Crider v. Crider, No. 2003-CT-01066-SCT.

• Decision Date: 31 March 2005
• Docket Number: No. 2003-CT-01066-SCT.
• Citation: 904 So.2d 142
• Parties: Lainie Bell CRIDER v. John Paul CRIDER, Jr.
• Court: Mississippi Supreme Court

904 So.2d 142

Lainie Bell CRIDER v. John Paul CRIDER, Jr.

No. 2003-CT-01066-SCT.

Supreme Court of Mississippi.

March 31, 2005.

John A. Ferrell, Booneville, attorney for appellant.

Jason D. Herring, attorney for appellee.

EN BANC.

ON WRIT OF CERTIORARI

COBB, Presiding Justice, for the Court.

¶ 1. This case addresses the authority of a chancellor to grant joint custody of a child to its parents in an irreconcilable differences (ID) divorce proceeding. Although it is a case of first impression for this Court, the Mississippi Court of Appeals has interpreted Miss.Code Ann. § 93-5-24(2)¹ to prohibit a chancellor from awarding joint custody in ID cases unless both parents have specifically requested joint custody. Thus, when one or both parties to an ID divorce request primary custody, but both parties consent in writing for the chancellor to make the custody determination, the Court of Appeals has held that a chancellor is prohibited from granting joint custody, even if the chancellor determines that joint custody is in the child's best interest. We reject the Court of Appeals' interpretation because it is not consistent with our statutory or case law, which both require a chancellor to make determinations that are in the best interest of the child in all circumstances.

FACTS

¶ 2. John and Lainie Crider are parents of a son who was born September 5, 2001. Approximately a year later, the Criders separated, and John filed for divorce on October 11, 2002, on grounds of adultery and in the alternative irreconcilable differences. Lainie filed a cross claim for divorce on grounds of habitual cruel and inhuman treatment and in the alternative irreconcilable differences. Each requested sole custody of their son, with visitation for the other party.

¶ 3. At the January 13, 2003, trial, John and Lainie filed a written consent to a divorce on the ground of irreconcilable differences and asked the chancellor to decide the remaining issues of primary custody, property settlement, and support, pursuant to Miss.Code Ann. § 93-5-2(3).² The chancellor conducted a two-day trial, in which she heard testimony from numerous witnesses, including both parents of each party, friends of the parties, and Lainie's two sisters. After a thoughtful and thorough analysis of the Albright³ factors in relation to the facts of the case, the chancellor found that "both parties have their flaws. They are equally good and equally bad." She found it particularly significant that the parties, on their own initiative, had essentially split time in caring for the child since the separation. Additionally, both had very supportive families that were willing to help care for their son. She then found that, although joint custody was not specifically requested, joint custody was in their son's best interest. "[B]oth parties love this child and enjoy a comparable bond with him, and... his best interest would not be served by severing the bond he holds with each parent at this delicate age." She awarded joint legal and physical custody until the summer prior to their son's beginning kindergarten. She also stated that the matter should be reset for a hearing in June, 2005, at which time a review of custody would be made.

¶ 4. Lainie appealed, asserting that § 93-5-24(2) prohibits the chancellor from awarding joint custody unless both parties specifically request that joint custody be awarded. A divided Court of Appeals agreed and reversed the chancellor, stating that it had interpreted § 93-5-24(2) on several occasions to mean that each party must consent to joint custody in an ID divorce proceeding.⁴ Crider v. Crider, 905 So.2d 706, 2004 WL 1728594 (Miss.Ct.App.2004). However, the Court of Appeals pointed out that the rightness of the need for a joint request for joint custody remains unaddressed by this Court. Id. at *3, at 709. The two dissenting Court of Appeals judges argued that awarding joint custody is discretionary with the court. Id. at *3-*4, at 709-10 (Lee, J., dissenting).

¶ 5. John filed a petition for certiorari, arguing that this is a fundamental issue of broad public importance that this Court should determine. We agreed and granted certiorari. The issue, in essence, is whether a statute which is susceptible to multiple interpretations should be interpreted to prohibit a chancellor from awarding custody based on the best interest of a child in ID divorce cases. Because we hold that it should not, we reverse the Court of Appeals' judgment and affirm the chancellor's judgment.

ANALYSIS

¶ 6. Mississippi case law has clearly declared time and time again that the polestar consideration in all cases dealing with child custody and visitation is the best interest and welfare of the child. Brekeen v. Brekeen, 880 So.2d 280, 283 (Miss.2004); Woodell v. Parker, 860 So.2d 781, 788 (Miss.2003); Sellers v. Sellers, 638 So.2d 481, 485 (Miss.(1994); Moak v. Moak, 631 So.2d 196, 198 (Miss.1994); Albright v. Albright 437 So.2d 1003, 1005 (Miss.1983). The Legislature, in Miss.Code Ann. § 93-5-24(1) states: "Custody shall be awarded as follows according to the best interests of the child:. ..." (emphasis added). Additionally, in 1996 this Court departed from the then-existing case law in a custody modification case, because it was not in the best interest of the child, stating:

However, we take this opportunity to clarify that a chancellor is never obliged to ignore a child's best interest in weighing a custody change; in fact, a chancellor is bound to consider the child's best interest above all else. "Above all, in `modification cases, as in original awards of custody, we never depart from our polestar consideration: the best interest and welfare of the child.'"

Riley v. Doerner, 677 So.2d 740, 744 (Miss.1996) (citing Ash v. Ash, 622 So.2d 1264, 1266 (Miss.1993) (citing Marascalco v. Marascalco, 445 So.2d 1380, 1382 (Miss.1984))) (emphasis added).

¶ 7. In Morris v. Morris, 758 So.2d 1020 (Miss.Ct.App.1999), the Court of Appeals

first interpreted the statutory language of Miss.Code Ann. § 93-5-24(2), which reads: "[j]oint custody may be awarded where irreconcilable differences is the ground for divorce, in the discretion of the court, upon application of both parents." Miss.Code Ann. § 93-5-24(2) (emphasis added). This subsection is part of the general joint custody statute.⁵ As we discuss below, because the statute does not define what is meant by "application of both parents," the wording of this statute is susceptible to varying interpretations, particularly in light of the history and language of § 93-5-2,⁶ the ID divorce statute.

¶ 8. A brief historical summary of the adoption and modifications of the two statutes at issue in the present case is helpful.⁷ Prior to the adoption of the ID divorce statute, a party seeking a divorce was required to prove that he or she deserved the divorce and that the other party was at fault. The court would then determine custody, property settlement and support issues. When the ID divorce statute was adopted in 1976, the parties to an ID divorce were required to agree in writing on all issues, including custody, property distribution and support, without court direction, prior to a divorce being granted. Although the ID divorce statute was seen by many as a major step forward in divorce law in Mississippi, the requirement that parties having "irreconcilable differences" must "agree" to the major questions of custody, property, and support, without the court's help, was seen as unworkable. After the adoption of the ID divorce statute, we explained its shortcomings:

Today's decision and our recent decision in Marble v. Marble, 457 So.2d 1342 (Miss.1984), make apparent, however, that further improvements in our law are needed. As enlightened and desirable as was the enactment of the Irreconcilable Differences Act in 1976, the job has not yet been completed. Indeed, these cases reveal what I regard as a congenital defect in our Irreconcilable Differences Act-it facilitates, even encourages, financial blackmail.

I speak here of the requirement in the law that, before a divorce may be granted on grounds of irreconcilable differences, the parties must have voluntarily negotiated and entered into an agreement respecting the custody and maintenance of children as well as all matters touching alimony and the settlement of their respective property rights.

Gallaspy v. Gallaspy, 459 So.2d 283, 286-87 (Miss.1984). See also Wilson v. Wilson, 547 So.2d 803, 805 (Miss.1989)

("However viable a theory of freedom of contract in other contexts, it is an oxymoron in divorce cases."). This Court in Gallaspy encouraged the Legislature to add a thirteenth ground, of irreconcilable differences, to the fault-based grounds for divorce under § 93-5-1, which would be treated the same as the other twelve, in that the court would determine custody, property settlement and support issues. Gallaspy, 459 So.2d at 288.

¶ 9. In 1983, the Legislature adopted § 93-5-24, the joint custody statute, which delineated the types of joint custody available and to whom joint custody could be awarded. The language of subsection (2) tracked the requirement that parties to an ID divorce were required to submit a written agreement pertaining to custody.

¶ 10. In 1990, the Legislature finally added subsection (3)⁸ to § 93-5-2, which allowed the parties to submit custody and support issues to the court for resolution. To facilitate the court's involvement, the consent "must be in writing, signed by both parties personally, must state that the parties voluntarily consent to permit the court to decide such issues, which shall be specifically set forth in such consent, and that the parties understand that the decision of the court shall be a binding and lawful judgment...." Miss.Code Ann. § 93-5-2(3).

¶ 11. In light of timing of the statutes and their modifications, it is reasonable to conclude that the "application of both parents" language was...