Ballard v. Ballard

• Citation: 289 So.3d 725
• Decision Date: 29 August 2019
• Docket Number: NO. 2018-CA-01061-SCT CONSOLIDATED WITH NO. 2016-CA-00615-SCT,2018-CA-01061-SCT CONSOLIDATED WITH NO. 2016-CA-00615-SCT
• Parties: Candice Rae Shurden BALLARD v. Joe Marshall BALLARD
• Court: Mississippi Supreme Court

289 So.3d 725

Candice Rae Shurden BALLARD

v.Joe Marshall BALLARD

NO. 2018-CA-01061-SCT CONSOLIDATED WITH NO. 2016-CA-00615-SCT

Supreme Court of Mississippi.

August 29, 2019

ATTORNEY FOR APPELLANT: JERRY WESLEY HISAW, SOUTHAVEN

ATTORNEY FOR APPELLEE: SABRINA D. HOWELL

EN BANC.

BEAM, JUSTICE, FOR THE COURT:

¶1. This Court remanded this case for further proceedings on child custody. Ballard v. Ballard , 255 So. 3d 126 (Miss. 2017). Finding that the chancellor was not manifestly wrong or clearly erroneous in granting custody of the three minor children to Marshall Ballard, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2. The facts were summarized in Ballard . Candice and Marshall Ballard were married in 2006, and three children were born during the marriage: (1) Jane, who was born in 2007; (2) John, who was born in 2009; and (3) Jill, who was born in 2011.¹ Id. at 128-29. "Neither party disputes the fact that Marshall is not the biological father of Jill, who was born as a result of a marital-separation affair." Id. at 129.² ¶3. Marshall filed for divorce, and the parties later agreed to an irreconcilable-differences divorce in which the chancery court would decide child custody, among other issues. Id. The chancellor awarded custody to the Department of Human Services but placed the children with Marshall's parents. Id. at 130.

¶4. Candice appealed, arguing that the chancellor relied strictly on hearsay in making the custody determination. Id. at 131. This Court in Ballard agreed with Candice and reversed and remanded the issue of child custody. Id. at 134.

¶5. On remand, the chancery court awarded custody of the children to Marshall. Aggrieved, Candice appeals, arguing that the instructions given by this Court were simply to review the determination of Candice's fitness without the hearsay evidence, not to conduct a new trial on custody.

LAW AND ANALYSIS

¶6. Candice raises the following issues on appeal:

I. Whether the chancellor erred in following the instructions given by this Court.

II. Whether the chancellor erred in finding that custody of Jill could be awarded to Marshall.

III. Whether the chancellor erred in the Albright analysis.

¶7. The standard of review in domestic-relations cases is well-established: "When this Court reviews domestic-relations matters, our scope of review is limited by the substantial evidence/manifest error rule. 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." Darnell v. Darnell , 167 So. 3d 195, 201 (Miss. 2014) ( Darnell I ) (internal quotation marks omitted) (quoting Giannaris v. Giannaris , 960 So. 2d 462, 467 (Miss. 2007) ).

I. Whether the chancellor erred in following the instructions given by this Court.

¶8. This Court reversed and remanded the issue of child custody for further proceedings, because it found that the chancellor's reliance on hearsay evidence in the guardian ad litem's report had been erroneous. Ballard , 255 So. 3d at 134. Candice contends that on remand the chancellor was only to consider whether she was unfit or whether the presumption against custody by a violent parent had been implicated by her.

¶9. Relying on Darnell II , Candice asserts that the trial court cannot go beyond the instructions of the appellate court. Darnell v. Darnell , 234 So. 3d 421, 424 (Miss. 2017) ( Darnell II ). However, the facts in Darnell II are dissimilar. In Darnell II , this Court specifically directed the trial court to make new findings on remand about whether two statements were admissible evidence and to conduct a new Albright analysis in light of that evidence. Id.

¶10. Here, no such instructions limited the trial court's consideration of the issue on remand. The instructions were simply to reconsider custody of the three minor children without using the hearsay evidence from the guardian ad litem's report.

¶11. "The preeminent consideration of the chancellor on remand should be the best interest of the children." Jerome v. Stroud , 689 So. 2d 755, 760 (Miss. 1997) (Prather, P.J., specially concurring). On remand, the chancellor found that Marshall was best suited to have custody both of his two biological children and also of Jill, for whom he had served in loco parentis . Therefore, the chancellor on remand did not go beyond the instructions given by this Court.

II. Whether the chancellor erred in finding that custody of Jill could be awarded to Marshall.

¶12. While Candice contends that the chancellor exceeded the scope of the instructions on remand, she argues that Marshall's having acted in loco parentis for Jill was not enough to overcome the natural-parent presumption with regard to Candice's custody of Jill.³ Candice correctly states that "[t]he law recognizes that parents are the natural guardians of their children, and ‘it is presumed that it is in the best interest of a child to remain with the natural parent as opposed to a third party.’ " Davis v. Vaughn , 126 So. 3d 33, 37 (Miss. 2013) (quoting In re Dissolution of Marriage of Leverock and Hamby v. Leverock , 23 So. 3d 424, 429 (Miss. 2009) ).

However, the presumption in favor of the parent may be rebutted by clear and convincing evidence that "(1) the parent has abandoned the child; (2) the parent has deserted the child; (3) the parent's conduct is so immoral as to be detrimental to the child; or (4) the parent is unfit, mentally or otherwise, to have custody."

Id. (quoting Smith v. Smith , 97 So. 3d 43, 46 (Miss. 2012) ). "If the natural-parent presumption is successfully rebutted, the court may then proceed to determine whether an award of custody to the challenging party will serve the child's best interests." Id. (citing Smith , 97 So. 3d at 46 ).

¶13. Candice contends that this case is controlled by In re Waites v. Ritchie , 152 So. 3d 306 (Miss. 2014). In Waites , the mother sought to modify a custody agreement. Id. at 307. She subsequently notified T.J., her child's biological father who had joined her petition seeking custody. Id. Although her husband, Scott, had cared for the child from the beginning, the chancellor excluded Scott from the Albright consideration because he was not a natural parent; the chancellor awarded full custody to the mother. Id. However, the chancellor allowed Scott and T.J. visitation. Id. Scott appealed, and the Court of Appeals reversed and remanded, finding that Scott should have been considered on equal footing with the natural parents. Id. The mother and T.J. filed a petition for a writ of certiorari, which this Court granted. Id. This Court found that the chancellor had properly excluded Scott from consideration. Id.

¶14. Candice further argues that the chancellor erroneously relied on a Court of Appeals case, Welton v. Westmoreland , 180 So. 3d 738 (Miss. Ct. App. 2015), to support awarding Marshall custody of Jill. In Welton , the natural father sought a modification of custody of his daughter Alexice and subsequently amended his complaint to seek custody of his daughter Justice. Id. at 740. Although Daniel was not Justice's biological father, she believed he was until she was twelve years old. Id. Her biological father abandoned her and, after her birth, had never made an attempt to see her. Id. While Daniel knew he was not Justice's biological father, he raised her like she was his own from the time she was four months old. Id. Further, Justice's mother requested that Justice retain Daniel's last name. Id. ¶15. In determining custody of Justice, the court acknowledged that,

[i]n general, the natural parent presumption precludes a court from granting custody to a "third party" over the objection of a natural parent absent clear and convincing evidence that the natural parent has abandoned or deserted the child, has engaged in immoral conduct harmful to the child, or is an unfit parent.

Id. at 744. "The chancellor did not find that any of the grounds for overcoming the natural-parent presumption had been established," but he did find that, "on the ‘unique’ facts of this case, Daniel ‘stands in the place of a natural parent for purposes of custody of Justice.’ " Id.

¶16. Welton relied upon two Supreme Court cases, Griffith v. Pell and J.P.M. v. T.D.M. , for guidance. While the facts in Pell and J.P.M. vary slightly from the facts in Welton , the Court of Appeals appropriately extended the reasoning in those cases to apply to Welton , and, we find that the same principles apply to the present case. In Pell , as discussed in Welton , this Court held that "a husband who learned during divorce proceedings that he was not the biological father of a child born just prior to the marriage could be granted visitation and, custody over the objections of his wife (the child's mother)." Id. at 745 (citing Griffith v. Pell , 881 So. 2d 184, 185-87 (Miss. 2004) ). Moreover, as discussed in Welton , in J.P.M. , this Court "affirmed an order granting custody to a husband who had learned during divorce proceedings that he was not the biological father of a child born to the marriage" because "[h]e was deemed the ‘father in fact’ and was not required to present additional evidence to rebut the natural parent presumption." Id. (citing J.P.M. v. T.D.M. , 932 So. 2d 760, 762-70 (Miss. 2006) ).

¶17. This Court reasoned in both Pell and J.P.M.

that the natural-parent presumption had been overcome based on several facts: (1) the husbands stood in loco parentis; (2) they had supported, cared for, and treated the child as their own; (3) they could have been required to pay child support ("with the burden should go the benefit"); and (4) the biological fathers were not really in the picture: the one in Pell had disclaimed any interest in the child and had agreed to relinquish his parental rights, while the one in J.P.M. could not even be determined conclusively.

Id. (quoting Waites , 152 So. 3d at 312 ).

¶18. In Welton , the Court of Appeals found that the facts necessary to overcome the natural-parent...