O'Briant v. O'Briant, 2011–CA–00732–COA.

• Decision Date: 16 October 2012
• Docket Number: No. 2011–CA–00732–COA.,2011–CA–00732–COA.
• Citation: 99 So.3d 802
• Parties: Jonathan Platt O'BRIANT, Appellant v. Olivia Agnes O'BRIANT, Appellee.
• Court: Mississippi Court of Appeals

99 So.3d 802

Jonathan Platt O'BRIANT, Appellant

v.Olivia Agnes O'BRIANT, Appellee.

No. 2011–CA–00732–COA.

Court of Appeals of Mississippi.

Oct. 16, 2012.

Jeffrey Birl Rimes, Jenna Leet Bailey, Ridgeland, attorneys for appellant.

Melissa Ann Malouf, William Edward Ballard, Jackson, Casey Jones Rodgers, attorneys for appellee.

Before GRIFFIS, P.J., BARNES, ISHEE, and MAXWELL, JJ.

MAXWELL, J., for the Court:

¶ 1. Determining child custody is one of the most difficult of the many decisions our chancellors face. There is no mathematical formula—instead the chancellor must consider the best interest of the child, assessing the factors from Albright.¹ And when a chancellor properly applies and considers these factors, this court cannot say the chancellor manifestly erred and reverse her decision. Nor can a chancellor change her decision and reweigh the Albright factors upon the non-custodial parent's request without that parent first showing a material change in circumstances adversely affecting the child.

¶ 2. Here, the chancellor properly considered and applied the Albright factors to determine whether sole physical custody of Jonathan O'Briant's son Maguire should be awarded to Jonathan's ex-wife Olivia. We find no merit to Jonathan's arguments that the chancellor (1) miscalculated a factor he should have “won” and (2) gave undue weight to his history of mental illness and not enough weight to his parenting skills. Thus, we affirm the child-custody award.

¶ 3. We also find the chancellor properly denied Jonathan's Rule 59 motion for rehearing and to alter and amend the judgment.² Though Jonathan claims he has “newly discovered evidence” entitling him to a new child-custody hearing, his evidence concerns events that occurred afterthe child-custody hearing. Essentially, he is asking for a new Albright analysis. Absent a claim of a material change in circumstances, we find no abuse of discretion in the chancellor's refusal to revisit her child-custody decision and reassess the Albright factors. Thus, we also affirm the denial of Jonathan's Rule 59 motion.

Background

A. Separation

¶ 4. In August 2009, Olivia separated from Jonathan, taking their then two-year-old son Maguire with her to her parents' home in Texas. According to Olivia, the five-year marriage had been “horrible.” The couple married after a whirlwind three-month courtship-not enough time, Olivia testified, for her to learn of Jonathan's past history of serious mental illness.

¶ 5. Added to the stress of their marriage was the fact that Maguire had been born twelve weeks prematurely. Maguire stayed in the hospital for the first eleven weeks of his life and continues to have significant health problems—over which Olivia and Jonathan have sharply disagreed how best to treat.

¶ 6. After Olivia left with Maguire, Jonathan filed for divorce in Madison County, Mississippi, where the couple had lived and raised Maguire.³ Jonathan was awarded temporary custody of Maguire pending the divorce trial.

B. Judgment of Divorce

¶ 7. In August 2010, Olivia and Jonathan agreed to divorce and submitted the issues of Maguire's custody, visitation, and support to the chancellor. Among other witnesses, the chancellor heard testimony from Olivia, Jonathan, and Jonathan's mother, Ann Necaise. Jonathan and Olivia had lived in Ann's house, while Ann lived next door with her mother. During the separation, Jonathan and Maguire continued to live in Ann's house, and, according to the chancellor, Jonathan frequently relied on Ann's assistance with Maguire.

¶ 8. In her final judgment of divorce, the chancellor analyzed each Albright factor, ultimately concluding it was in Maguire's best interest that Olivia be awarded sole physical custody.

C. Motion for Rehearing

¶ 9. Ten days after the final judgment of divorce, Jonathan filed a motion for rehearing and to alter or amend the judgment under Rule 59 of the Mississippi Rules of Civil Procedure. See Curtis v. Curtis, 59 So.3d 623, 628 (¶ 18) (Miss.Ct.App.2011) (citation omitted) (holding the timing of post-judgment motion controls whether the motion is considered a Rule 59 or Rule 60⁴ motion—motions served within ten days fall under Rule 59). He then filed a supplemental motion for rehearing, followed by a second supplemental motion for rehearing.

¶ 10. In all three motions, Jonathan asserted “newly discovered evidence not available at trial” entitled him to a rehearing or an amended award of custody. This evidence concerned events occurring after the custody award, including a phone log allegedly showing Jonathan had not been allowed to exercise his telephonic visitation rights since Olivia had been awarded custody. Jonathan also claimed Olivia continuednot to attend to Maguire's health needs since being awarded custody, and that Olivia has placed Maguire in day-care, despite assuring the chancellor she would not.

¶ 11. The chancellor dismissed all three motions simultaneously, and Jonathan timely appealed. SeeM.R.A.P. 4(a), (d) (thirty-day time period to file notice of appeal runs from entry of denial of Rule 59 motion). His appeal challenges the denial of his rehearing motion as well as the underlying custody award. See Curtis, 59 So.3d at 629 (¶ 19) (citing Perkins v. Perkins, 787 So.2d 1256, 1261 (¶ 9) (Miss.2001)) (holding appeal from denial of Rule 59 motion may address not only denial of Rule 59 motion but also merits of underlying proceeding).

Discussion

I. Child-custody Award

A. Our Limited Standard of Review

¶ 12. In appeals from child-custody decisions, our polestar consideration, like the chancellor's, must be the best interest of the child. Montgomery v. Montgomery, 20 So.3d 39, 42 (¶ 9) (Miss.Ct.App.2009) (citing Hensarling v. Hensarling, 824 So.2d 583, 587 (¶ 8) (Miss.2002)). But precedent dictates we not substitute our judgment for that of the chancellor. Id. We are instead bound to apply a “very narrow” standard of review. Id.

¶ 13. We may only reverse a child-custody determination if the chancellor is manifestly wrong, clearly erred, or applied an erroneous legal standard. Id. When a chancellor properly applies and considers the child-custody factors from Albright, there is no manifest error. Smith v. Smith, 614 So.2d 394, 397 (Miss.1993).

B. The Chancellor's Albright Analysis

¶ 14. Jonathan argues the chancellor misapplied Albright because she miscalculated one of the factors and failed to weigh the evidence properly. Because the chancellor is to use Albright as a guide, not a formula, and weigh the evidence as she sees fit, we find no reversible error.

1. Albright Is a Guide, Not a Formula

¶ 15. “Determining custody of a child is not an exact science.” Lee v. Lee, 798 So.2d 1284, 1288 (¶ 15) (Miss.2001). Instead, it “is one of the most difficult decisions that courts must make.” Brewer v. Brewer, 919 So.2d 135, 141 (¶ 21) (Miss.Ct.App.2005). In Albright, the Mississippi Supreme Court gave a list of factors to consider to help chancellors “navigat [e] what is usually a labyrinth of interests and emotions.” Lee, 798 So.2d at 1288 (¶ 15) (citing Albright, 437 So.2d at 1005). The Albright factors provide chancellors guidance, not a mathematical formula. Id. “[E]ven when the trial judge sensitively assesses the factors noted in Albright and [its] progeny, the best the judiciary can offer is a good guess.” Love v. Love, 74 So.3d 928, 932 (¶ 17) (Miss.Ct.App.2011) (quoting Buchanan v. Buchanan, 587 So.2d 892, 897 (Miss.1991)).

¶ 16. Jonathan argues the chancellor committed legal error because she “recast” one Albright factor into two—causing the factor to favor Olivia. Jonathan analogizes this perceived error to an umpire botching the number of outs in an inning. But unlike baseball, an Albright analysis is not premised solely on a scoring system to determine which parent “wins.” Blakely v. Blakely, 88 So.3d 798, 803 (¶ 17) (Miss.Ct.App.2012) (citing Lee, 798 So.2d at 1288 (¶ 15)). “Instead, the Albright factors exist to ensure the chancellor considers all the relevant facts before she reaches a decision.” Id. And our review for manifest error is not a mechanical check on the chancellor's score card to see if she “tallied” each parent's score correctly. See id. Instead, we ask whether the chancellor considered all relevant facts, giving deference to the weight she assigns each factor.

¶ 17. Here, the chancellor considered all the relevant facts by applying each Albright factor:

(1) age, health, and sex of the child;

(2) a determination of the parent that has had the continuity of care prior to the separation;

(3) which has the best parenting skills and which has the willingness and capacity to provide primary child care;

(4) the employment of the parent and responsibilities of that employment;

(5) physical and mental health and age of the parents;

(6) emotional ties of parent and child;

(7) 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; ⁵

(10) stability of home environment and employment of each parent and other factors relevant to the parent-child relationship.

Lee, 798 So.2d at 1288 (¶ 15) (citing Albright, 437 So.2d at 1005). While Jonathan takes issue with the chancellor addressing the stability of each parent's employment when considering their employment responsibilities, then later in her order, assessing the stability of their respective home environments, he cannot argue the chancellor failed to consider these relevant factors. Thus, we find no “misapplication” of Albright occurred.

2. Weight of the Evidence Is Within the Chancellor's Discretion

¶ 18. Jonathan also contests the chancellor's findings as to which parent demonstrated 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, as well as her findings on the physical and mental health and age of the parents. He...