Avants v. Hamilton, 2018-CA-00129-COA
| Decision Date | 07 May 2019 |
| Docket Number | NO. 2018-CA-00129-COA,2018-CA-00129-COA |
| Citation | 281 So.3d 1035 |
| Parties | Bryan AVANTS, Appellant v. Shawn HAMILTON, Appellee |
| Court | Mississippi Court of Appeals |
ATTORNEY FOR APPELLANT: EDWIN L. BEAN JR., McComb
ATTORNEY FOR APPELLEE: JASON E. TATE
EN BANC.
BARNES, C.J., FOR THE COURT:
¶1. Bryan Avants and Shawn Hamilton had a daughter, Jessica, born in 2010.1 Hamilton also had a sixteen-year-old son from a previous relationship, Bobby, who lived with the family at Avants's home in Summit, Mississippi. On May 5, 2016, Avants was drawing Jessica a bath and doing laundry. He became annoyed because Bobby was playing video games on his cell phone; so Avants asked him to put the phone down. When Bobby did not comply, Avants went to take the phone from him. In an effort to intervene, Hamilton threw a television remote, hitting Avants, and the couple began arguing and tussling with one another. Although it is unclear whether Jessica witnessed the fight, she was upset and crying. Hamilton immediately packed her bags, and she and Bobby left the home. She asked six-year-old Jessica if she wanted to leave as well, but the child opted to remain with Avants after he asked Jessica if she wanted to stay and have milk and cookies. The couple has been separated since that time.
¶2. Hamilton filed a petition for temporary and permanent child custody, to establish paternity, and other relief on May 11, 2016. Avants counter-claimed for custody of Jessica and child support. After a hearing on September 12, 2016, the chancery court awarded the parties temporary joint legal and physical custody of Jessica, with alternating weeks of physical custody. Avants voluntarily agreed to pay temporary child support of $ 400 per month, and the parties were ordered to share the child's extracurricular activity costs equally.
¶3. A trial was held on January 12, 2017, and July 20, 2017. The chancery court entered a "Final Judgment of Paternity, Custody and Support," adjudicating Avants as Jessica's natural father. After an analysis of the Albright factors,2 the chancery court awarded joint legal custody to both parties and primary physical custody to Hamilton, with Avants being awarded visitation on alternating weekends and holidays. The court ordered Avants to pay monthly child support of $ 550 and to provide health insurance for the child. Avants filed a motion for reconsideration on September 5, 2017, which the chancellor denied. Finding no reversible error, we affirm.
DISCUSSION
¶4. Avants argues that the chancery court erred in awarding primary physical custody to Hamilton. In reviewing a chancery court's award of custody, we will affirm unless the decision was manifestly wrong, clearly erroneous, or the chancery court applied an erroneous legal standard. Baumbach v. Baumbach , 242 So.3d 193, 199 (¶ 21) (Miss. Ct. App. 2018) (citing Ethridge v. Ethridge , 226 So.3d 1261, 1262 (¶ 5) (Miss. Ct. App. 2017) ). However, if the court's decision is not supported by substantial evidence in the record, we will find error. Id.
¶5. In Albright v. Albright , 437 So.2d 1003, 1005 (Miss. 1983), the Mississippi Supreme Court held that "the polestar consideration in child custody cases is the best interest and welfare of the child." In addition to the child's age, the court considers other factors in determining an award of custody:
[the] health[ ] and sex of the child; a determination of the parent that has had the continuity of care prior to the separation; which has the best parenting skills and which has the willingness and capacity to provide primary child care; the employment of the parent and responsibilities of that employment; physical and mental health and age of the parents; emotional ties of parent and child; moral fitness of parents; the home, school[,] and community record of the child; the preference of the child at the age sufficient to express a preference by law; stability of [the] home environment and employment of each parent[;] and other factors relevant to the parent-child relationship.
Id. Finding several factors favored Hamilton, the court awarded her physical custody of the minor child.3
¶6. The chancery court found that this factor slightly favored Hamilton, noting that although Jessica was "no longer an infant," Hamilton had been the child's primary caregiver before the couple's separation. Avants argues the court's finding was in error because Jessica was not a child of tender years. We agree. "A child is no longer of tender years when she can be equally cared for by persons other than the mother." Woodham v. Woodham , 17 So.3d 153, 157 (¶ 9) (Miss. Ct. App. 2009) (citing Mercier v. Mercier , 717 So.2d 304, 307 (¶ 15) (Miss. 1998) ). In Woodham , this Court upheld a chancery court's determination that a child of four years old was not a child of tender years and that both parents could take care of the child. Id. at 157 (¶ 10). Here, Jessica was almost seven years old at the time of the trial. There was substantial evidence presented that Avants and Hamilton were equally capable of caring for Jessica. Therefore, we find the chancery court's ruling that this factor favored Hamilton was not supported by the evidence. However, "a child's age is ‘but one factor out of many to be considered in a child[-]custody case.’ " Davis v. Stevens , 85 So.3d 943, 949 (¶ 28) (Miss. Ct. App. 2012) (quoting Gutierrez v. Bucci , 827 So.2d 27, 31 (¶ 17) (Miss. Ct. App. 2002) ).
¶7. The chancery court also found that this factor "slightly" favored Hamilton, noting that usually the mother is favored when the child is female. The court also observed that Jessica is in good health, except for her chronic bed wetting, which Hamilton testified had become worse since the separation. Avants claims the court's finding is not supported by the evidence.
¶8. Hamilton testified that "since [the] separation [Jessica's] been wetting the bed more and more and more" and that Jessica was embarrassed to tell Avants when she wets her pants. We find this evidence sufficient to support the chancellor's finding. Furthermore, Avants admits that he had tried to resolve the bed-wetting issue through counseling for Jessica and that the bed-wetting "could be a maturity or an emotional problem."
¶9. As our Court has held, "these factors are ‘not, by any means, a mathematical equation.’ " Tidmore v. Tidmore , 114 So.3d 753, 761 (¶ 23) (Miss. Ct. App. 2013) (quoting Wilson v. Wilson , 79 So.3d 551, 566 (¶ 63) (Miss. Ct. App. 2012) ). We find no error in the chancery court's finding this factor slightly favored Hamilton.
¶10. The chancery court noted that while the parties lived together, they shared in Jessica's care. Avants admitted Hamilton had been the primary caregiver prior to separation and had taken care of most of the child's basic needs. Avants attended to the child's routine needs when he was not working away from home. The court reasoned that this factor favored Hamilton.
¶11. Avants, who had worked two-weeks off/two-weeks on in the oilfield industry before the separation, argues he was "punished" because of the time he had spent away from Jessica while working. He notes that on the night of the incident, he had been running Jessica a bath and folding clothes. While the evidence certainly demonstrates that Avants is a loving and attentive father to Jessica, we find there is also substantial evidence to support the court's finding that Hamilton was the primary caregiver prior to the separation and that this factor favored her.
¶12. The chancery court concluded that this factor was neutral, finding "little evidence of disparity in this area." Avants asserts there are facts in the record to support a finding that this factor should have favored him. He cites several items to support his argument, such as: (1) Hamilton's remote-throwing incident; (2) Bobby's generally disrespectful behavior toward both parties (e.g., not responding with "no, ma'am" or "yes, ma'am"); (3) Hamilton's allowing Bobby to dye his hair different colors; (4) Hamilton's failure to insist Bobby get help (tutor) with his schoolwork issues; and (5) Hamilton's introducing the children to her boyfriend, Shane Dykes, soon after the separation.
¶13. The evidence showed that Bobby did have some problems with his grades in a couple of classes, due to chronic health issues (diabetes and Addison's disease ). However, Bobby and Hamilton both testified that he was on a special plan through the school, which would help get him back on track and give him extra time to bring up his grades. Hamilton admitted that she began talking to Dykes a few days after the separation because she had known him for twenty-five years. She said that initially Dykes was just a friend. Bobby testified that Hamilton occasionally brought Dykes over to their house but never spent the night, and the couple never kissed in front of Bobby or Jessica. Regarding the remaining issues asserted, the chancellor heard the evidence and, apparently, did not feel it warranted a finding that Avants had better parenting skills than Hamilton. "[I]t is not our role to substitute our judgment for the chancellor's." Montgomery v. Montgomery , 20 So.3d 39, 42 (¶ 9) (Miss. Ct. App. 2009).
¶14. Avants also claims that Bobby's well-being was apparently more important to Hamilton than Jessica's, noting that Hamilton made Bobby leave with her, but not Jessica. We find nothing in the record to support Avants's rationale. Bobby was not Avants's son; it was understandable that he would go with his mother. Furthermore, Hamilton asked Jessica to come with her, but the child chose to stay with Avants that night after he offered her milk and cookies. We find it incredulous to infer that Hamilton's decision not to force Jessica to leave her father that night, but rather let her remain at home, is indicative of her caring for Bobby more than she does Jessica. We find no error in the court's finding that this factor was...
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