Crider v. Crider, 2003-CA-01066-COA.
| Decision Date | 03 August 2004 |
| Docket Number | No. 2003-CA-01066-COA.,2003-CA-01066-COA. |
| Citation | 905 So.2d 706 |
| Parties | Lainie Bell CRIDER, Appellant v. John Paul CRIDER, Jr., Appellee. |
| Court | Mississippi Court of Appeals |
John A. Ferrell, Booneville, attorney for appellant.
Jason D. Herring, attorney for appellee.
Before SOUTHWICK, P.J., MYERS and CHANDLER, JJ.
SOUTHWICK, P.J., for the Court.
¶ 1. John Paul Crider, Jr. and Lainie Bell Crider were granted joint custody of their son. Ms. Crider appeals arguing that this was procedurally improper since both parties did not request joint custody in this divorce on the ground of irreconcilable differences. We find merit in her argument and consequently reverse.
¶ 2. The Criders were married in 2000. In 2001 they had a son. They filed for divorce in 2002, both seeking custody of their son. The Criders consented to a divorce on the ground of irreconcilable differences. The chancery court was left to decide the custody of the child. After a trial, the chancellor awarded joint legal and physical custody of the child until June 2005, which was the start of the summer before the youngster would enter school. The chancellor directed that the matter be set for review in June 2005 to reevaluate custody.
¶ 3. In order for this Court to evaluate the issues presented on appeal, the case must be properly in our jurisdiction. Only a final order in which no issues remain to be resolved may be appealed. Cortesi v. Cortesi, 566 So.2d 702, 703 (Miss.1990). A final judgment is one which determines the case on its merits. BRIDGES & SHELSON, GRIFFITH MISSISSIPPI CHANCERY PRACTICE (2000 Ed.), § 609. Mr. Crider argues that the April 2003 judgment from which the appeal was taken is not final because it required a review of custody in June 2005.
¶ 4. We look to statutory law for guidance on this issue. Miss. Code Ann. § 93-5-23 (Supp.2003). Domestic judgments are frequently the subject of additional proceedings because of the continuing jurisdiction of the chancellor over the parties.
BRIDGES & SHELSON, GRIFFITH MISSISSIPPI CHANCERY PRACTICE (2000 Ed.), § 24.
¶ 5. Here the chancellor forecast that a review of custody would be necessary at a specific point in the future. That formal recognition did not prevent the 2003 judgment from being final. Whether stated explicitly as here or left unstated, custody orders may be modified. They may even be modified, though this should rarely be done, when the initial judgment is being appealed and a material change in circumstances since the date of the appealed judgment is shown. Halle v. Harper, 869 So.2d 439, 440 (Miss.Ct.App.2004). The wording in this judgment does not keep it from being considered a final one.
¶ 6. Ms. Crider argues that, since this divorce was granted on the ground of irreconcilable differences, the chancellor may not award joint custody unless both parties have requested it. Here, neither party requested joint custody.
¶ 7. A statute provides that "[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) (Supp.2003). This Court has in several precedents interpreted the statute to require the consent of each parent before joint custody may be awarded in an irreconcilable differences divorce. E.g., Wolfe v. Wolfe, 766 So.2d 123, 127 (Miss. Ct.App.2000)
.
¶ 8. In the Criders' divorce pleadings, both parties consented to a divorce on the ground of irreconcilable differences. The parents asked that, among other things, the chancellor determine the "primary care, custody and control of the minor child of the parties"; neither party requested joint custody and instead sought a determination of "primary care."
¶ 9. Here, the chancellor did a thorough evaluation of the Albright factors. Albright v. Albright, 437 So.2d 1003 (Miss. 1983). Upon her evaluation, the chancellor found that She then determined it was in the best interest of the child for his parents to have joint custody until he was ready to enter kindergarten. The chancellor acknowledged her order did not comply with Section 93-5-24(2). She then emphasized that the parties had shared custody until trial and this voluntary behavior was an affirmation that the parties would accept joint custody. We do not find joint custody prior to divorce to constitute an implicit request for joint custody once the marriage is dissolved. Until a judicial arbiter makes the decision on custody, parents prior to divorce may find that agreeing to shared custody is the only attainable option. That is not a request to make such custody the permanent arrangement.
¶ 10. The chancellor in her decision discussed another case from this Court in which an award of joint custody until a child reached kindergarten was affirmed. Daniel v. Daniel, 770 So.2d 562, 563 (Miss. Ct.App.2000). The chancellor there held that once the child began school, primary custody would be with the father. Id. This last point was the focus of the mother's appellate argument, and neither party sought to set aside the earlier joint custody. We therefore did not address an unraised issue. Unlike Daniel, Ms. Crider is objecting to joint custody.
¶ 11. The dissent notes its continuing disagreement with the position taken by the Court on this question. We first held in 1999 that there must be an agreement by both parties for the chancellor to award joint custody in a divorce on the grounds of irreconcilable differences. Morris v. Morris, 758 So.2d 1020, 1021 (Miss.Ct.App. 1999). This Court later gave a thorough explanation of the legislative and statutory history behind this requirement of a mutual agreement for joint custody. Dearman v. Dearman, 811 So.2d 308, 313-14 (Miss. Ct.App.2001). Summarizing the numerous recent decisions in this area, a prominent scholar in the field of this state's domestic law concluded that "[i]t is beyond the power of the chancery courts, however, to order or to grant joint custody, either legal or physical, in divorces concluded on irreconcilable differences unless the parties jointly agree to such a custodial arrangement." HAND, MISSISSIPPI DIVORCE, ALIMONY & CHILD CUSTODY (6th ed.2003), § 18-2 n. 10.
¶ 12. There are important benefits in all areas of the law, but perhaps particularly in domestic relations, for an appellate court to maintain consistency in its interpretations. It is true that the rightness of the need for a joint request for joint custody remains unaddressed by the highest court in the state. Still, unless the Supreme Court ultimately takes a contrary position, we adhere to our precedents in this area.
¶ 13. Joint custody of children may not be awarded in a divorce based on the grounds of irreconcilable differences unless requested in some manner by both parents. We have given section 93-5-24(2) its natural interpretation, without straining that language to fit any conception of how the statute might better be written. It was beyond the discretion of the chancellor to award joint custody in this case. Consequently, we reverse and remand to the chancellor to award primary custody based on an evaluation of the Albright factors.
¶ 14. THE JUDGMENT OF THE CHANCERY COURT OF ALCORN COUNTY IS REVERSED AND REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS...
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Crider v. Crider, No. 2003-CT-01066-SCT.
...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 remain......
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Thames v. Thames, 2014–CA–00173–COA.
...sole custody of Sofia when she started five-year-old kindergarten. This issue was addressed in a jurisdictional context in Crider v. Crider, 905 So.2d 706, 707–08 (¶¶ 3–5) (Miss.Ct.App.2004), which was reversed on other grounds. This Court stated that “to evaluate the issues presented on ap......