Harden v. Scarborough, 2016–CA–01393–COA

• Decision Date: 27 March 2018
• Docket Number: NO. 2016–CA–01393–COA,2016–CA–01393–COA
• Citation: 240 So.3d 1246
• Parties: Sean HARDEN, Appellant v. Danielle Dawn SCARBOROUGH, Appellee
• Court: Mississippi Court of Appeals

240 So.3d 1246

Sean HARDEN, Appellant

v.Danielle Dawn SCARBOROUGH, Appellee

NO. 2016–CA–01393–COA

Court of Appeals of Mississippi.

March 27, 2018

ATTORNEYS FOR APPELLANT: HAROLD O. GRISSOM JR., Gulfport, PRESTON ANDREW GRISSOM

ATTORNEY FOR APPELLEE: DIANNE HERMAN ELLIS, Ocean Springs

BEFORE LEE, C.J., WILSON AND WESTBROOKS, JJ.

WILSON, J., FOR THE COURT:

¶ 1. In this child custody dispute, the father, Sean Harden, argues that the chancellor erred by awarding physical custody of the parties' son, Rhett, to the mother, Danielle Scarborough. Harden also argues that the chancellor erred in setting child support, by considering hearsay, by enjoining both parties from routinely visiting Rhett's daycare or school during the day, and by enjoining both parties from sharing pictures of Rhett on social media. For the reasons that follow, we find no error and affirm the chancellor's rulings on child custody and child support. We also find that Harden's hearsay argument is without merit. However, we reverse and render the orders restricting the parties' visits to Rhett's daycare and prohibiting them from sharing pictures of the child on social media. We reverse on those issues because there was no evidence that either issue had caused any harm to the child or that either parent had visited the school or shared photos inappropriately.

FACTS AND PROCEDURAL HISTORY

¶ 2. Harden and Scarborough began dating around August 2013. Their son, Rhett, was born in October 2014. Harden and Scarborough never married but cohabited at Harden's home from June 2014 until May 2015. Harden is a high school teacher and coach. He resigned as head football coach at the school during this litigation but continues to teach and coach powerlifting. Scarborough is a registered nurse at a hospital.

¶ 3. On May 25, 2015, Scarborough, with Rhett, moved out of Harden's house. On June 1, 2015, she filed a complaint to establish paternity, custody, and child support. On June 17, 2015, Harden filed an answer and counterclaim for custody and child support.

¶ 4. After Scarborough moved out of Harden's house, she enrolled Rhett in a new daycare without notifying Harden, and she did not allow Harden to see Rhett again until July 5, 2015. Scarborough testified that the new daycare was closer to her work, and her daughter from a prior relationship had attended it. Scarborough testified that she denied Harden visitation from May 25 to July 5 on the advice of her former attorney because there was no court order in place. During that time, Scarborough and Harden communicated primarily by text message and through their attorneys. The record includes hundreds of pages of the parties' text messages from both before and after their separation.

¶ 5. On July 21, 2015, the court entered a temporary order granting Scarborough and Harden joint legal custody, Scarborough temporary physical custody, and Harden weekend visitation. The court also ordered Harden to pay child support of $541.50 per month.

¶ 6. A trial was held March 22–25, 2016. Scarborough testified and called her mother, father, and daughter as witnesses. Harden testified and called his mother as a witness. A fellow teacher and former principal at Harden's school also testified briefly.

¶ 7. The chancellor ruled from the bench at the conclusion of the trial and subsequently entered a written judgment establishing custody, visitation, and support. The chancellor made findings under Albright¹ and awarded Scarborough physical custody of Rhett with joint legal custody and visitation for Harden. The chancellor awarded Harden visitation consisting of alternating weekends, alternating Thursday afternoons, most of the summer, and specified holidays. The chancellor ruled that child support would remain at $541.50 per month, as set by the temporary order. The final judgment also prohibited both Harden and Scarborough from posting pictures of Rhett on social media. Finally, the judgment provided that Harden and Scarborough were encouraged to participate in Rhett's extracurricular and school activities, including all parties and special events at his school or daycare, but neither party should "routinely visit any daycare or school, for lunch or otherwise," or without "a specific purpose for such visit."

¶ 8. On appeal, Harden argues that the chancellor misapplied the "tender years doctrine" and erred in applying most of the Albright factors. Harden also argues that the chancellor erred in setting child support because the chancellor failed to account for Harden's resignation as football coach and anticipated loss of income. Finally, Harden argues that the chancellor abused his discretion by enjoining both parties from posting pictures of Rhett on social media and by limiting visits to Rhett's school or daycare. Scarborough did not file a cross-appeal, but in her brief on appeal she asserts that the chancellor erred by ordering that Rhett's last name should be changed to Harden on his birth certificate and other records. She also asserts that Harden's appeal is frivolous and requests an award of attorney's fees. Additional facts are discussed below as relevant and necessary.

ANALYSIS

I. Child Custody

¶ 9. "A chancellor's custody decision will be reversed only if it was manifestly wrong or clearly erroneous, or if the chancellor applied an erroneous legal standard." Smith v. Smith , 97 So.3d 43, 46 (¶ 7) (Miss. 2012). "[T]his Court cannot reweigh the evidence and must defer to the chancellor's findings of the facts, so long as they are supported by substantial evidence." Hall v. Hall , 134 So.3d 822, 828 (¶ 21) (Miss. Ct. App. 2014). Thus, on appeal in a child custody case, the issue is not whether this Court "agrees with the chancellor's ruling," but only whether "the chancellor's ruling is supported by credible evidence." Hammers v. Hammers , 890 So.2d 944, 950 (¶ 14) (Miss. Ct. App. 2004).

¶ 10. "[T]he polestar consideration in child custody cases is the best interest and welfare of the child." Albright , 437 So.2d at 1005. In evaluating the child's best interest, the chancellor must consider the following factors: (1) age, health, and sex of the child; (2) which parent had "continuity of care prior to the separation"; (3) "which has the best parenting skills"; (4) which has "the willingness and capacity to provide primary child care"; (5) both parents' employment responsibilities; (6) "physical and mental health and age of the parents"; (7) "emotional ties of parent and child"; (8) "moral fitness of the parents"; (9) "the home, school and community records of the child"; (10) the child's preference, if the child is at least twelve years old; (11) the stability of the home environment and employment of each parent; and (12) any "other factors relevant to the parent-child relationship" or the child's best interest. Id.

¶ 11. The chancellor must address each Albright factor that is applicable to the case. See Powell v. Ayars , 792 So.2d 240, 244 (¶ 10) (Miss. 2001). However, the chancellor need not decide that each factor favors one parent or the other. See Weeks v. Weeks , 989 So.2d 408, 411 (¶ 12) (Miss. Ct. App. 2008). Nor does Albright require that "custody must be awarded to the parent who ‘wins’ the most factors." Blakely v. Blakely , 88 So.3d 798, 803 (¶ 17) (Miss. Ct. App. 2012). "The point of Albright is to identify the custody arrangement that would be in the child's best interest—not to determine what is in either parent's best interest or which parent is the better person." Vassar v. Vassar , 228 So.3d 367, 375 (¶ 26) (Miss. Ct. App. 2017) (citing Reno v. Reno , 253 Miss. 465, 475, 176 So.2d 58, 62 (1965) ); Hollon v. Hollon , 784 So.2d 943, 947 (¶ 12) (Miss. 2001). "[T]he 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). We review the chancellor's application of the factors for manifest error, giving deference to the weight that he assigned each factor.

Smith v. Smith , 206 So.3d 502, 513 (¶ 24) (Miss. 2016).

¶ 12. Harden claims that the chancellor erred in two ways when he awarded physical custody of Rhett to Scarborough. First, Harden claims that the chancellor misapplied the "tender years doctrine" by requiring him to prove that Scarborough was an unfit parent. Second, Harden argues that the chancellor's specific findings and ultimate decision under Albright lack support in the evidence.

¶ 13. We begin by addressing Harden's "tender years" argument. Prior to the 1980s, our Supreme Court "held that if the mother of a child of tender years ... is ... fit, then she should have custody." Law v. Page , 618 So.2d 96, 101 (Miss. 1993). However, "over the years, the tender-years doctrine has been diminished and is now only a presumption." Smith v. Smith , 206 So.3d 502, 513 (¶ 26) (Miss. 2016) (citing Law ). "The doctrine is ‘even less binding when the child is male.’ " Id. (quoting Law ). Today, "age is only one of several factors to be considered" under Albright . Id. (quoting Mercier v. Mercier , 717 So.2d 304, 317 (¶ 14) (Miss. 1998) ); Deborah H. Bell, Mississippi Family Law § 12.01[4][a] (2d ed. 2011) (stating that Mississippi has "abandoned the maternal preference" and that a child's age is only one of several factors considered in a custody decision).²

¶ 14. The chancellor's ruling in this case was consistent with the law as it currently stands. The final judgment states in relevant part:

While there is a preference for putting children of "tender years" with the mother as opposed to the father, in the event that the father has demonstrated that he is able to handle the young child as well as mother, then that difference does not exist. There was a good bit of testimony with regard to that .... [T]he Court does not find that it is a major factor in this case. This factor is neutral.

This finding was also consistent with the chancellor's statements during his bench ruling. Harden points to comments that the chancellor made prior...