Darby v. Combs, 2015-CA-00793-COA

• Decision Date: 25 October 2016
• Docket Number: NO. 2015-CA-00793-COA,2015-CA-00793-COA
• Citation: 229 So.3d 136
• Parties: Monica Ashbrook DARBY and Andrew Ross Darby, Appellants v. Harold COMBS, Karron Combs and Crystal Johanna Combs, Appellees
• Court: Mississippi Court of Appeals

229 So.3d 136

Monica Ashbrook DARBY and Andrew Ross Darby, Appellants

v.Harold COMBS, Karron Combs and Crystal Johanna Combs, Appellees

NO. 2015-CA-00793-COA

Court of Appeals of Mississippi.

October 25, 2016

Rehearing Denied February 28, 2017

TRACY BUSTER WALSH, ATTORNEY FOR APPELLANTS

A.E. (RUSTY) HARLOW JR., CRYSTAL JOHANNA COMBS (PRO SE), KATHI CRESTMAN WILSON, ATTORNEYS FOR APPELLEES

BEFORE GRIFFIS, P.J., CARLTON AND FAIR, JJ.

CARLTON, J., FOR THE COURT:

¶1. Monica Darby, the paternal grandmother of Addie Darby, filed a petition seeking custody of Addie. Harold and Karron Combs (collectively, the Combses), the maternal great-grandparents of Addie, also filed a petition seeking custody of Addie. The chancellor awarded joint custody of Addie to both Monica and the Combses. Monica and her son, Andrew Darby (Drew), now appeal, arguing that: (1) the chancellor abused his discretion in awarding joint physical custody of Addie; (2) the chancellor erred in failing to provide her with any holiday visitation; (3) the chancellor abused his discretion in assessing a portion of the guardian ad litem (GAL) fee to Monica; and (4) the chancellor's award of child support is too vague and ambiguous. Finding no error, we affirm the chancellor's judgment.

FACTS

¶2. Crystal Combs and Drew Darby are the biological parents of Addie, who was born February 11, 2013. On August 20, 2103, Monica, Drew's mother, filed a petition for custody of, or, in the alternative, visitation with Addie. In her petition, Monica alleged that Addie's parents, Drew and Crystal, neglected Addie and could not properly care for her. The chancellor appointed a GAL to investigate Monica's allegations of abuse. The GAL found that the allegations of neglect were substantiated, opining that Crystal neglected Addie and placed her in harm.

¶3. On February 24, 2014, Monica applied for a temporary restraining order (TRO) seeking immediate custody of Addie. After an emergency hearing on the matter, the chancellor entered an order finding that Crystal suffered from a "major drug and alcohol problem," leading to her arrest. As a result, the chancellor placed Addie in Monica's temporary custody. The chancellor then set the TRO for review on March 18, 2014.

¶4. The Combses, Addie's maternal great-grandparents, requested to intervene into the case, seeking to file their own petition requesting custody of Addie. The chancellor allowed the Combses to intervene, and they filed a petition seeking custody of Addie. On April 15, 2014, the chancellor entered an order awarding the Combses visitation with Addie, stipulating that Addie could not be in Crystal's presence at any time.¹

¶5. At a trial on the matter held October 2, 2014, and continued until December 18, 2014, the chancellor heard testimony from Monica, the Combses, Crystal, Drew, and the GAL. The chancellor entered an opinion on January 23, 2015, and supplemented this opinion on February 2, 2015. In his order, the chancellor recognized that the natural parents, Crystal and Drew, were "admittedly unfit to have custody."² The chancellor then performed an Albright³ analysis and considered the report of the GAL, and ultimately found that "the best interest of the minor child shall be served by awarding joint physical custody to both the paternal grandmother [ (Monica) ] and the maternal grandparents." The chancellor explained that although the GAL recommended that Monica receive custody of Addie, the chancellor possessed concern

about the violence in the home of Monica as evidenced in the past when her husband and [Drew] ... had a physical altercation resulting in injuries and charges. Furthermore, Drew has some mental health issues, that, which on his medication appear in control, however, only time will tell. This court believes that with the minor child residing with Monica while Drew is attending school in Arkansas, and at Harold and Karron's every other weekend and predominately during the summer is the safest route.

¶6. The chancellor set forth that "Monica will have custody of Addie during the school times[,]" and "[d]uring holidays, alternating weekends, and summer months, Addie will be in the custody of Harold and Karron with strict instructions form this court to supervise any and all visitation with ... Crystal and Drew." The chancellor divided up Addie's holiday schedule, allowing Monica to have custody of Addie from 11 a.m. on Christmas Day until December 30 at 5 p.m.

¶7. The chancellor further stated that the GAL fee, set by the court, amounted to $3,000. The chancellor divided the fee equally between the Combses and Monica, with Monica to pay $1,500 and the Combses to pay $1,500.

¶8. Finally, the chancellor ordered that both Crystal and Drew "shall pay $100 per month by the 5th of each month as child support to whomever has custody of Addie."

¶9. Monica filed a motion to reconsider on February 26, 2015. As a result, the chancellor clarified his opinion with an amended judgment issued on April 27, 2015. In the amended judgment, the chancellor awarded joint physical and legal custody to both Monica and the Combses. The chancellor also clarified the holiday visitation schedule, dividing custody of Addie between Monica and the Combses.

¶10. Monica now appeals, arguing that: (1) the chancellor abused his discretion in awarding joint physical custody of Addie; (2) the chancellor erred in failing to provide her with any holiday visitation; (3) the chancellor abused his discretion in assessing a portion of the GAL fee to Monica; and (4) the chancellor's award of child support is too vague and ambiguous.

STANDARD OF REVIEW

¶11. When reviewing a chancellor's award of child custody, we will only reverse a chancellor's judgment where the chancellor is manifestly wrong or applied an erroneous legal standard. J.P. v. S.V.B. , 987 So.2d 975, 978–79 (¶7) (Miss. 2008). Furthermore, "[w]e will not reverse the chancellor's factual findings where there is substantial evidence in the record supporting [them]." Id . (internal quotation marks omitted); Lucas v. Hendrix , 92 So.3d 699, 705 (¶15) (Miss. Ct. App. 2012). We recognize that "it is the responsibility of this Court, like the chancellor, to make the best interest of the child our polestar consideration." Id . (citing Hensarling v. Hensarling , 824 So.2d 583, 587 (Miss. 2002) ).

¶12. On appeal, we review questions of law de novo. Lucas , 92 So.3d at 705 (¶15).

DISCUSSION

I. Joint Custody

¶13. Monica first argues that the chancellor erred in awarding joint physical custody of Addie to her and the Combses. Monica asserts that joint custody is not an appropriate remedy between two nonparent third parties. She claims that Mississippi statutes authorize an award of joint custody between parents of a child, but relies upon Mississippi Code Annotated section 93–5–24 (Rev. 2013) for her assertion that the laws make no provision for such an award between nonparent third parties. Monica further argues that if this Court interprets the joint-custody agreement to provide de facto custody to Monica, then as Addie's great-grandparents, the Combses are not entitled to receive extensive visitation under the agreement.

¶14. The Combses assert that Monica failed to raise in her motion for reconsideration the issue that the chancellor lacked authority to grant joint custody, and the Combses argue that this issue was therefore waived. Ainsworth v. Ainsworth , 139 So.3d 761, 765–66 (¶19) (Miss. Ct. App. 2014). The Combses also argue that the chancellor properly awarded joint custody to both parties.⁴

¶15. "This Court will not reverse a chancellor's decision when supported by substantial evidence unless the chancellor either abused his discretion or based the decision on manifest factual or legal error." McCarty v. McCarty , 52 So.3d 1221, 1224–25 (¶11) (Miss. Ct. App. 2011) (quoting Lorenz v. Strait , 987 So.2d 427, 430 (¶12) (Miss. 2008) ).

¶16. In Albright v. Albright , 437 So.2d 1003, 1005 (Miss.1983), the Mississippi Supreme Court held:

We reaffirm the rule that the polestar consideration in child custody cases is the best interest and welfare of the child. The age of the child is subordinated to that rule and is but one factor to be considered. Age should carry no greater weight than other factors to be considered, such as: health [ ] and sex of the child; a determination of the parent that has had 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; the employment of the parent and responsibilities of that employment; physical and mental health and age of the parents; emotional ties of parent and child; moral fitness of parents; the home, school[,] and community record of the child; the preference of the child at the age sufficient to express a preference by law; stability of home environment and employment of each parent[;] and other factors relevant to the parent-child relationship.

¶17. Upon review of this appeal, we will first examine the record and the chancery court's findings and judgment. Here, the record reflects that the chancellor considered each of the Albright factors and summarized his findings in the February 4, 2015 supplemental opinion:

Age, Health and Sex of Child—This factor favors neither party.

Continuity of Care—This factor favors Monica as she has had full custody of Addie since February 24, 2014. This of course was the primary reason this [c]ourt elected to place the child with Monica during the school year.

Which has the best parenting skills—Both Monica and [the Combses] have had difficulty with parenting Drew and Crystal. Drew with mental health issues as well as drug issues, and Crystal with lying and drug issues. This [c]ourt, however, believes both are better for the trials and tribulations they have gone through, and this is why this [c]ourt finds this factor even or neutral.

Moral fitness—While the [c]ourt never condones allowing minor children to reside in the same house

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