IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2024-CA-01208-COA
SUNNY DAY BUSKIRK APPELLANT
v.
DAN HALL HODGE, III APPELLEE
DATE OF JUDGMENT: 09/24/2024
TRIAL JUDGE: HON. J. DEWAYNE THOMAS
COURT FROM WHICH APPEALED: HINDS COUNTY CHANCERY COURT,
SECOND JUDICIAL DISTRICT
ATTORNEY FOR APPELLANT: JARED FRANK EVANS
ATTORNEYS FOR APPELLEE: JOHN S. GRANT IV
JEREMY PAUL McNINCH
BROOKE TRUSTY GRANT
BRITTNEY NICOLE MILLS
NATURE OF THE CASE: CIVIL - CUSTODY
DISPOSITION: AFFIRMED - 08/18/2026
MOTION FOR REHEARING FILED:
BEFORE BARNES, C.J., McDONALD AND WEDDLE, JJ.
BARNES, C.J., FOR THE COURT:
¶1. This case involves a child-custody dispute between unmarried parents, Sunny Day
Buskirk and Dan Hodge III, over their minor male child, S.H., who was born in 2014.1 After
adjudicating paternity, the Hinds County Chancery Court awarded Buskirk sole legal and
physical custody of the child, but Hodge has sought increased visitation with the child over
the past ten years. The basis of this appeal is the Hinds County Chancery Court’s judgment
from September 24, 2024, in which the court granted Hodge’s motion seeking joint legal
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Initials are used to protect the minor child’s identity.
custody and extended visitation with S.H.
¶2. Buskirk appeals the court’s judgment. Finding no manifest error in the chancery
court’s ruling, we affirm.
Facts and Procedural History
¶3. On October 20, 2015, the chancery court entered an agreed order of paternity, which
adjudicated Hodge as S.H.’s natural father and granted Buskirk sole physical and legal
custody of S.H. Because Hodge had a history of substance abuse, he was only permitted
alternating weekend visitation under the supervision of Hodge’s parents. Hodge was also
ordered to pay monthly child support and provide health insurance coverage for the minor
child. In accordance with Uniform Chancery Court Rule 8.06(B), the parties were ordered
to notify one another of any change in address.
¶4. On February 16, 2016, Hodge filed a petition for contempt with the chancery court,
alleging that Buskirk had not allowed him visitation and had failed to provide him the child’s
medical and educational records. Buskirk counterclaimed that Hodge was in contempt for
failing to pay his portion of medical expenses for the child, failing to pay child support in
certain months, and failing to maintain health insurance for the child. A guardian ad litem
was appointed, and a trial was held in April 2019.
¶5. On July 23, 2019, the chancery court entered its order, allowing Hodge unsupervised
visitation with S.H. because Hodge had been sober for more than two years, and Hodge’s
parents were frequently unavailable to supervise visitation. The court noted that “it is in the
best interests of [the child] to establish a healthy, loving relationship with his father.” While
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the chancery court denied the parties’ petitions for contempt,2 the court did instruct Buskirk
to keep Hodge informed of the child’s activities and appointments and not to withhold
visitation without the court’s approval.
¶6. Hodge filed a petition for modification of visitation on March 6, 2020. After several
continuances requested by the parties, a trial was held on May 19-20, 2022, after which the
chancery court directed the parties to submit proposed findings of fact and conclusions of law
solely on the issue of visitation.
¶7. In an August 2022 order, the chancellor fashioned a visitation schedule that he
believed “to be a reasonable and workable solution to allow meaningful time with the minor
child and both parents,” factoring in “the particular mental, physical, and emotional well
being and needs of the minor child.” Noting Buskirk had acknowledged “that the minor
child needs additional time with [Hodge],” the chancellor modified visitation such that
Hodge’s alternating-weekend visitation began on Friday afternoons after school and
continued through Sunday evenings. The chancellor also awarded Hodge extended weekend
visitation during school holidays. The former holiday visitation schedule was replaced with
a more specific schedule, alternating years for most major holidays, which allowed both
parents to have time on Thanksgiving, Christmas, and the child’s birthday every year. Hodge
was also granted four weeks of summer visitation with S.H. Lastly, the chancellor urged the
parties to “cooperate and communicate regarding all aspects of the minor child’s physical,
mental, and emotional health.” Buskirk filed a motion to alter or amend the order, which the
2
The court noted that any arrearage of child support and lapse in health insurance had been satisfied; so Hodge had purged himself of contempt.
3
court denied.
¶8. On November 17, 2022, the chancery court held a trial on the remaining “Petitions and
Counter-Petitions seeking citations for contempt and modification.” Both parties submitted
proposed findings, and the court entered an order on February 6, 2023. The court found that
Buskirk had denied Hodge visitation on three weekends in April 2020. However, the court
declined to find Buskirk in contempt, noting that while Buskirk “admitted that she denied
visitation on these occasions due to her concerns with COVID-19 and the minor child’s
asthma,” the mother testified that “she offered ‘make-up’ visitation times to [Hodge,] and he
exercised the same.” The court admonished Buskirk that “visitation should not be withheld
without an appropriate court order even if ‘makeup’ visitation is offered.”
¶9. Although Buskirk had “failed to advise [Hodge] of school changes on three (3)
occasions, failed to provide any information on the child’s education, failed to provide
information for the minor child’s medical services, and failed to inform him that the minor
child was visiting Canopy [Children’s Solutions],” the court declined to find Buskirk in
contempt because Hodge had also “failed to comply with the procedure to receive such
information.” Due to the parties’ failure to communicate effectively, the chancery court
ordered the parties to utilize the “Our Family Wizard program” for all correspondence, unless
an emergency arose.
¶10. Buskirk filed a motion to alter or amend the order under Rule 59 of the Mississippi
Rules of Civil Procedure. On April 12, 2023, the chancery court denied Buskirk’s motion,
noting that she had “failed to advise Hodge of three (3) separate changes in schools” and had
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failed to provide Hodge with information about the child’s health and education. Finally, the
chancery court warned both parties that the failure to comply with the court’s directive to use
the “Our Family Wizard program shall be considered a violation of this Court’s Order and
may be considered as willful and contumacious contempt.”
¶11. On June 29, 2023, Hodge filed a complaint to modify custody, which is the origin of
this appeal. In the complaint, Hodge sought “primary” physical and legal custody or,
alternatively, joint physical and legal custody of S.H. Specifically, Hodge claimed that since
2019, “there have been unforeseeable, substantial, material changes of circumstances in
[Buskirk’s] home, which adversely impact [S.H.],” i.e., Buskirk’s “recent insistence on
involuntarily committing the minor child against his will, traumatizing the child
unnecessarily, . . . while actively slandering [Hodge] and blocking him from access to
medical professionals for the child and access to the child.” In the event his request for
modification of custody was unsuccessful, Hodge sought additional visitation (both
physically and telephonically) with S.H. Hodge also asked that the chancery court find
Buskirk in contempt, claiming she had “actively gone out of her way to prevent and block
[him] from having access to any medical information or treatment plans regarding the minor
child.”
¶12. On the day Hodge filed his complaint, Buskirk filed a notice of change of address.
Two weeks later, Buskirk answered and filed a counterclaim, denying there had been any
material change to warrant modification. Buskirk also sought dismissal of Hodge’s claims,
asserting they were precluded by res judicata and collateral estoppel. Alternatively, she
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argued that the matter “should be limited to only those issues, facts, and circumstances”
having arisen after the court’s most recent February 2023 order.
¶13. A motions hearing was held on September 5, 2023. The court subsequently denied
Buskirk’s motion to dismiss on October 12, 2023. In its decision, the court declined
Buskirk’s request to limit the time frame to be considered, citing the Mississippi Supreme
Court’s holding in Smith v. Todd, 464 So. 2d 1155, 1157 (Miss. 1985), that “the chancellor
must allow full and complete proof with respect to all circumstances and conditions directly
or indirectly related to the care and custody of the children, existing at the time of the original
divorce decree and at the time of the modification hearing.”
May 16, 2024 Bench Trial
A. Dr. Taban Salem
¶14. Hodge called Dr. Taban Salem as an expert witness in the fields of clinical psychology
and counseling. Dr. Salem, who had performed a “comprehensive psycho-educational
assessment” of S.H., introduced her December 27, 2023 assessment that stated S.H. was
previously diagnosed with attention-deficit hyperactivity disorder (ADHD) and oppositional
defiant disorder (ODD). However, Dr. Salem testified that, based on her observation, S.H.
does not meet the criteria for ODD. S.H. reported to Dr. Salem that he enjoyed spending
time with both parents. The assessment noted that the “parents have had longstanding issues
with communication and their interaction style is contentious.” For this reason, Dr. Salem
recommended the family participate in “family psychotherapy at a minimum of every other
week.”
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¶15. Dr. Salem’s report adds that S.H. “began medication management with Canopy
Children’s Solutions at around age 4, and he has been receiving services from Canopy in the
form of medication management and/or psychotherapy ever since.” In addition, Dr. Salem
recounted that S.H. “made a comment in March 2023 about wanting to harm himself.” After
this incident, S.H. “stayed one week at Three Circles (the acute inpatient psychiatric unit at
Children’s of Mississippi).” Dr. Salem was unaware of any further “incident[s] of this type.”
B. Dan Hodge III
¶16. Hodge testified that he filed the petition to modify custody because Buskirk was
preventing him from “having a relationship with [his] child.” He noted that at one point he
was “able to talk to [his] son at will,” but since “the last time we were here . . . and then now
I can’t talk to my kid on the phone.” He clarified on cross-examination, “The only maybe
three or four times in the past year that I’ve been able to FaceTime with my son is when my
son has been able to call my wife’s phone.”
¶17. Particularly, Hodge was upset because Buskirk had committed S.H. to the University
of Mississippi Medical Center’s “3 Circle” psychiatric floor for a week. Hodge said that in
March 2023, after a teacher asked S.H. to get a notebook, the child would not comply and
threatened to cut himself. The school informed Hodge of the incident (as it was his weekend
to have visitation), and Hodge alerted Buskirk, who insisted on taking S.H. to the hospital.
Hodge wanted to talk to the child first, as the child appeared to Hodge to be “happy” and was
not distressed. Hodge testified that when the nurse practitioner asked the intake questions,
Buskirk “fill[ed] out the intake forms that I have a history of abusing my child and that I’m
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an alcoholic, drug addict and all this garbage in front of my kid.” Hodge insisted that S.H.
was not in jeopardy of harming himself. However, after the staff talked with Buskirk further,
S.H. was committed to the psychiatric floor for a week. Because Hodge did not have legal
custody, the hospital would not give him any information. And when Hodge visited S.H.
after a couple of days, Hodge said, “He was fine. I mean, there was nothing wrong with him
other than the fact he didn’t understand why he was having to stay on this floor away from
his family.” Hodge also noted that when S.H. was four, Buskirk had checked S.H. into 3
Circle because “she alleged that he took a baseball bat to the house and tried to commit
homicide on his sister and her.”
¶18. After the hospital identified no issues with S.H. other than his ADHD, Hodge made
an appointment to obtain a second opinion about the child’s mental health with Dr. Salem
at Killebrew Psychological Services. However, Buskirk sent a cease-and-desist letter to the
clinic noting Hodge’s lack of legal custody. Since February 2023, Hodge said he had been
unable to access information from Canopy, where the child had been treated. Hodge
explained, “I didn’t want to put undue stress on my child,” so he called to make an
appointment to meet “one-on-one . . . to understand what [S.H.] was being treated for, what
the medications were for . . . his treatment plan.” However, when he arrived at the facility
for the appointment, the receptionist was talking with Buskirk on the phone. Because Hodge
had “no legal custody,” the provider could not speak to him. Hodge asked for joint legal
custody simply to obtain a right to S.H.’s medical records.
C. David Wilson
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¶19. David Wilson testified as an expert in child and adult forensic psychology. From his
interactions with the parties, he observed: “I honestly don’t think I have to tell this judge or
anyone else the miscommunication and somewhat of a dysfunction that, you know, the
parents have with each other[.]” He recommended that the parties would benefit from family
counseling.
D. Sunny Buskirk
¶20. Buskirk testified she has moved only one time since February 6, 2023, when she
moved from Madison to Brandon, which required S.H. to change schools. She said she
moved because S.H. likes to swim, so they “had to move to get a pool.” Buskirk testified
S.H. was doing well at his new school and that it had a good special-education program.
Buskirk noted that at the time, Canopy was doing “all of [S.H.’s] medication management
and therapy.”
¶21. Buskirk denied that she had prevented Hodge from speaking to S.H., saying, “I am
not trying to keep [S.H.] from his father. I don’t know why he keeps saying that.” She noted
that the child has the knowledge to initiate a FaceTime call to his father. On crossexamination, Buskirk agreed that “everybody needs to come together and do what’s best for
[S.H.]” She also said that if the child wanted “to talk with [his father] ten times in one day,
[she was] fine with that,” and she did not have a problem with the court “identify[ing] a
schedule” where either she or Hodge could call S.H. Buskirk admitted she had prevented
Hodge from getting a second opinion about the child’s mental health, reasoning that “[S.H.]
does not like to go to therapy. . . . He just doesn’t want to do it.”
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September 24, 2024 Final Judgment
¶22. The chancery court entered a final order on September 24, 2024, granting in part and
denying in part Hodge’s complaint for modification and citation for contempt. The court
ordered that both parties and the minor child were to “engage in family counseling every
other week” with Dr. Salem and that the minor child was to continue his individual therapy.
With regard to modification of custody, the chancery court found that Buskirk had (1)
“actively thwarted Plaintiff’s attempts to engage and co-parent the minor child,” (2) “refused
to comply with” the chancery court’s orders regarding communication with Hodge, (3)
“intentionally withheld from [Hodge] information concerning the minor child’s health and
school,” (4) “moved numerous times without advising [Hodge] of changes in address or
school,” (5) prevented Hodge from being able to communicate with S.H. freely, and (6)
“attempted to prevent [Hodge] from being a father to the minor child.” Therefore, the court
concluded that the mother’s “actions in attempting to deny the minor child reasonable
visitation and communication with his father is a material change in circumstances that is
adversely affecting the child.”
¶23. After considering the Albright factors,3 the court vested Hodge with joint legal
3
In Albright v. Albright, 437 So. 2d 1003, 1005 (Miss. 1983), the Mississippi Supreme Court outlined the factors for a trial court to consider in determining the best interest of the child in custody matters. Those factors are: (1) age, health, and sex of the child; (2) continuity of care prior to the separation; (3) parenting skills and the willingness and capacity to provide primary child care; (4) employment of the parent and responsibilities of that employment; (5) the physical and mental health and age of the parents; (6) the emotional ties of parent and child; (7) the moral fitness of the parents; (8) the home, school, and community record of the child; (9) the preference of the child at the age sufficient to express a preference by law; (10) the stability of the home environment and employment of each parent; and (11) other factors relevant to the parent-child relationship. Id.
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custody of the child and expanded Hodge’s alternating weekend visitation to begin at 6:00
p.m. on Wednesday (rather than on Friday) when S.H. is not in school.4 The court also
granted Hodge additional visitation in the form of fifteen minutes of electronic
communication with the child every other day, if feasible, when the child is with Buskirk.
The parties’ contempt claims were dismissed with prejudice.
¶24. Buskirk filed a posttrial motion on October 7, 2024, arguing that the court’s finding
of an adverse material change was against the evidence and that the court’s exclusion of
certain evidence had unfairly affected the outcome. The court denied the motion on
December 3, 2024, finding that Buskirk was trying to “relitigate this matter due to her
dissatisfaction with the Court’s ruling.”
¶25. Buskirk appeals the final judgment and the order denying her posttrial relief.5
Discussion
I. Whether the chancery court erred in granting Hodge joint legal
custody and additional visitation.
¶26. “Matters involving child custody are within the sound discretion of the chancellor.”
Heisinger v. Riley, 243 So. 3d 248, 256 (¶30) (Miss. Ct. App. 2018). This Court has a
limited standard of review of a chancery court’s decision to modify custody based on a
material change in circumstances. Culver v. Culver, 371 So. 3d 726, 729 (¶6) (Miss. Ct.
4
When S.H. is attending school, Hodge is to continue to pick up the child after school on Fridays on alternating weekends, as stated in prior orders.
5
While not challenged on appeal, the chancery court granted Buskirk’s motion to amend the order with regard to the counseling requirement, and the court asked the parties to submit names of qualified family counselors to the court unless the parties agreed on a counselor.
11
App. 2019). “We will not disturb a court’s findings ‘when supported by substantial evidence
unless the chancery court abused its discretion, was manifestly wrong or clearly erroneous,
or an erroneous legal standard was applied.’” Id. (quoting In re C.T., 228 So. 3d 311, 315
(¶6) (Miss. Ct. App. 2017)). We employ a de novo review of the court’s “interpretation and
application of the law.” Id.
A. Material Change in Circumstances Adversely Affecting
the Child
¶27. “A modification of custody is warranted when the moving parent successfully shows
(1) that a material change of circumstances has occurred in the custodial home since the most
recent custody decree, (2) that the change adversely affects the child, and (3) that
modification is in the best interest of the child.” Voss v. Doughty, 242 So. 3d 952, 956-57
(¶13) (Miss. Ct. App. 2018). “The party seeking the modification bears the burden of proof
by a preponderance of the evidence.” Warner v. Thomas, 281 So. 3d 216, 222 (¶18) (Miss.
Ct. App. 2019). “In making this determination, the totality of circumstances must be
considered [by the court].” Ellis v. Ellis, 952 So. 2d 982, 990 (¶17) (Miss. Ct. App. 2006)
(citing Ash v. Ash, 622 So. 2d 1264, 1266 (Miss. 1993)).
¶28. In the final judgment, the chancery court concluded:
In the case at hand, the Court finds that Defendant has actively thwarted
Plaintiff’s attempts to engage and co-parent the minor child. Defendant has
refused to comply with this Court’s Orders regarding communication, has
intentionally withheld from Plaintiff information concerning the minor child’s
health and school, has moved numerous times without advising Plaintiff of
changes in address or school, has prevented Plaintiff from freely
communicating with the minor child and has attempted to prevent Plaintiff
from being a father to the minor child. . . . The Court acknowledges that
Defendant is a caring mother focused on doing what she believes best for the
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minor child. . . . However, Plaintiff has taken every opportunity to prove to this
Court, and to Defendant, his commitment to the minor child and to being the
best parent that he can be. Unfortunately, Defendant refuses to allow for the
possibility that Plaintiff can, and will, be an excellent father able to
independently care for the minor child well. Defendant fails to recognize that
Plaintiff is and will be a beneficial influence in the life of the child. Therefore,
this Court must find that Defendant’s actions in attempting to deny the
minor child reasonable visitation and communication with his father is a
material change in circumstances that is adversely affecting the minor
child. See Ellis v. Ellis, 952 So. 2d 982, 990 (Miss. Ct. App. 2006).
(Emphasis added). Buskirk argues the court’s ruling is “manifestly wrong and unsupported
by substantial evidence.” She claims none of the reasons cited by the court in its final
judgment “singly or in combination, amount to the kind of substantial adverse change
required by law.” While Buskirk admits that the parties’ relationship is “contentious,” she
asserts “this is not a new development.”
¶29. First, Buskirk asserts that since 2019, she has only moved once; her reason for moving
was because her children wanted access to a swimming pool, and the change in school
district was beneficial for S.H. Buskirk does not deny that prior to 2019, she moved and
changed S.H.’s school several times, without informing Hodge. She simply asserts that the
court has been aware of these moves in prior proceedings and still left her with sole custody.
¶30. Buskirk is correct that “the mere moving of the custodial parent does not constitute
a material change in circumstances for child custody modification purposes.” Giannaris v.
Giannaris, 960 So. 2d 462, 468 (¶11) (Miss. 2007). And had Buskirk’s most recent move
been the only reason for the court’s finding of a material change, we might find merit to
Buskirk’s argument that the court erred.
¶31. However, there was evidence of Buskirk’s ongoing failure to keep Hodge informed
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of residency and school changes, which were a clear violation of the court’s orders. As
stated in the chancery court’s order, it was also Buskirk’s interference with communication
between S.H. and Hodge, as well as her denial to provide Hodge with S.H.’s medical
information, that the court determined warranted an adverse material change.
¶32. We find substantial evidence to support the chancery court’s holding. For example,
the record contains numerous messages from Hodge to Buskirk in the Our Family Wizard
program dated April 27, 2023, through late May 2023, in which Hodge begs Buskirk to have
S.H. call him because Hodge had not heard from S.H. for days. Furthermore, Hodge testified
that he attempted to gain information and access to S.H. when the child was admitted (over
Hodge’s objections) to the hospital for observation and treatment for his alleged self-harm
ideation. Hodge testified that when he sought information from Canopy, Buskirk called to
prevent that access. She also had her attorney send a cease-and-desist letter dated May 4,
2023, which canceled S.H.’s interview that Hodge had set up with Dr. Salem to obtain a
second opinion.
¶33. This Court recently considered a similar factual scenario in Hopkins v. Perry, 420 So.
3d 354 (Miss. Ct. App. 2025). As in this case, we were asked in Hopkins to review a
chancellor’s modification from the mother having sole legal and physical custody to vesting
the father with joint legal custody and increasing his visitation. Id. at 358 (¶¶1-5). Although
the chancellor’s bench ruling noted some disputed issues (i.e., an incident where the child
was hospitalized and the mother prevented the father from visiting), neither the bench ruling
nor the written order contained a finding of what the chancellor considered to be a material
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change. Id. at 364-65 (¶¶41-43). While this Court found the circumstances surrounding the
hospital incident “may constitute a material change in circumstances adverse to G.D.P.’s
welfare,” we would “not attempt to guess what the chancellor determined was a proper basis
for a change in custody.” Id. at 366 (¶47) (quotation mark omitted). Additionally, the
chancellor made no analysis under Albright. Id. at (¶48). We therefore reversed and
remanded for the chancellor to “identify and articulate whether there was a material change
in circumstances adversely affecting [the child], and, if so, the chancellor must apply the
Albright factors in light of such change.” Id. at (¶49). However, we did affirm the change
in visitation. Id. at 368 (¶55). Unlike Hopkins, the chancellor in the present case made
thorough findings in the judgment, citing the incidents and reasons previously discussed. He
also made a well-reasoned Albright analysis, which we will address in more detail below.
We find that the chancery court’s determination that a material change in circumstances
occurred was not manifest error.
¶34. “[E]ven when the record supports a finding that a material change in circumstances
in the custodial home has occurred, the chancellor ‘must separately and affirmatively
determine that this change is one which adversely affects the child.’” Butler v. Mozingo, 287
So. 3d 980, 984 (¶14) (Miss. Ct. App. 2019) (quoting Bredemeier v. Jackson, 689 So. 2d 770,
775 (Miss. 1997)). Buskirk asserts that there was no showing that her move harmed S.H. nor
that S.H.’s long-term welfare was harmed by the hospitalization. Hodge asserts that “given
all the evidence of the child’s emotional and mental trauma, it [is] clear that changes
[occurring since the initial custody order] had an adverse effect” on the minor child. Buskirk
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did not dispute that she moved several times prior to 2019, requiring several changes in
S.H.’s school. Additionally, even considering only the most recent circumstances, the
evidence showed that S.H. had troubling behavioral incidents, which prompted the hospital
stay in March 2023 while under Buskirk’s custodial care.
¶35. The chancery court granted Hodge joint legal custody because Buskirk had “refused
to comply” with the court’s orders to keep Hodge informed of S.H.’s medical information,
as evidenced by her instructing Canopy to keep Hodge from accessing the child’s medical
records and her canceling S.H.’s appointment with Dr. Salem. As the court further
determined, Buskirk prevented Hodge, who the court found to be “a beneficial influence” on
S.H., from “freely communicating” and “being a father to the minor child.” We therefore
find that the record supports the court’s “separate[] and affirmative[]” determination that
Buskirk’s attempts to deny S.H. “reasonable visitation and communication with his father
is a material change in circumstances that is adversely affecting the minor child.”
B. Analysis of the Albright Factors
¶36. “If an adverse substantial or material change is found, the chancellor must then
perform an Albright analysis to determine whether modification of custody is in the child’s
best interest.” Hopkins, 420 So. 3d at 363-64 (¶38) (quoting Lorenz v. Strait, 155 So. 3d 197,
203 (¶20) (Miss. Ct. App. 2015)). In this case, the chancery court found that the majority of
Albright factors did not favor either parent. With regard to the age, health, and sex of the
child, the court found, “While this factor does not significantly favor either parent, the [c]ourt
is especially mindful of the potential adverse [e]ffects that a change in physical custody could
16
have for the minor child given his difficulties in transitioning and adapting to new
environments.” The chancellor did not find that any factor favored Buskirk, and the only
factor found to be in Hodge’s favor was “stability of home environment” based on the fact
that Hodge had resided in one home through the proceedings, but Buskirk has had multiple
residences in the past few years.
¶37. Buskirk challenges the chancery court’s application of the Albright factors, contending
that the court’s decision “was a misuse of discretion because it is not supported by the factor
analysis or the evidence, and it runs counter to the principle that custody should not be
disturbed absent a clear advantage to the child.” Specifically, she argues that the chancery
court did not give “proper weight” to the factor of continuity of care and placed “undue
weight” on the factor of “stability of home environment.”
¶38. “The chancellor has the ultimate discretion to weigh the evidence the way he sees fit.”
Riley v. Heisinger, 302 So. 3d 1243, 1255 (¶46) (Miss. Ct. App. 2020) (quoting Johnson v.
Gray, 859 So. 2d 1006, 1013-14 (¶36) (Miss. 2003)). “We review the chancellor’s
application of the [Albright] factors for manifest error, giving deference to the weight that
he assigned each factor.” Id. (citing Smith v. Smith, 206 So. 3d 502, 513 (¶24) (Miss. 2016)).
“When a chancellor properly applies and considers the child-custody factors from Albright,
there is no manifest error.” Weatherly v. Weatherly, 412 So. 3d 276, 287 (¶20) (Miss. Ct.
App. 2024).
i. Continuity of Care
¶39. The court acknowledged that Buskirk was S.H.’s primary caregiver and custodial
17
parent. Yet the court determined that this factor did not favor either party, as Hodge had
“actively pursued additional time with the minor child only to be denied by [Buskirk].” We
find no error in the court’s reasoning. In Story v. Allen, 7 So. 3d 295 (Miss. Ct. App. 2008),
this Court held:
It is neither logical nor proper to favor one of the parents, under an Albright
factor, because of that parent’s malfeasance. The chancellor admitted in his
order that the continuity of care factor favored Cindy because Cindy repeatedly
interfered with Randy’s relationship with Francesca. Equity dictates that the
chancellor should have at least found this factor to be neutral.
Id. at 298-99 (¶21).
ii. Stability of Home Environment
¶40. The chancery court favored Hodge on the factor of stability of the home environment
because Buskirk had “moved multiple times in the last seven (7) years, requiring the minor
child to attend five (5) different schools since age three. [Hodge] has lived in the same
residence throughout the entirety of the child’s life.” This evidence was unrefuted.
Furthermore, the “[s]tability of home environment may also be negatively affected by
frequent moves from one dwelling to another.” Deborah H. Bell, Bell on Mississippi Family
Law § 12.03[11][a], at 406 (3d ed. 2020).
¶41. In addressing other factors relevant to the parent-child relationship, the court noted
the extensive testimony “regarding the minor child’s mental and emotional health” and the
child’s need for “a routine and schedule to function at his best.” For that reason, the court
noted that a change in physical custody “could be particularly challenging to the minor
child.” Although the chancery court determined, based on its review of the factors, that joint
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physical custody would not be in the child’s best interest, the court further found that “joint
legal custody is absolutely essential to allow [Hodge] to actively engage as the child’s
father.”
¶42. “Substantial deference is given to a chancellor’s findings, as the chancellor ‘has the
ultimate discretion to weigh the evidence the way [he] sees fit in determining where the
child’s best interest lies.’” Stuckey v. Stuckey, 341 So. 3d 1030, 1037 (¶16) (Miss. Ct. App.
2022) (quoting Stewart v. Stewart, 309 So. 3d 44, 84 (¶128) (Miss. Ct. App. 2020)). We find
no error in the court’s analysis of the Albright factors.
II. Whether the chancery court erred in modifying visitation.
¶43. The “material change in circumstances test is not applicable” to a modification of
visitation. H.L.S. v. R.S.R., 949 So. 2d 794, 798 (¶9) (Miss. Ct. App. 2006). As this Court
held in Hopkins,
“[v]isitation is a matter within the chancellor’s sound discretion.” Fortner v.
Bratcher, 394 So. 3d 452, 459 (¶31) (Miss. Ct. App. 2024) (quotation mark
omitted). “The chancellor is charged with fashioning a visitation schedule that
is in the best interests of the children, and the chancellor’s visitation decision
is afforded great deference by this Court.” Id.
“To modify a visitation order, it must be shown that the prior decree for
reasonable visitation is not working and that a modification is in the best
interest of the child.” H.L.S.[,] 949 So. 2d [at] 798 (¶9) . . . . The
“unworkability” factor may be met with evidence of the custodial parent’s
interference with the noncustodial parent’s visitation and the parents’ inability
to get along. Id. at (¶11).
Hopkins, 420 So. 3d at 367 (¶¶51-52).
¶44. Buskirk attempts to characterize the court’s ruling as “a near 50/50 shared physical
custody arrangement” and claims that it is effectively an alternating weekly custody
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arrangement. We find the record does not support Buskirk’s assertion. The court’s
expansion of visitation in the order was an additional two days on Hodge’s alternating
weekend only when S.H. was not in school. We would hardly characterize this as a 50/50
physical-custody arrangement, particularly since the court made no changes to those
alternating weekends when S.H. is in school nor any changes to the previous visitation
schedule set forth in prior orders.
¶45. With regard to the “unworkability” factor, although Buskirk denied preventing the
child from speaking with his father, there was substantial evidence that Buskirk had
occasionally interfered with Hodge’s communication with S.H. (e.g., the messages from May
2023 in which Hodge repeatedly asks Buskirk to have S.H. contact him). And it is not
disputed that the parties do not get along with one another. We find that this factor is met
in this case.
¶46. Finally, the chancery court found in the order that it was “in the best interests of the
minor child” to have “adequate time for [a] meaningful relationship” with his father.
“Mississippi law provides that a noncustodial parent is entitled to significant visitation with
a child under circumstances that foster a close relationship.” Jaggers v. Magruder, 129 So.
3d 965, 969 (¶21) (Miss. Ct. App. 2014). Buskirk even agreed at trial that “everybody needs
to come together and do what’s best for [S.H.].”
¶47. For these reasons, we affirm the chancery court’s ruling to modify visitation.
III. Whether the chancery court applied inconsistent evidentiary
standards resulting in prejudice to Buskirk.
¶48. Lastly, Buskirk argues that the court barred her “from introducing pre-2023 evidence,”
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yet the court allowed Hodge to reference events prior to 2023 in support of his case. She
claims, “This inconsistent application of the court’s own evidentiary ruling was an abuse of
discretion and deprived Sunny of a fair opportunity to present her defense.”
¶49. As Hodge points out, Buskirk cites no authority in support of this argument.
Mississippi Rule of Appellate Procedure 28(a)(7), which governs the argument section of
appellate briefs, states, “The argument shall contain the contentions of appellant with respect
to the issues presented, and the reasons for those contentions, with citations to the
authorities, statutes, and parts of the record relied on.” M.R.A.P. 28(a)(7). Rule 28 “does
not simply require a party to mention authority; the authority must be used to develop the
argument in a meaningful way.” Reading v. Reading, 350 So. 3d 1195, 1199 (¶19) (Miss.
Ct. App. 2022). Arguments that are not in compliance with Rule 28(a)(7) are procedurally
barred. Id.
¶50. Nor do we find Buskirk’s claim supported by the record. The only instance of which
Buskirk complains that we can ascertain from the record is when she attempted to testify that
Hodge had been abusive to her while she was pregnant with S.H. ten years previously.
Hodge’s attorney objected on the basis of relevancy, and the court sustained the objection.
Moreover, at no time did she attempt to rebut Hodge’s testimony that she had moved several
times prior to the July 2019 order. This issue is without merit.
Conclusion
¶51. Upon review, we find no manifest error or clear error in the chancery court’s findings,
and we affirm the judgment.
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¶52. AFFIRMED.
CARLTON AND WILSON, P.JJ., WESTBROOKS, McDONALD,
LAWRENCE, McCARTY, EMFINGER, WEDDLE AND LASSITTER ST. PÉ, JJ.,
CONCUR.
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