother]’s discussions of the move
[Mother] began taping conversations be- with the children as brainwashing them
tween the children and their father prior to anticipate and enjoy the move and she
to the move to Atlanta. She became was not giving them the full picture of
concerned about the things the children the implications of the move especially
were telling her about these conversa- as it related to their continuing contact
tions, and she testified that the taping with him.
was [E.C.P.]’s idea. This shows there [Father] testified that he wanted the
was a conversation between [Mother] children to have a realistic picture of the
and [E.C.P.] concerning [Father]’s con- implication of the move and admitted
duct, which was a violation of para- trying to get 11 year old [R.R.P.] to
IN RE E.C.P. Miss. 819
Cite as 918 So.2d 809 (Miss.App. 2005)

oppose the move to Atlanta. Knowing [Mother] admitted that she did not dis-
that [E.C.P.] expressed a strong desire cuss the move with [Father] prior to the
to go to Atlanta, he tried to convince her time that the plans were consummated
to stay in Meridian. [Father] felt that and also asserted that she did not en-
[E.C.P.] had been coerced and brain- courage the children to hide the move
washed by her mother. He didn’t tell from their father.
[E.C.P.] that her mother had lied to her Certainly, in considering both [Mother]
and told 11 year old [R.R.P.], ‘‘your and [Father] and their history, the Court
mom is trying to keep you from me.’’ is of the opinion that part of the motiva-
tion for [Mother]’s move may have been
[Father] and [Mother] have joint legal
to distance the children from their fa-
custody of the children. Certainly [Fa-
ther TTTT
ther] should have been fully informed
The Court does find that [Father] is
about [Mother]’s plans to move to At-
guilty of manipulating the children.
lanta, and any opposition [Father] had
[Mother]’s discussions with the children
to the move should have been worked
concerning the benefits of moving to
out between [Mother] and [Father].
Atlanta would be necessary for any par-
[Mother] made up her mind to move,
ent moving children away from a long-
and nothing [Father] said to her once
time home and the Court does not con-
he found out about her intentions served
sider the excitement about the move to
to change her mind. Nevertheless, [Fa-
Atlanta and her description of the bene-
ther] should never have involved the
fits of the move to Atlanta to her chil-
children in opposing their mother’s de- dren to be inappropriate TTTT
cision to move to Atlanta. Knowing
(Emphasis added).
that [Mother]’s mind was made up and
the move was inevitable, he should have [2, 3] ¶ 44. Our standard of review for
helped his children with the transition contempt matters is well settled. ‘‘Con-
and supported their mother in the deci- tempt matters are committed to the sub-
sion that she made, even though he was stantial discretion of the trial court which,
opposed to it. by institutional circumstance and both
temporal and visual proximity, is infinitely
[Mother] is the children’s custodial par- more competent to decide the matter than
ent. She made a decision to move to the we are.’’ Ellis v. Ellis, 840 So.2d 806,
Atlanta area which is her right. Any 811(¶ 16) (Miss.Ct.App.2003) (citing Varner
parent who is moving children to anoth- v. Varner, 666 So.2d 493, 496 (Miss.1995)).
er area would encourage the children to If an order of the court was ignored, then
be excited about the move and this is not the finding of contempt is proper. Id.
‘‘brainwashing.’’ This Court will not reverse a contempt
[Father]’s attitude about [Mother]’s citation where the chancellor’s findings are
move affected his interaction with the supported by substantial evidence. Id.
children and he did not make any at- Here, we find the chancellor’s finding of
tempt to support [Mother] in her deci- contempt, as to this issue, to be manifestly
sion to move when it came to his inter- wrong and clearly erroneous.
action with the children. In fact, his [4] ¶ 45. The chancellor’s decision
conversations in Exhibit 16 show that he contains a contradiction. In one para-
did all he could to put a negative spin on graph, she finds that the parents share
the moveTTTT ‘‘joint legal custody’’ and in the next she
820 Miss. 918 SOUTHERN REPORTER, 2d SERIES

finds that Mother is ‘‘the children’s custo- lead to the conclusion that Mother clearly
dial parent.’’ The chancellor, therefore, violated her ‘‘obligation to exchange infor-
concludes that since Mother has sole phys- mation’’ about the children’s education and
ical custody then her decision to move is welfare and to allow Father to ‘‘share in
final, and her exclusion of Father from the the decision-making rights.’’
discussion and decision-making process is ¶ 47. Mother testified that one of the
permissible. We disagree. There is im- reasons to move to Atlanta was for the
portant legal significance in the order that educational opportunities that it afforded
granted Father ‘‘joint legal custody.’’ This the children. Certainly, the relocation of
may not be overlooked. the children would affect their ‘‘welfare.’’
¶ 46. The record reveals that Mother Because he had joint legal custody of both
and Father share joint ‘‘legal custody,’’ E.C.P. and R.R.P., Father was entitled to
and Mother has sole ‘‘physical custody.’’ share in the ‘‘decision-making rights, the
These terms are defined by statute in Sec- responsibilities and the authority relating
tion 93–5–24 of the Mississippi Code Anno- to the TTT education and welfare TTT’’ of
tated. ‘‘Joint legal custody’’ means that: both E.C.P. and R.R.P. As a joint legal
the parents or parties must share the custodian of the children, Father had a
decision-making rights, the responsibili- right to be involved in and to have an
ties and the authority relating to the opportunity to discuss the benefits and
health, education and welfare of a child. consequences of the relocation.3 The fact
An award of joint legal custody obligates that Mother kept Father out of the discus-
the parties to exchange information con- sions, by her conscious design and plan,
cerning the health, education and wel- should not prevent the children’s father
fare of the minor child, and to confer from sharing his opinions, thoughts and
with one another in the exercise of deci- concerns about matters that affect their
sion-making rights, responsibilities and education and welfare.
authority. ¶ 48. Based on the fact that Father
Miss.Code Ann. § 93–5–24(5)(e) (Rev.2004) was the joint legal custodian of the chil-
(emphasis added). The chancellor ac- dren and that Sections 7.4 and 7.6 of the
knowledged that the Mother’s actions de- Property Settlement Agreement required
prived Father of his opportunity to partici- the parties to ‘‘foster healthy relation-
pate in the discussions about the move to ships’’ and to cooperate, we find that the
Atlanta. As a result, this finding can only chancellor was manifestly wrong and

3. The chancellor recognized the divorce cre- conversation that may manipulate the chil-
ated hard feelings between these parties. dren if she had only first attempted to honor
This occurs often. The parent with joint legal the provisions of Section 7.4 and 7.6 of the
custody may not be the party that makes a Property Settlement Agreement and discussed
final decision about where the children live, the potential for a move with Father. Mother
but the parent that does not have physical could have attempted to work through a joint
custody does have a right to be aware of discussion with the children that allows both
information that may affect the health, edu- Mother and Father to discuss both the advan-
cation, and welfare, and he/she has the right tages and disadvantages of the move with the
to express his/her thoughts, feelings and opin- children. Mother consciously chose not to
ions about the decision that is to be made. include Father and clearly took advantage of
Here, Mother could have avoided the need the fact that she had sole physical custody of
to surreptitiously record conversations be- the children. She had a responsibility to al-
tween Father and the children or be con- low Father an opportunity to be involved in
cerned about Father having an inappropriate the decision that was to be made.
IN RE E.C.P. Miss. 821
Cite as 918 So.2d 809 (Miss.App. 2005)

clearly erroneous in her conclusion that [E.C.P.] should not have been placed
Father violated Paragraph 7.4 of the in a position that she was encouraged
Property Settlement Agreement and that and supported in her disobedience to her
he should be held in contempt. While we mother. [Father]’s conduct in fostering
agree that the Father’s conversation may this attitude in this child and supporting
have been inappropriate, we cannot find this position of his child even to the
that he is in contempt for doing something extend of hiring her a separate attorney
that he has a statutory right to do. The does constitute contempt of this Court.
chancellor was in error to overlook or ig-
¶ 52. To make this finding, the chancel-
nore the fact that Mother intentionally de-
lor relied on letters written in December
prived Father of his statutory and con-
of 2002 by Father and Dr. Ken Schneider
tractual rights to share in the decisions
to the Meridian School District and the
that related to E.C.P.’s and R.R.P.’s edu-
Lauderdale County School District stating
cation and welfare and then to allow her
that E.C.P would be enrolling in school in
to use these very same statutory and con-
Meridian as soon as January of 2003.
tractual rights to hold Father in contempt.
Hence, we cannot find a basis upon which ¶ 53. As discussed in the procedural
to sustain the chancellor’s determination history, several motions for modification
that Father’s conversations with E.C.P had been on file since mid-year in 2002.
and R.R.P. were either flagrant or con- The December 30, 2002 agreed order set-
temptuous. ting the case for trial clearly states that
¶ 49. For these reasons, we reverse and the ‘‘temporary hearing scheduled for Jan-
render the chancellor’s finding that Father uary 6, 2003 is continued.’’ Father argues
was in contempt for violating Section 7.4 of that he anticipated that the custody of
the Property Settlement Agreement. E.C.P. would be litigated, during the Janu-
ary 6 hearing, and that he needed to testi-
B. Aiding and supporting E.C.P. in fy as to what arrangements had been
her decision not to return to her made concerning his educational plans for
mother’s custody after the Christ- the children if the court decided to change
mas holidays. custody at the January 6 hearing. He
¶ 50. The chancellor also found Father argues that he had reasonable confidence
in contempt for conspiring and assisting that the modification would be granted
E.C.P in not returning to her Mother’s because both E.C.P. and R.R.P. had ex-
after Christmas. Father argues that there pressed their preference to live with him
is no evidence of such conspiracy and con- and due to E.C.P.’s behavioral difficulties
tends that E.C.P.’s decision not to return while she lived in Atlanta. The language
to Mother’s was solely her idea. of the letters is consistent with Father’s
expectation that the children’s preference
¶ 51. The chancellor found that:
would be granted by the chancellor.
It is obvious from the proof before the
Court that this was a plan of action that ¶ 54. E.C.P. testified that she first told
commenced in November 2002, and her father of her preference to live with
[Mother] was not made aware of it until him during his Thanksgiving visitation in
January 5th, 2003, when she was on her 2002. E.C.P. arrived for her Christmas
way to pick up [E.C.P.] and [R.R.P.] visitation on December 26, 2002. Both
after their Christmas holiday with their E.C.P. and Father testified that on Janu-
father. ary 5, E.C.P. announced that she was not
822 Miss. 918 SOUTHERN REPORTER, 2d SERIES

going to return to Atlanta, and she ¶ 56. We find that there is insufficient
planned to stay and live with her father. evidence to support a finding that Father
Father contacted Mother and revealed is responsible for or should be held in
E.C.P.’s announcement. Father also testi- contempt for conspiring and assisting
fied that he understood that she must re- E.C.P in not returning to Mother’s after
turn to Mother but that he could not get Christmas. Accordingly, we reverse and
E.C.P. to get in the car to return to her render the chancellor’s finding of contempt
mother. Father took E.C.P., and met on this issue.
Mother, at the Meridian Police Depart-
ment to enlist the assistance of law en- C. Contempt punishment.
forcement. The police officers apparently ¶ 57. As a remedy or punishment for
explained that E.C.P. should return with the contempt, the chancellor ordered that
her Mother or that she could face place- Father be required to participate in and
ment in juvenile detention. Father enlist- pay for counseling. If he failed to comply,
ed the assistance of an attorney, Mr. Pri- the chancellor stated that she would en-
meaux, to counsel with and assist E.C.P. force this sanction by incarcerating Fa-
and Dr. Schneider. Mr. Primeaux’s coun- ther. We must state that we too believe
sel appeared necessary due to the concern that this family, like many others going
that E.C.P.’s decision could result in her through the same situation, would benefit
immediate incarceration in juvenile deten- from professional counseling to assist them
tion. On January 6, 2003, Mr. Primeaux with the issues that they face. However,
filed pleadings on behalf of E.C.P. The because we have reversed and rendered
chancellor allowed Mr. Primeaux to partic- the chancellor’s findings of contempt, we
ipate in the hearing as E.C.P.’s counsel. must also reverse and render the sanctions
[5] ¶ 55. We find that there is simply contained in paragraphs 9 through 14 of
no evidence to support the chancellor’s the chancellor’s judgment.
finding. Indeed, there is no direct or indi-
II. Did the chancellor err in denying
rect evidence that Father knew of or had
Father’s motion for modification of
any part in E.C.P.’s refusal to return to
custody?
Mother’s custody. Instead, the evidence
indicated that Father sought the aid, ser- ¶ 58. The standard for appellate review
vices and support of law enforcement, an of modification actions and the elements
attorney and a psychologist to try to get necessary to establish a modification were
E.C.P. to comply with the court’s order. summarized in Mabus v. Mabus, 847 So.2d
There is no evidence that would infer that 815, 818(¶ 8) (Miss.2003), where Justice
Father did anything other than attempt to Carlson wrote:
comply with the court’s decree on visita- In a case disputing child custody, the
tion. Clearly, the chancellor’s opinion and chancellor’s findings will not be reversed
ultimate finding is based on the fact that unless manifestly wrong, clearly errone-
she considered E.C.P. to be an indepen- ous, or the proper legal standard was
dent, strong willed and rebellious teenager not applied. Hensarling v. Hensarling,
who was misbehaving. There is no evi- 824 So.2d 583, 587 (Miss.2002). See also
dence to support a finding that Father Wright v. Stanley, 700 So.2d 274, 280
encouraged or advanced E.C.P.’s an- (Miss.1997); Williams v. Williams, 656
nouncement that she wanted to stay with So.2d 325, 330 (Miss.1995). The burden
her Father. of proof is on the movant to show by a
IN RE E.C.P. Miss. 823
Cite as 918 So.2d 809 (Miss.App. 2005)

preponderance of the evidence that a cordingly, we will review whether the


material change in circumstances has oc- chancellor committed manifest error or
curred in the custodial home. Riley v. was clearly erroneous in failing to find (1)
Doerner, 677 So.2d 740, 743 (Miss.1996). that there was a substantial or material
In the ordinary modification proceeding, change in circumstances, (2) that this
the non-custodial party must prove: (1) change adversely affected the child, and
that a substantial change in circum- (3) that a modification was in the best
stances has transpired since issuance of interests of the child.
the custody decree; (2) that this change
adversely affects the child’s welfare; A. Substantial or material change of
and (3) that the child’s best interests circumstances.
mandate a change of custody. Bubac v. [6] ¶ 60. Father argues that the chan-
Boston, 600 So.2d 951, 955 (Miss.1992). cellor erred in denying his motion for mod-
* * * ification of custody. Father cites to
In considering whether there has been E.C.P.’s behavior as proof of a material
such a change in circumstances, the to- and substantial change in circumstances
tality of the circumstances should be that has adversely affected her. He
considered. (Spain v. Holland, 483 claims that since moving with Mother to
So.2d 318, 320 (Miss.1986)). Even Atlanta, E.C.P. has experimented with
though under the totality of the circum- drugs (marijuana and cocaine), has run
stances a change has occurred, the court away from home on two separate occa-
must separately and affirmatively deter- sions, and was expelled from school. He
mine that this change is one which ad- also argues that since the move both
versely affects the children. Id. Brede- E.C.P. and R.R.P. have obtained poor
meier v. Jackson, 689 So.2d 770, 775 grades in school.
(Miss.1997). Furthermore, it is well set- ¶ 61. In Spain, the supreme court held
tled that the polestar consideration in that a divorced custodial parent had the
any child custody matter is the best right to move and relocate the children in
interest and welfare of the child. Al- order to pursue a reasonable professional
bright v. Albright, 437 So.2d 1003, 1005 or economic opportunity. Spain, 483
(Miss.1983). So.2d at 320. The court recognized that
¶ 59. Here, as is often done by chancel- the chancellor had determined that a move
lor’s in modification decisions, the chancel- out of the country was indeed a material
lor did not separate her findings of fact change of circumstances. However, the
and conclusions of law in a three step supreme court’s finding was based on its
analysis. Instead, the chancellor found, conclusion that the chancellor was correct
‘‘[b]ased on all of the evidence reviewed by in finding that there was no adverse effect
this Court, it is clear that [Father] has on the children. Id. The court held:
failed to show that there is a material and We need be clear what we mean by the
substantial change of circumstances ad- phrase ‘‘adverse effect’’. These children
versely affecting the minor children such have already been adversely affected by
that their best interest would be served by the inability of their mother and father
their placement in his custody.’’ Hence, to live together which led to the 1983
the chancellor’s opinion does not allow us divorce. Beyond this, most children of
to determine which step(s) of the three divorced parents will be further adverse-
step analysis Father failed to prove. Ac- ly affected if the two parents are living
824 Miss. 918 SOUTHERN REPORTER, 2d SERIES

in the same town at the time of the sent to an alternative school for the re-
divorce and either subsequently moves mainder of the semester. E.C.P also be-
thousands of miles away. Where such gan to experiment with illegal drugs. She
occurs we solve nothing by shifting cus- has admitted to trying marijuana and co-
tody to the parent staying at home for, caine with her friends in Atlanta. Subse-
in theory at least, a transcontinental quently, after she returned to Meridian,
separation from either parent will ad- she also admitted to once using marijuana.
versely affect the child. The judicial eye
in such cases searches for adverse ef- ¶ 65. Of more concern, however, E.C.P.,
fects beyond those created (a) by the Mother, and Dr. Schneider testified about
divorce and (b) by the geographical sep- the confrontational and volatile nature of
aration from one parent. the mother-daughter relationship. The
Id. at 320–21. From this, we are of the record contains many vulgar curse words,
opinion that the Mother’s move to Atlanta some of which we choose not to reprint,
was indeed a material or substantial that Mother and daughter used towards
change of circumstances. each other. E.C.P. has clearly lost respect
for her mother. E.C.P., in her testimony,
[7] ¶ 62. In addition, Father contends
repeatedly referred to Mother by her first
that the chancellor failed to consider
name. As a result of their conflicts,
E.C.P.’s preference to live with him. Mis-
E.C.P. twice ran away from her Atlanta
sissippi Code Annotated Section 93–11–65
home. Fortunately, she was returned un-
(Rev.2004) allows a child who has attained
harmed by police.
the age of 12 to state her preference to the
court as to whether she would rather live ¶ 66. Based on the overwhelming abun-
with her mother or father. However, the dance of this evidence which clearly indi-
trial court is not bound to follow the child’s cates that the move to Atlanta had an
preference. See Polk v. Polk, 589 So.2d adverse effect on E.C.P., we find that the
123 (Miss.1991). Furthermore, we have chancellor was manifestly wrong and clear-
found no authority to support a conclusion ly erroneous in her decision that the mate-
that a child’s statement, in and of itself, of rial change of circumstances did not ad-
his or her preference to live with the non- versely affect E.C.P.
custodial parent would rise to the level of a
material or substantial change of circum-
C. Best interest of the child.
stances.
[9] ¶ 67. In Mabus, Justice Carlson
B. Adversely affecting the child. again holds that it is ‘‘well settled that the
[8] ¶ 63. While a move may be consid- polestar consideration in any child custody
ered a material or substantial change of matter is the best interest and welfare of
circumstance, the more important determi- the child. Albright v. Albright, 437 So.2d
nation is whether there was an adverse 1003, 1005 (Miss.1983).’’ Mabus, 847 So.2d
affect on the child that occurred as a re- at 818(¶ 8). Our chancellors must fully
sult. On this issue, the evidence is over- and thoroughly review the Albright factors
whelming, and the chancellor recognized to determine the initial custody placement
that E.C.P.’s behavior was very disturbing. of the children. Often, in modification
¶ 64. Shortly after moving to Atlanta, matters, the review of the first two steps
E.C.P. was expelled from her school for can make the third step almost unneces-
having contraband in her locker. She was sary.
IN RE E.C.P. Miss. 825
Cite as 918 So.2d 809 (Miss.App. 2005)

¶ 68. Here, however, the decision of ¶ 70. Based on our finding that there
what is in the best interest of the child is was overwhelming evidence to establish
unclear. In her memorandum opinion, the that there was a material and substantial
chancellor found that: change of circumstances that adversely af-
Placing these children in [Father’s] cus- fected the child, we reverse and remand
tody would only serve to show a rebel- this issue for the chancellor to conduct an
lious 14 year old that she can get her Albright hearing and to issue the appropri-
way against her mother and has no need ate findings of fact and conclusions of law.
to comply with her mother’s reasonable
discipline considering the actions in
III. Did the chancellor err in award-
which this child has engaged. She
ing attorney’s fees to Mother?
should not be awarded her desires in
this instance. [13] ¶ 71. Generally, the award of at-
The chancellor believed that E.C.P.’s mis- torney’s fees is left to the discretion of the
behavior was simply an act of natural teen- trial court. Cheatham v. Cheatham, 537
age rebellion. So.2d 435, 440 (Miss.1988). Since we have
[10–12] ¶ 69. Yet, both the chancellor reversed and rendered the chancellor’s
and this Court have recognized very dis- finding of contempt and reversed and re-
turbing behavior by E.C.P. It may well be manded for further proceedings on the
that her actions were the result of natural modification, we reverse and remand the
teenage rebellion. The proper vehicle by award of attorney’s fees for further consid-
which to arrive at that conclusion is the eration of the chancellor consistent with
Albright factors.4 When considering a the findings of this Court.
modification of child custody, the proper
approach is to first identify the specific IV. Did the chancellor err in failing to
change in circumstances, and then analyze hold Mother in contempt?
and apply the Albright factors in light of
that change. Thornell v. Thornell, 860 ¶ 72. Father asserts that the chancellor
So.2d 1241, 1243(¶ 6) (Miss.Ct.App.2003). erred in failing to hold Mother in con-
Once a material change of circumstances tempt. He claims that Mother violated
has been found, the chancellor should use Section 7.6 of the property settlement
the Albright factors to decide which parent agreement. Father relies on telephone
should have custody of the child. See conversations between himself and the
Mixon v. Sharp, 853 So.2d 834, 839(¶ 19) children, which were recorded by Mother
(Miss.Ct.App.2003); Sturgis v. Sturgis, 792 without his knowledge. The chancellor
So.2d 1020, 1025(¶ 19) (Miss.Ct.App.2001). found that since Mother testified that the
Because the chancellor failed to identify a taping was E.C.P.’s idea, ‘‘[t]his shows
specific change in circumstances that ad- there was a conversation between Mother
versely affected the child and then do an and E.C.P. concerning Father’s conduct,
on the record analysis of each of the Al- which was a violation of paragraph 7.4.’’
bright factors, we are compelled to re- However, the chancellor goes on to note
verse. See Thornell, 860 So.2d at that had it not been for the taping of the
1243(¶ 8). conversations, ‘‘Mother would have had an

4. The chancellor’s memorandum opinion dis- wanted to live with Father. Dr. Schneider
cussed one of the Albright factors, the prefer- testified that R.R.P. expressed his preference
ence of the child. E.C.P. testified that she to live with Father.
826 Miss. 918 SOUTHERN REPORTER, 2d SERIES

almost impossible task of proving Father’s is of the opinion that she should not
adverse influence on the children.’’ have access to this opinion and should
¶ 73. Father also relies on E.C.P.’s in- not be allowed to confer with legal coun-
volvement in cheerleading as an example sel about its meanings and implications.
of Mother’s violation of Section 7.6. Fa- The Court is of the opinion that her
ther alleges that Mother intentionally parents should inform her of the basic
scheduled E.C.P. to participate in a cheer- ruling of the Court, and that she should
leading group that met every Sunday af- not be allowed to review the Court’s
ternoon, thereby conflicting with his visita- ruling.
tion. However, Section 7.6 prohibits only The Court had an on-the-record confer-
unreasonably scheduled activities that un- ence with the attorney’s [sic] in this
reasonably interfere with visitation. A action on June 25, 2003. The Court is
teenage girl’s participation in cheerleading hesitant to interfere with the relation-
is not unreasonable. ship between a litigant and her lawyer,
but as this child’s greater guardian, the
[14] ¶ 74. Father further relies on the
Court must act in her best interest.
fact that Mother moved to Atlanta without
Therefore, attorney Larry Primeaux is
first discussing it with him as evidence of
ordered and directed that he is not to
contempt. We have previously discussed
confer in any way, form or manner with
this issue. We again conclude that there
[E.C.P.] concerning this or related litiga-
was evidence to show that Mother’s actions
tion without the express written permis-
were inappropriate. However, we do not
sion of both [Mother] and [Father].
find that her conduct rises to the level of
contempt. Therefore, we affirm the chan- ¶ 77. At the beginning of the trial in
cellor’s finding that Mother was not in this matter, Mother objected to E.C.P.’s
contempt of court. involvement in the litigation and asked
that she be dismissed as a party. The
E.C.P.’S Appeal chancellor overruled Mother’s objection
I. Did the chancellor err in denying and also overruled Mother’s request that
E.C.P.’s request for modification of E.C.P.’s petition for change of custody be
custody? dismissed. As a result, E.C.P participated
as a party in this matter through her
¶ 75. As we have adequately discussed counsel, Mr. Primeaux.
this issue above, we find no reason to
repeat it. We take notice of the letter ¶ 78. There is no discussion in the
written to this Court. On remand, the briefs that the chancellor erred in allowing
chancellor will have the opportunity to con- Mr. Primeaux to participate in the hearing.
sider it in her determination. Indeed, Mother’s brief does not address
the substance of this issue, and she cites
II. Did the chancellor err in enjoining no legal authority. Mother simply attacks
E.C.P.’s counsel from communicat- this issue on the ground that Mr. Pri-
ing with her regarding the final meaux violated the chancellor’s order by
judgment? filing the brief.
¶ 76. In her memorandum opinion, the [15] ¶ 79. E.C.P. cites Article 3, Sec-
chancellor stated the following: tion 25 of the Mississippi Constitution,
Although [E.C.P.] has her own attorney, which states that ‘‘[n]o person shall be
hired and paid by her father, the Court debarred from prosecuting or defending
IN RE E.C.P. Miss. 827
Cite as 918 So.2d 809 (Miss.App. 2005)

any civil cause for or against him or her- fied complaint for relief where he asked
self, before any tribunal in the state, by the chancellor to enter a temporary order
him or herself, or counsel, or both.’’ The finding that E.C.P. should be delivered to
chancellor’s order enjoining E.C.P.’s coun- a facility capable of meeting her necessary
sel from discussing with her the final out- physical and mental health needs. On the
come of the trial effectively prevented same date, Mr. Primeaux filed a motion for
E.C.P. from further prosecuting the civil appointment of guardian ad litem.
action brought by her through counsel. ¶ 83. We are also advised that a hear-
Further, the chancellor’s action denied ing was held on March 7, 2005, where
E.C.P. access to legal advice from the at- E.C.P. was ordered to be placed in an
torney who represented her throughout intensive in-patient treatment program
the trial. If the chancellor believed that and to remain for at least thirty days. We
E.C.P. was not properly before the court have no information of the outcome of this
as a party, or felt that it was inappropriate treatment.
for E.C.P. to continue as a party, she could
¶ 84. On remand, we encourage that the
have granted the motion to dismiss or
chancellor appoint an independent guard-
appointed a guardian ad litem. Likewise,
ian ad litem to represent the interests of
Mother could have appealed from this rul-
E.C.P.
ing but she did not. Accordingly, the issue
of whether a child may be a party in or ¶ 85. THE JUDGMENT OF THE
commence a modification proceeding is not CHANCERY COURT OF LAUDER-
before us. DALE COUNTY FINDING FATHER IN
CONTEMPT OF COURT IS RE-
¶ 80. The February 22, 2005 agreed
VERSED AND RENDERED. THE
order removed the previous injunction on
JUDGMENT FAILING TO FIND
Mr. Primeaux and allowed him to discuss
MOTHER IN CONTEMPT OF COURT
with E.C.P. the present state of litigation.
IS AFFIRMED. THE JUDGMENT
Therefore, we find this issue moot.
AWARDING ATTORNEY’S FEES TO
¶ 81. We must, however, add that this MOTHER IS REVERSED AND RE-
would have been a valuable opportunity for MANDED. THE JUDGMENT DENY-
the chancellor to appoint a guardian ad ING FATHER’S AND E.C.P.’S MOTION
litem for E.C.P. and tax all costs to the FOR MODIFICATION OF CUSTODY
parties. Unfortunately, the record has IS HEREBY REVERSED AND RE-
many references which indicate that Moth- MANDED. THE JUDGMENT ENJOIN-
er, and at times the chancellor, believed ING COUNSEL FOR E.C.P. FROM
Mr. Primeaux was simply another attorney COMMUNICATING WITH HER RE-
working for Father. Here, the parties had GARDING THE FINAL JUDGMENT IS
the funds necessary to hire an independent DETERMINED TO BE MOOT. ALL
guardian ad litem. We do not believe it is COSTS OF THIS APPEAL ARE AS-
necessary or appropriate for a child to be SESSED TO APPELLEE.
represented by counsel in a domestic mat-
ter. The interests of the child could be KING, C.J., BRIDGES AND LEE,
more adequately and effectively protected P.JJ., IRVING, MYERS, CHANDLER,
through the appointment of an indepen- BARNES AND ISHEE, JJ., CONCUR.
dent guardian ad litem.
¶ 82. Since the appeal, we recognize
that additional proceedings have occurred. ,
On February 28, 2005, Father filed a veri-