Meagan Phillips v. Richard Phillips;

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

NO. 2019-CA-00394-COA

MEAGAN PHILLIPS APPELLANT

v.

RICHARD PHILLIPS APPELLEE

DATE OF JUDGMENT: 01/31/2019
TRIAL JUDGE: HON. FRANKLIN C. McKENZIE JR.
COURT FROM WHICH APPEALED: JONES COUNTY CHANCERY COURT,
SECOND JUDICIAL DISTRICT
ATTORNEYS FOR APPELLANT: TERRY L. CAVES
JOSEPH MASON WOOD
ATTORNEYS FOR APPELLEE: BARRON CRUZ GRAY
THOMAS T. BUCHANAN
NATURE OF THE CASE: CIVIL - CUSTODY
DISPOSITION: REVERSED AND RENDERED - 09/15/2020
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

BEFORE CARLTON, P.J., WESTBROOKS AND LAWRENCE, JJ.

WESTBROOKS, J., FOR THE COURT:

¶1. Meagan Phillips and Richard Phillips entered into an agreed order of modification on

or about June 23, 2017. The agreed order of modification allowed for the parties’ two minor

children to move to New York with Richard and pursue acting careers and related training.

The agreed order allowed the parties to evaluate the minor children’s progress after one year.

The parties could not reach an agreement as to visitation and asked the chancery court to

intervene. The chancellor modified custody without finding any material change in

circumstances adversely affecting the children and without conducting an Albright1 analysis.

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Albright v. Albright, 437 So. 2d 1003 (Miss. 1983).
Aggrieved by the chancellor’s decision, Meagan appeals. Finding that the chancellor

committed reversible error by modifying custody without a finding of a material change in

circumstances adversely affecting the children or conducting an Albright analysis, we reverse

and render the chancellor’s order.

FACTS AND PROCEDURAL HISTORY

¶2. Meagan and Richard were divorced on July 20, 2015, citing irreconcilable differences.

The parties shared physical and legal custody of their two minor children, K.P. (born in

2007), and T.P. (born in 2009). In 2016, Meagan enrolled their two sons in an acting program

in Clinton, Mississippi. Meagan and Richard began talking about how to allow their sons to

further pursue acting. In June 2017 Meagan and Richard agreed to send their children to a

film academy in New York, New York. On June 23, 2017, the chancellor signed off on the

parties’ mutually agreed upon order of modification.

¶3. The order of modification stated that Richard would be allowed to take the children

to New York for one year beginning July 1, 2017. While in New York, the children would

attend a film academy and pursue acting full-time. Richard would be responsible for all costs

associated with the care of the minor children while in New York. Meagan would be allowed

to visit the children anytime she desired. Meagan was responsible for any costs associated

with her travel to and from New York. The agreement further stated that either child was free

to change his mind about living in New York and return to Mississippi. At the end of one

year, the parties would “re-evaluate the children’s living arrangement.” In effect, the

agreement expired after one year, and absent another mutual agreement, the parties would

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revert to the previous custody agreement.

¶4. Richard and the parties’ two minor sons moved to New York. Pursuant to the

agreement, Richard home-schooled both children during this time.2 After three months,

Meagan decided she no longer wanted the boys to remain in New York. On September 8,

2017, Meagan filed a motion to set aside the agreed order of modification. On February 26,

2018, Meagan filed a motion to set aside the agreed order of modification and other related

relief.3 On March 15, 2018, Richard filed a counter-complaint for re-evaluation pursuant to

the agreed order of modification of June 23, 2017.4

¶5. A hearing was held on July 18, 2018, to review the agreed order of modification. The

chancellor noted that the parties voluntarily entered into the subject agreed order. In his

ruling from the bench, the chancellor stated that “[u]nder the terms of the agreement, the

parties were supposed to discuss the arrangement at the end of one year. Obviously, that

didn’t happen so this Court is called upon to intervene and decide what’s in the best interest

of these children.” The chancellor heard testimony from Meagan, Richard, and both children

that Meagan only went to New York once during the year to visit her children. The

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The record is clear, based upon the testimony at the July 18, 2018 hearing, that both
children were progressing academically. In fact, according to test results, the children tested
at a higher level than their grade level.
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In the motion, Meagan alleged that Richard sold land owned by the parties that was
to be used for the benefit of the children. Richard stated that he did not sell the land but
instead sold some timber on the property to pay for the children’s training in New York.
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Richard stated that the children were doing well in New York and wanted to abide
by the decision to stay in New York for the year.

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chancellor also noted that the children were not being told to avoid their mother, as Meagan

claimed during her testimony. The testimony was clear that the children regularly spoke with

their mother by phone. It was also clear that both children were adjusting well to the home

school program. In fact, test scores illustrated that they were progressing ahead of schedule

with their education.

¶6. The chancellor found that “it is also clear, Meagan admits, that the children are

enjoying their time in New York. They do not want to return to Mississippi. They want to

continue to stay in New York and pursue an acting career.” The chancellor noted that the

evidence supported letting the children stay in New York because “[t]hey have been in acting

schools. They have been in various productions. They have earned money from their acting.”

The chancellor concluded that “the children are doing well in their chosen career. They are

making progress. That’s what they want to do. I’m going to let them continue to do that.”

¶7. The chancellor ended the hearing by addressing visitation:

Now the problem we have is visitation with the mother. The plane tickets are
expensive. I want you attorneys to sit down and confer with each other and
with your clients and try to figure out a schedule when the children can come
to Mississippi to visit with their mother and how you’re going to share the cost
of that transportation.

Actually, it’s going to be easier for Meagan to go to New York to visit with the
children than for them to come down here. It’ll be less expensive if she’s the
only one flying.

So I don’t have a solution for you on that. The original agreement was that
Meagan could come to see them anytime she wanted to in New York. And so
she made it. I didn’t. That’s the ruling of the Court.

The chancellor did not set the terms for Meagan’s visitation. The parties were directed to

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work out an agreement. The chancellor did not enter any final judgment or written order.

¶8. On or about November 9, 2018, Meagan filed a motion for the court to determine

visitation. In paragraph 2 of the motion, Meagan states that “the COURT instructed the

parties to work out the movant’s visitation with the minor children.” The motion states in

paragraph 3 that “all other provisions of the agreed order of modification of June 23, 2017

remain in full force and effect.” It is clear from this motion that the only issue remaining

between the parties as of November 9, 2018, was visitation. Paragraph 4 of Meagan’s motion

states that “after attempts to resolve the issue of visitation, the parties are unable to reach an

agreement and it has become necessary for the court to decide said issue.” A hearing on the

issue of visitation, as specifically raised in Meagan’s motion, was held on December 13,

2018.

¶9. At the conclusion of the hearing, the chancellor stated, “[A]ll right. Here’s what we’re

going to do, we’ll follow through with the Christmas visitation. He’ll pay for the tickets for

that. Thereafter, once a month they come to Mississippi to visit with their mother and the

parties share the cost of the tickets.” Regarding visitation by phone, Meagan argued that she

was unable to speak with the children by phone. The chancellor found no evidence of this

and stated specifically, “I’m seeing communication that she’s having with the children.”

Meagan’s attorney wanted something more specific on the record concerning telephone

communication and the chancellor obliged by stating, “I just ruled. She can call them anytime

she wants to. She doesn’t have to ask his permission.”

¶10. On January 20, 2019, the chancellor entered an order concerning visitation, which was

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requested by Meagan in her motion. The chancellor’s order functioned as a permanent

modification of custody. Aggrieved, Meagan filed her notice of appeal on February 27, 2019

seeking appellate review of “Order of Modification [66] entered by the Clerk of this Court

on January 31, 2019 in the above-referenced cause.”

STANDARD OF REVIEW

¶11. “This Court will not disturb a chancellor’s findings of fact when supported by

substantial evidence unless the [chancery court] abused [its] discretion, was manifestly

wrong, clearly erroneous, or an erroneous legal standard was applied.” Anderson v.

Anderson, 8 So. 3d 264, 267 (¶7) (Miss. Ct. App. 2009). “However, questions of law are

reviewed de novo.” Id.

DISCUSSION

¶12. Meagan filed her notice of appeal on February 27, 2019, seeking appellate review of

“Order of Modification (66) entered by the Clerk of this Court on January 31, 2019 in the

above-referenced cause.” On appeal Meagan claims the chancellor erred in modifying

custody. Specifically, Meagan argues the chancellor committed reversible error by modifying

custody in July 2018 and giving Richard primary physical custody of the two children.

Meagan argues the chancellor applied an erroneous legal standard, failed to find a material

change in circumstances that adversely affected the minor children, and failed to properly

apply the Albright factors. Richard argues that the hearing on December 13, 2018, and

subsequent order filed on January 31, 2019, did not modify custody.

¶13. “When this Court reviews domestic relations matters, our scope of review is limited

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by the substantial evidence/manifest error rule.” Giannaris v. Giannaris, 960 So. 2d 462, 467

(¶8) (Miss. 2007). “Therefore, we will not disturb the findings of a chancellor unless the

chancellor was manifestly wrong, clearly erroneous or an erroneous legal standard was

applied.” Id. (Internal quotation mark omitted).

¶14. Our Supreme Court has stated: “The test for modification of child custody is: (1)

whether there has been a material change in circumstances which adversely affects the

welfare of the child and (2) whether the best interest of the child requires a change of

custody.” Id. At 467-68 (¶10) (footnotes omitted) (emphasis omitted)). The Supreme Court

has further held that these are not optional requirements. See Lackey v. Fuller, 755 So. 2d

1083, 1088 (¶24) (Miss. 2000).

¶15. Mississippi courts will reverse a decision when a chancellor fails to follow the “test”

or “prerequisites” discussed above:

[T]his Court reversed a chancellor’s decision to modify child custody, because
the chancellor failed to identify a specific change in circumstances that
adversely affected the welfare of the child, and the chancellor failed to conduct
an on-the-record analysis of the Albright factors. This Court concluded that it
was appropriate to reverse the chancellor’s judgment and remand the matter
to the chancellor for further proceedings.

Roberts v. Roberts, 110 So. 3d 820, 830 (¶31) (Miss. Ct. App. 2013). Likewise, in Johnson

v. Johnson, 913 So. 2d 368 (Miss. Ct. App. 2005), this Court held:

Regardless of the terminology utilized in the order, the trial court’s order in
essence modified the original decree as to custody. We are unwilling to hold
that a chancellor may modify custody without finding the requirements of a
substantial and material change in circumstances that adversely affects the
child’s welfare.

Id. at 371 (¶11). The same requirements apply in cases in which the parties initially share

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joint physical custody. Porter v. Porter, 23 So. 3d 438, 447 (¶23) (Miss. 2009).

¶16. Prior to June 2017, the parties shared joint physical and legal custody of their two

minor children. The June 2017 “Agreed Order of Modification” was effectively a temporary

modification of physical custody. The order was temporary because it allowed Richard to

take the children to New York for one year only. This temporary modification of custody

expired by its own terms on July 1, 2018. “At the conclusion of the one-year period, being

on July 1, 2018, the parties [were to] re-evaluate the living arrangements of the children.” In

essence, after one year, the parties agreed to either extend the modification or revert to the

terms of the original agreement. The chancellor, by allowing the children to remain in New

York, made a temporary order permanent. Similar to Johnson, discussed above, this was in

effect a permanent modification of the parties’ original custody agreement.

¶17. After hearing the parties’ arguments, the chancellor permanently modified custody—

by granting Richard physical custody—without first finding any material change in

circumstances that adversely affected the minor children. In the absence of a new agreement

by the parties, the temporary order simply expired on July 1, 2018, and custody of the

children should have returned to the status quo under the original divorce decree, i.e., joint

physical and legal custody. We are required to reverse the modification of custody due to the

chancellor’s failure to find any material change in circumstances having an adverse effect

on the minor children and the absence of an Albright analysis.

¶18. We reverse the decision of the chancellor and render that custody return to that of the

parties’ original judgment of divorce, i.e., joint physical and legal custody.

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¶19. REVERSED AND RENDERED.

BARNES, C.J., CARLTON AND WILSON, P.JJ., GREENLEE, McDONALD,
LAWRENCE AND McCARTY, JJ., CONCUR.

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