Blevins v. Bardwell, 1999-CA-00983-SCT.

• Decision Date: 19 April 2001
• Docket Number: No. 1999-CA-00983-SCT.,1999-CA-00983-SCT.
• Citation: 784 So.2d 166
• Parties: Adam L. BLEVINS v. Dawn Elizabeth BARDWELL.
• Court: Mississippi Supreme Court

784 So.2d 166

Adam L. BLEVINS v. Dawn Elizabeth BARDWELL.

No. 1999-CA-00983-SCT.

Supreme Court of Mississippi.

April 19, 2001.

John C. Jopling, Attorney for Appellant.

Keith Pisarich, Biloxi, Attorney for Appellee.

BEFORE PITTMAN, C.J., MILLS and WALLER, JJ.

PITTMAN, Chief Justice, for the Court:

¶ 1. Adam L. Blevins appeals a chancery court judgment awarding the permanent paramount care, custody and control of his daughter Darby Colleen Blevins to her mother Dawn Elizabeth Bardwell (Funsch).

FACTS AND PROCEEDINGS BELOW

¶ 2. Adam Blevins and Dawn Bardwell (now Funsch) met in June of 1996 while both were stationed at Keesler Air Force base in Biloxi, Mississippi. After a period of friendship, they became romantically involved. This brief relationship temporarily ended just a few weeks before Dawn married her "high school sweetheart," Jason Singleton, that August. About a month later Dawn began treatment for stress and depression at the Keesler Mental Health Clinic. Despite Dawn's marriage, Adam and Dawn renewed their romance. While still married to Jason, Dawn discovered that she was pregnant and received an honorable discharge from the Air Force. She then moved in with Adam in January of 1997. From that time forward Adam and Dawn lived together and proclaimed themselves a couple.

¶ 3. Darby Colleen Blevins was born July 19, 1997. Over the following two weeks a DNA parentage test was administered; Dawn's divorce from Jason was finalized; and it was conclusively proven that Adam was Darby's biological father. Adam and Dawn continued to co-habitate unmarried and care for their daughter, with Dawn being the primary care giver. During this time Adam worked full time, and Dawn held a part time job. Both admitted in testimony that it was their intention to marry at some point in the future.

¶ 4. Eventually Dawn decided to reenlist in the Air Force. Because the Air Force prohibits custodial single parents from enlisting, Dawn executed a "Order Approving Custody of Child" granting custody of Darby to Adam. At the time both believed they would marry at the conclusion of Dawn's technical training, or alternatively, once Dawn gained "permanent party" status, she would regain custody of Darby without jeopardizing her position in the Air Force. Adam and Dawn agree that they intended the change of custody to be a temporary arrangement.

¶ 5. Dawn left for technical training in July of 1998. Adam served as the primary care giver for Darby over the next 9 months. After Dawn came home on leave in September of 1998, relations became strained between the couple. By the end of her five-day leave Dawn and Adam had ended their relationship. Before leaving for her new assignment at Lackland Air Force Base in San Antonio, Texas, Dawn expressed her desire to take Darby with her since Dawn had successfully attained "permanent party" status. Adam refused to allow Dawn to take Darby citing his custody rights per the "Order Approving Custody of Child." Dawn and Adam have not lived together since.

¶ 6. A month after her arrival at Lackland Air Force Base, Dawn filed her Complaint in the Chancery Court of the Second Judicial District of Harrison County, Mississippi, for Change in Custody and Other Relief in the hope of regaining custody of Darby. While working at Lackland, Dawn met Anthony Funsch, whom she later married prior to the custody hearing. Dawn claims that in the months leading up to the custody hearing, while Darby was still in her father's custody, Adam was uncooperative in allowing visitation and promoting a close relationship between Dawn and Darby. Dawn also asserts that, on occasion, the chancery court was forced to implement visitation on behalf of Dawn, although there is nothing in the record to support this assertion. Prior to the court hearing in April of 1999 Adam and Darby moved to Melbourne, Kentucky, so that Adam could be with his father who was suffering from a number of serious illnesses.

¶ 7. After a four-day hearing, the chancellor issued the court's Memorandum Opinion and Judgment providing the following: 1) the prior order which awarded custody to Adam was a temporary, non-final adjudication of custody; 2) joint legal custody of Darby was awarded to both parties; 3) paramount care, custody and control of Darby was awarded to Dawn; 4) visitation was awarded to Adam, and 5) Adam was ordered to pay child support. From this judgment Adam appeals the award of paramount care, custody and control of Darby to Dawn.

DISCUSSION

I. DID THE TRIAL COURT CORRECTLY DETERMINE THAT THE CUSTODY AGREEMENT WAS TEMPORARY?

¶ 8. Once Dawn decided to reenlist in the Air Force, she executed an "Order Approving Custody of Child" granting custody of Darby to Adam. This order was made by then Chancellor William Stewart. The order did not state that it was a temporary custody arrangement.

¶ 9. In her "Memorandum Opinion and Judgment," Chancellor Margaret Alfonso, who had been elected to the post previously held by Chancellor Stewart, stated she was "clearly convinced the intention of the agreement and Order was that the custody was only of a temporary nature, only until Dawn obtained `permanent party' status in the military." Chancellor Alfonso determined that the order was "a temporary, non-final adjudication of custody."

¶ 10. At the time of their agreement regarding Darby's custody, Dawn and Adam intended to marry sometime after Dawn completed her training in the Air Force. Ultimately, they did not marry, and there was a need for the hearing below to determine permanent custody. It is undisputed that both parties voluntarily stipulated that the custody agreement made before Dawn's reentry into the Air Force was temporary in nature. Because single mothers with custody of children are not allowed to reenlist, the chancellor duly noted the pressure on Dawn to agree to the custody order so that she could return to the Air Force.

¶ 11. On its face, the "Order Approving Custody of Child" granting custody of Darby to Adam contains no language to indicate that it is anything but an order for permanent¹ custody. This Court gives great deference to the sanctity of orders made by chancellors and the belief that orders should be followed as they are written. We are able to revisit this order because both parties agree that it was intended to be temporary.

¶ 12. It is this Court's inclination to rule that the order was permanent, however, deference should be given to the Chancellor and the wide discretion she enjoys as finder of fact in matters such as this. This Court has stated:

a chancellor's decision cannot be disturbed "unless the chancellor abused his discretion, was manifestly wrong or clearly erroneous, or an erroneous legal standard was applied." Madden v. Rhodes, 626 So.2d 608, 616 (Miss.1993) (citations omitted). A chancellor sitting as a finder of fact is given wide discretion.

Griffin v. Campbell, 741 So.2d 936, 937 (Miss.1999).

¶ 13. Finally, and of greatest importance as this is a child custody matter, we must defer to the polestar consideration in every child custody case, the best interests of the child. Albright v. Albright, 437 So.2d 1003, 1005 (Miss.1983).

¶ 14. Because of our determination that the custody order was, in fact, temporary, the chancellor was free to make a de novo original award of custody based on the factors in Albright. The chancellor did make such an analysis in awarding custody to Dawn and on every single factor where the chancellor favored one parent over the other, the chancellor concluded that custody with Dawn was favorable.

¶ 15. If the initial order approving custody with Adam had been determined to be permanent, Dawn would have faced the more difficult burden of demonstrating the need for a modification of the custody order. As a general rule, to modify child custody there must be (1) a material change in circumstances that adversely affects the child and (2) the change of custody is in the best interest of the child. Pace v. Owens, 511 So.2d 489, 490 (Miss. 1987). However, this Court concluded in Riley v. Doerner, 677 So.2d 740 (Miss. 1996) that although the chancellor had failed to find a material change in circumstances having an adverse affect on the child, modification was nonetheless justified because it was in the child's best interest.

¶ 16. This Court in Riley unanimously rejected an approach that limits the ability of the chancellor to act in the child's best interest.

The test we have devised for custody modification need not be applied so rigidly, nor in such a formalistic manner so as to preclude the chancellor from rendering a decision appropriate to the facts of an individual case. In particular, it should not thwart the chancellor from transferring custody of a child from one parent to another when, in the chancellor's judgment, the child's welfare would be best served by such transfer.

Id. at 745. This Court noted that this exception to the usual approach should only be applied in unusual circumstances. "In such rare cases, no rigid test or magic words should stand in the way of the chancellor as he or she acts to improve the child's welfare through a modification of custody." Id. Undoubtedly, the custody of Darby Blevins would be just such a rare case where this exception would be warranted. Both parents understood the original agreement was temporary and the chancellor is "clearly convinced" the agreement was temporary. The chancellor's determination that it would be in Darby's best interest for the mother to have custody was actually the first determination by a chancellor on the merits of the question of custody. This determination was made after four days of trial and a careful analysis of the Albright factors. This is not the usual situation where the non-custodial parent is seeking the modification. Consequently, this Court could apply the Riley exception it has wisely carved out for such unusual cases had the order been permanent.

¶ 17. The...