IN THE SUPREME COURT OF MISSISSIPPI
NO. 2004-CT-00088-SCT
GINGER M. McSWAIN (HARTFIELD)
v.
CHARLES C. McSWAIN
ON WRIT OF CERTIORARI
DATE OF JUDGMENT: 09/16/2003
TRIAL JUDGE: HON. JAMES H. C. THOMAS, JR.
COURT FROM WHICH APPEALED: LAMAR COUNTY CHANCERY COURT
ATTORNEY FOR APPELLANT: WILLIAM E. ANDREWS, III
ATTORNEY FOR APPELLEE: JAMES R. HAYDEN
NATURE OF THE CASE: CIVIL - DOMESTIC RELATIONS
DISPOSITION: THE JUDGMENT OF THE COURT OF
APPEALS IS REVERSED. THE
JUDGMENT OF THE LAMAR COUNTY
CHANCERY COURT IS REINSTATED
AND AFFIRMED - 12/14/2006
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
EN BANC.
COBB, PRESIDING JUSTICE, FOR THE COURT:
¶1. The Lamar County Chancery Court, in a hearing for modification of child custody,
held that custody should be transferred from the mother, Ginger M. McSwain Hartfield 1 , to
the father, Charles C. McSwain. The Court of Appeals reversed, finding that the chancellor
had erred in considering Ginger’s past behavior and the possibility of future improvident
behavior in determining whether there had been a material change in circumstances that had
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Ginger has remarried and taken the last name of her husband, Joe Hartfield.
adversely affected their child, Miller McSwain. We hold that there was no abuse of
discretion by the chancellor; and therefore, we reverse the judgment of the Court of Appeals
and affirm the chancellor’s judgment.
FACTS AND CHANCERY COURT PROCEEDINGS
¶2. Charles and Ginger McSwain were married in 1997, and Miller was born in October,
1998. The couple filed for an irreconcilable differences divorce in April of 2000 in the
Lamar County Chancery Court. In the settlement agreement, they agreed to joint legal
custody of Miller with Ginger having primary physical custody.2 The judgment was final on
September 14, 2000.
¶3. In February 2001, Ginger married Joe Hartfield. The trial evidence shows that the
marriage was strained from the beginning. Hartfield and Ginger engaged in arguments and
fights that sometimes erupted into physical violence as well.3 On at least one occasion, the
violence rose to such a level that the police had to be called.
¶4. Hartfield testified that he believed Ginger’s actions to be the result of her alcoholism.
He also spoke of Ginger’s problems with depression and the negative effect that her drinking
2
Although it is a phrase commonly used by lawyers and judges, there is no provision
under Miss. Code Ann. Section 93-5-24 for “primary” physical custody. That section sets
forth the various combinations of physical and legal custody, but with regard to physical
custody, it only provides for joint physical custody, and physical custody in one parent or
another. See Rush v. Rush, 932 So. 2d 794, 796 (Miss. 2006).
3
The physical violence included one occasion on which Ginger ripped Mr. Hartfield’s
shirt off. On another occasion, Ginger drew a knife on him. There was also an occasion
where Ginger threw a laptop into the windshield of Mr. Hartfield’s car. Miller was forced
to witness many of these fights and was upset by them.
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had on her medication. On one occasion, Hartfield, frightened by Ginger’s actions, left with
Miller and took him to the home of Hartfield’s mother.
¶5. In July 2002 Ginger began using cocaine with her neighbor, Ramona. Ginger
admitted that by September, she and Ramona were using cocaine frequently. She also
admitted that Miller would go with her to Ramona’s house when she was using cocaine, but
she denied ever using cocaine “in front of him.” 4 Ginger did admit to drinking a few times
a week in front of Miller.5
¶6. In late September of 2002, Ginger voluntarily admitted herself into the Jolimar
Wellness Institute (Jolimar) for drug and alcohol rehabilitation. Ginger, Hartfield, and
Charles McSwain agreed privately that Charles would have physical possession of Miller for
the duration of Ginger’s stay at Jolimar. On October 22, 2002, Ginger completed a 28-day
primary care program at Jolimar, and then stayed in an extended care program which she
completed on November 22, 2002. However, she attended the weekly aftercare program
only until February, 2003, notwithstanding Jolimar’s discharge evaluation and aftercare
recommendation that she attend aftercare groups for two years.
¶7. On November 5, 2002, before Ginger had completed her extended care program,
Charles filed a petition for modification and emergency hearing without notice in the Lamar
County Chancery Court, seeking permanent modification of child custody. On that day, the
4
Ginger said that she would leave Miller in one room while she and Ramona went
into the bathroom and smoked the cocaine using a pipe.
5
Ginger testified that when she would drink in front of Miller, she referred to the
alcohol that she was drinking as “hot coffee.”
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chancellor granted temporary physical custody of Miller to Charles in an ex parte emergency
temporary order. On November 13, Ginger moved to set aside the temporary order, and the
chancellor modified the temporary order to allow Ginger weekend visitation beginning
November 15, 2002.
¶8. Between December 10, 2002, and January 31, 2003, the chancellor entered three
additional temporary orders which increased Miller’s time with Ginger, on a alternating
basis. The trial was set for March 12, 2003, but when a subpoenaed witness failed to appear,
the matter was continued. Once again, the chancellor entered a temporary order regarding
Miller, which alternated his physical possession between Charles and Ginger on a weekly
basis until the date of trial.
¶9. The trial took place August 25 and 26, 2003. Final judgment was issued September
16, 2003, continuing joint legal custody, but transferring physical custody of Miller from
Ginger to Charles, and granting “every reasonable visitation” to Ginger, albeit within a
specific schedule. In support of his decision, the chancellor cited that Ginger is an admitted
drug and alcohol addict who is currently on medication for depression. The chancellor found
that Ginger has had suicidal thoughts and suffers from the usual negative feelings that
accompany drug and alcohol abuse. It was also found that there is still friction between
Ginger and Hartfield in their marriage. Ginger’s continued association with Ramona, the
neighbor who had supplied Ginger with cocaine, was of particular concern to the chancellor.
¶10. The judgment also reflected the chancellor’s concerns that Ginger had not attended
the suggested aftercare for her rehabilitation. Ginger’s counselor at Jolimar testified that he
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believed Ginger would seek help if she lost control of her actions. The chancellor stated that
Ginger’s past inability to control her actions would not make for a good circumstance for a
child dependant on Ginger making important decisions.
¶11. Although it was recognized that Charles had been married four times and used alcohol
regularly,6 the chancellor found that Charles had a more stable home environment. To
support this position, the chancellor pointed out that Charles worked from his home, had a
comfortable income and was currently in a stable marriage.
¶12. With these findings, the chancellor determined that there had been a material change
in circumstances which had an adverse impact on Miller. The chancellor then tracked the
factors set forth in Albright v. Albright, 437 So. 2d 1003 (Miss. 1983), as he evaluated the
facts and circumstances to determine whether it was in Miller’s best interest to remain in the
custody of his mother, or whether it would be best for Miller to be in his father’s custody.
The chancellor then awarded custody of Miller to Charles McSwain, giving Ginger
reasonable visitation rights.
PROCEEDINGS IN THE COURT OF APPEALS
¶13. On direct appeal, the Court of Appeals reversed and rendered with respect to the
chancellor’s decision to modify custody of Miller, holding that the chancellor had abused his
discretion by “focus[ing] on the potential for future problems rather than the presently-
6
His undisputed testimony was that he does drink occasionally, and that in the past
year he may have bought “three or four cases of beer, so one, two beers a week.”
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existing circumstances of Miller’s home life.” McSwain v. McSwain, 2005 Miss. App.
LEXIS 833 at ¶13 (Miss. Ct. App. 2005).
ANALYSIS
I. Standard of Review
¶14. This Court laid out the standard for reviewing a chancellor’s decision in a child
custody case in Mabus v. Mabus, 847 So. 2d 815 (Miss. 2003). “In a case disputing child
custody, the chancellor’s findings will not be reversed unless manifestly wrong, clearly
erroneous, or the proper legal standard was not applied.” Id. at 818.
II. Evidence of material change in circumstances
¶15. In a modification proceeding, the burden is on the non-custodial parent to prove by
a preponderance of the evidence: “(1) that a substantial change in circumstances has
transpired since issuance of the custody decree; (2) that this change adversely affects the
child’s welfare; and (3) that the child’s best interests mandate a change of custody.” Id.
(citing Bubac v. Boston, 600 So. 2d 951, 955 (Miss. 1992)).
¶16. The crux of the Court of Appeals’ analysis was that the material changes in
circumstances in Miller’s home life that would have an adverse affect on Miller were not
continuous and no longer existed at the time of the trial. “[T]he chancellor should find that
the overall circumstances in which a child lives have materially changed and are likely to
remain materially changed for the foreseeable future.” McSwain, 2005 WL 2979678 at ¶
12 (quoting Tucker v. Tucker, 453 So. 2d 1294, 1297 (Miss. 1984)) (emphasis in original).
The Court of Appeals stated that the chancellor abused his discretion because he focused on
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the potential for future problems rather than presently-existing circumstances and, because
Ginger was drug and alcohol free at the time of the hearing, the material change in
circumstances was not contemporaneous and could not mandate a change of custody. Id. at
¶13. The Court of Appeals went on to say that it appeared “that the chancellor mistakenly
used past misconduct on Ginger’s part to trigger a re-weighing of the Albright factors.” Id.
at ¶15.
¶17. This Court recently dealt with a very similar case in Johnson v. Gray, 859 So. 2d
1006 (Miss. 2003), where a mother (Johnson) appealed a chancellor’s order that custody of
her child be transferred from her to her ex-husband, the child’s natural father (Gray).
Johnson was an alcoholic, had at least one car accident where she was driving under the
influence of alcohol, and even had an incident where she got into a fight with her boyfriend
and knocked a window out of his truck. Id. at 1008-09. However, as in the case presently
before the Court, Johnson sought treatment from a rehabilitation facility and was released
prior the custody hearing in her case, and she was attending aftercare twice every week. Id.
at 1014-15. She had also married, started attending church, and was building a home before
the hearing. Id. Under the Court of Appeals’ reasoning, Johnson should have retained
custody of her child. However, this Court upheld the chancellor’s decision to transfer
custody from Johnson to Gray, stating that “hardly enough time” had passed “to determine
if [Johnson] [would] be able to remain sober.” Id. at 1015. This Court upheld the
chancellor’s decision to use the possibility of a future relapse as a factor weighing against
Johnson.
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¶18. Here, the chancellor cited numerous reasons for his decision to modify custody of
Miller. The factors considered included Ginger’s depression and the fact that she had
suicidal thoughts. Ginger’s drug and alcohol addiction, her failure to attend aftercare, and
the fact that Ginger still associates with her former drug partner also weighed heavily in the
chancellor’s decision.
¶19. The Court of Appeals held that because Ginger was not using drugs or alcohol at the
time of the hearing, Ginger’s addiction could not be considered a continuing change in
circumstance. However, by Ginger’s own admission on the witness stand, she will always
be an addict, and, as the chancellor mentioned in his judgment, she continues to suffer from
the negative feelings that accompany an addiction. Ginger’s drug addiction transpired after
the custody arrangement to which she and Charles agreed was incorporated into their
irreconcilable differences divorce decree. It is most certainly a material change that
adversely affects Miller, and because her drug addiction is something that Ginger will likely
have to endure for years, if not the rest of her life, it continues. Ginger’s drug addiction
satisfies the first two prongs of the test for modification of child custody.
¶20. Also cited by the chancellor was the discord in Ginger’s marriage with Joe Hartfield.
The Court of Appeals stated that because the tension between Hartfield and Ginger at the
time of trial “was not as fierce and contentious as it had previously been,” that the
circumstances that might have mandated a change in custody had subsided. McSwain, 2005
WL 2979678 at ¶17. As discussed earlier, the fights that took place between Hartfield and
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Ginger were often extremely heated and very violent. These types of fights constituted a
material change in circumstances that would adversely affect Miller.
¶21. Taken in the aggregate, the factors considered by the chancellor obviously constitute
sufficient circumstances to warrant a change in custody would be in Miller’s best interests.
The chancellor thoroughly examined the evidence and made a finding of fact using the
Albright factors. He determined that Miller’s best interests would be served by a
modification of the original custody agreement, and awarded custody of Miller to Charles
McSwain. We find no error in this regard.
III. Modification of custody
¶22. This Court has been very clear about the amount of deference that chancellors are to
receive in making a factual determination. “[W]e, as an appellate court, will affirm the
decree if the record shows any ground upon which the decision my be justified ...We will not
arbitrarily substitute our judgment for that of the chancellor who is in the best position to
evaluate all factors relating to the best interest of the child.” Tucker, 453 So. 2d at 1296
(quoting Yates v. Yates, 284 So. 2d 46, 47 (Miss. 1973)). In the present case, there was
sufficient evidence for the chancellor to find that a change of custody was in Miller’s best
interest. A review of the record and the judgment reveals no manifest wrong, clear error, or
improper legal analysis, and the ruling of the chancellor was reasonable under the facts.
CONCLUSION
¶23. Chancellors are in the best position to make a determination based on the facts
presented to them at trial. In this case, the chancellor stated that Ginger was a good mother
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who made a bad choice. Unfortunately, the choices that Ginger made will affect her and her
family for a very long time. The chancellor weighed the facts in this case and made a ruling
based on those facts, and this Court will not second guess that ruling. Therefore, the
judgment of the Court of Appeals is reversed, and the judgment of the Lamar County
Chancery Court is affirmed.
¶24. THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED. THE
JUDGMENT OF THE CHANCERY COURT OF LAMAR COUNTY IS
REINSTATED AND AFFIRMED.
SMITH, C.J., WALLER, P.J., DIAZ, EASLEY, CARLSON, DICKINSON AND
RANDOLPH, JJ., CONCUR. GRAVES, J., DISSENTS WITHOUT SEPARATE
WRITTEN OPINION.
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