Brown v. Anslum, 2017-CA-00028-COA
| Decision Date | 24 July 2018 |
| Docket Number | NO. 2017-CA-00028-COA,2017-CA-00028-COA |
| Parties | Justin Bryce BROWN, Appellant v. Kristin Franklin ANSLUM, Appellee |
| Court | Mississippi Court of Appeals |
ATTORNEY FOR APPELLANT: M. JUDITH BARNETT
ATTORNEYS FOR APPELLEE: JEFFREY BIRL RIMES SARAH, LINDSEY OTT
EN BANC.
WESTBROOKS, J., FOR THE COURT:
¶ 1. This appeal arises from a custody dispute between Justin Bryce Brown and Kristin Franklin Anslum. Brown appeals the decision of the Simpson County Chancery Court awarding him and Anslum joint physical and legal custody of their minor child. After review of the record, we affirm.
FACTS AND PROCEDURAL HISTORY
¶ 2. Brown and Anslum both lived with K.B.1 from the time of her birth until she was four months old; however, the two were never married. They separated on August 15, 2013. The separation spurred from an argument over free Saints football game tickets Anslum received from her boss. Because of conflicting stories, the actual events of that night are somewhat unknown.
¶ 3. Brown contends that he caught Anslum inviting another man to the game with her because he told Anslum they could not afford to attend. Anslum maintains that she was on the phone with Brown's mother asking her to babysit their minor child and Anslum's other child because Brown said he would not keep them even if he stayed home. Anslum alleges that Brown beat her up and hit her oldest daughter. However, Brown and his parents contend that Anslum knocked her head against the refrigerator and willfully fell to the floor. Further, they maintain that Anslum did not have any visible bruises after the alleged altercation.
¶ 4. After the separation, K.B. lived with Anslum from August 2013 to April 2014. In August 2013, Brown filed a complaint for determination of paternity and sole custody, and Anslum filed an answer and counter-claim, requesting sole custody of K.B. In November 2013, a temporary order was entered awarding Anslum temporary legal and physical custody subject to Brown's supervised visitation at his parents' home. However, in January 2014, Brown tested positive for methamphetamine. As a result, his right to visitation of K.B. was suspended. Subsequently, he took another drug test and passed. Then, upon the recommendation of the Guardian Ad Litem (GAL), the parties agreed to joint physical custody of K.B.
¶ 5. In both April 2014 and August 2014, Anslum was admitted to Brentwood Hospital. The first incident was because of an altercation between Anslum and her stepmother. Anslum alleged that her stepmother tried to choke her, but law enforcement reported seeing Anslum grabbing her own neck. The second incident was due to what was described as an overdose on Valium after a trip to Pensacola, Florida. It was alleged that Anslum was very intoxicated and could not adequately care for her children during the trip. However, Anslum disputes these allegations.
¶ 6. Brown's mother, Marcia, had custody of K.B. from April 2014 to August 2014 due to Anslum having a nervous breakdown and Brown failing his drug test. However, in July 2014, the GAL recommended that Brown receive the right to full custody of K.B., subject to Anslum's right to visitation every other week.
¶ 7. In 2016, Anslum's doctor gave her a good report and stated that Anslum was only on one medication at the time.2 Anslum also reported that her mood, maturity, and cognitive abilities had improved, and that her doctor expressed that she had consistently attended her appointments and had improved significantly.
¶ 8. In 2016, Brown was awarded temporary legal and physical custody of the minor child subject to Anslum's visitation rights. By this time, however, K.B. had already been living with Brown since August 2014—except when Brown's mother kept K.B. Anslum filed a petition for sole custody of K.B.
¶ 9. After a three-day trial, the chancellor awarded the parties joint physical and legal custody with the parties alternating their regular physical custody of K.B. Brown timely appeals.
STANDARD OF REVIEW
¶ 10. In Carter v. Escovedo , 175 So.3d 583, 585 (¶ 7) (Miss. Ct. App. 2015), this Court stated:
In child-custody decisions, the polestar consideration is the best interest of the child. We cannot substitute our judgment for the chancellor's. Instead, our standard of review is quite narrow. We only reverse child-custody determinations if the chancellor is manifestly wrong, clearly erred, or applied the wrong legal standard. When chancellors properly apply and consider the Albright[3 ] factors, there is no manifest error.
(Citations omitted).
DISCUSSION
¶ 11. Brown argues that the parties have to make an express "application" asking for joint custody in order for the chancellor to order joint custody. However, Brown does not cite any authority in favor of his argument outside of Mississippi Code Annotated section 93-5-24(2) - (3) (Rev. 2013). This code section states in part:
¶ 12. This Court has held that the application of joint custody may be made by one or both parents if the arrangement is in the best interest of the child. See Crider v. Crider , 904 So.2d 142, 148 (¶ 16) (Miss. 2005). As Anslum pointed out in her brief, in irreconcilable differences cases the court may award joint custody when the parties request the court to determine custody. The Mississippi Supreme Court has held that "when parties consent in writing to the court's determination of custody, they are consenting and agreeing to that determination and this meets the statutory directive of ‘joint application’ in § 93-5-24(2)." Id. at 148 (¶ 15). Thus, a mere request to determine custody satisfies the "application" requirement. Id.
¶ 13. Accordingly, we find this issue is meritless.
¶ 14. Next, Brown argues that the chancellor erred in his analysis of the Albright factors. Specifically, Brown argues that the chancellor erred when weighing the following seven factors:
(1) age, health, and sex of the child; (2) a determination of the parent who had the continuity of care prior to the separation; (3) which [parent] has the best parenting skills and which [parent] 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) moral fitness of the parents; and (7) other factors relevant to the parent-child relationship.
See Hollon v. Hollon , 784 So.2d 943, 947 (¶ 12) (Miss. 2001) (citing Albright , 437 So.2d at 1005 ).
¶ 15. "In order to determine whether or not the chancellor was manifestly wrong, clearly erroneous or abused his discretion in applying the Albright factors, we review the evidence and testimony presented at trial under each factor to ensure his ruling was supported by the record." Id. at (¶ 13). However, we note that the chancellor has "the ultimate discretion to weigh the evidence the way he sees fit." Johnson v. Gray , 859 So.2d 1006, 1013-14 (¶ 36) (Miss. 2003).
¶ 16. The chancellor found this factor to be neutral because K.B.'s age would not pose as a problem for transportation. Brown asserts that the chancellor erred because he did not consider the child's stability under this factor. This Court has previously found that the chancellor may consider the child's age, health, and sex together as a single factor or separately. See Flowers v. Flowers , 90 So.3d 672, 680 (¶ 30) (Miss. Ct. App. 2012). However, Brown fails to cite any authority that supports broadening this factor to include stability. "[F]ailure to cite any authority is a procedural bar, and [the] reviewing court is under no obligation to consider the assignment." In re Estate of Forrest , 165 So.3d 548, 550 (¶ 7) (Miss. Ct. App. 2015).
¶ 17. We acknowledge that the chancellor actually considered Anslum's stability when favoring Brown in the "stability of the home environment" factor. Therefore, the chancellor did not err in finding that this factor was neutral, and this issue is meritless.
¶ 18. Brown disagrees with the chancellor's determination that the continuity of care factor was neutral. He does not agree that Anslum exercised primary care for approximately two years prior to Brown obtaining physical custody of K.B. Brown uses the testimony of three witnesses to support his argument: (1) his mother, Marcia, testified that both parties took care of the minor child prior to the separation; (2) Anslum's alleged ex-husband, Josh Cox, testified about his dissatisfaction with Anslum's performance as a stay-at-home mother and wife; and (3) Shirley Franklin, Anslum's grandmother, testified that others took care of the minor child while Anslum was admitted in Brentwood Hospital.
¶ 19. The chancellor has the ability to weigh the evidence as he sees fit including, "the credibility of the witnesses and the weight of their testimony, as well as the interpretation of evidence where it is capable of more than one reasonable interpretation...." Brown v. Crum , 30 So.3d 1254, 1259 (¶ 16) (Miss. Ct. App. 2010) (citing Johnson , 859 So.2d at 1014 (¶ 36) ).
¶ 20. The chancellor found that there was evidence that both parties were a part of K.B.'s life, but that Anslum had exercised primary physical care for approximately a year or two as a stay-at-home mother. Therefore, the factor was neutral, and we find no error with the chancellor's finding of neutrality.
¶ 21. Brown disagrees that this factor favored him only slightly. The...
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