J.S.W. v. A.W.R. (In re V.D.W.)
| Decision Date | 03 December 2013 |
| Docket Number | No. 2012–CA–00884–COA.,2012–CA–00884–COA. |
| Citation | 152 So.3d 336 |
| Parties | In the Interest of a Minor, V.D.W. J.S.W., Appellant v. A.W.R. and T.J.S., Appellees. |
| Court | Mississippi Court of Appeals |
S. Christopher Farris, attorney for appellant.
Robert R. Marshall, attorney for appellees.
Before LEE, C.J., MAXWELL and FAIR, JJ.
MAXWELL, J., for the Court:
¶ 1. In a typical custody case between a natural parent and a third party, the doctrine of in loco parentis cannot be used by the third party to rebut the natural-parent presumption. But this is not a typical custody case.
¶ 2. Instead, this is a three-way custody action between (1) the natural mother, (2) the mother's ex-husband, who had supported, cared, and treated the child as his own, and (3) the man who turned out to be the child's biological father. And in this “very limited, unique situation,” the fact the ex-husband stood in loco parentis by his fatherly actions towards the child does rebut the natural-parent presumption.1 Thus, the chancellor erred by not considering the ex-husband on equal footing with his ex-wife and the biological father when determining which of the three should be awarded custody. We reverse the judgment awarding the ex-wife custody, and we remand this case for the chancery court to conduct an Albright analysis2 that takes into consideration whether it would be in the child's best interest for the ex-husband to be awarded custody.
Background Facts and Procedural History
¶ 3. Jake and Anne3 divorced in 2009. During their five-year marriage, two children were born—Vanessa, born five months after Jake and Anne married, and Brett, born a year and a half later. As part of their custody, support, and property-settlement agreement, both Jake and Anne received joint custody of the two children, alternating physical custody on a weekly basis.
¶ 4. But after ten months, both parties were dissatisfied with this arrangement. Anne filed a complaint for support, and Jake countered with a complaint for an emergency change of custody in which he alleged Anne was trying to move out-of-state with the children. The chancellor entered a temporary order preventing either party from moving until a final custody decision could be made.
¶ 5. Before the custody hearing could be held, Tommie filed a motion for custody, visitation, and paternity of Vanessa, after DNA testing had revealed that he was her biological father.
¶ 6. Prior to marrying, Anne and Jake had an intimate relationship. But Anne had a one-night stand with Tommie. When Tommie learned Anne was pregnant, based on the timing, he suspected the child might be his. But he also knew that Anne had been romantically involved with Jake. Anne and Jake married in June 2004, when Anne was seventeen weeks pregnant. And Jake was under the impression the child was his, so he was there for the child's delivery, cut the umbilical cord, and helped name her.
¶ 7. But in March 2007, when Vanessa was almost three years old, the couple received a phone message from Tommie's mother. The message said Tommie was about to deploy overseas for military duty. Tommie's mother said she had heard Anne had a baby in 2004 and wondered if it was Tommie's.
¶ 8. Anne vehemently denied that Vanessa was Tommie's child. But Jake decided to have a paternity test, which ruled him out as Vanessa's biological father. Despite knowing in March 2007 he was not Vanessa's biological father, Jake and Anne decided Jake would continue to raise Vanessa as his own daughter. But Jake and Anne's marriage went downhill after that, ending in divorce two and a half years later.
¶ 9. While the post-divorce support and custody issues were pending, Anne contacted Tommie about his likely being Vanessa's biological father. And after the DNA test confirmed this, Tommie filed his motion for custody, visitation, and paternity. The chancellor then heard four days of testimony, scattered between April 2011 and March 2012, concerning Jake's, Anne's, and Tommie's custody requests.
¶ 10. Because Tommie is the biological father of Vanessa, the chancellor found Tommie was entitled to the natural-parent presumption. Mississippi law presumes that, as between a natural parent and a third party, such as a grandparent, it is in the best interest of the child for the natural parent to be awarded custody. Hamilton v. Houston, 100 So.3d 1005, 1009 ( ¶ 13) (Miss.Ct.App.2012) (citations omitted). In this three-way custody dispute, the chancellor designated Anne and Tommie as the natural parents and Jake as a third party. And while the chancellor found Jake stood in loco parentis, based on his raising Vanessa as his own, the chancellor found that Jake's in loco parentis status could not rebut the natural-parent presumption.
¶ 11. Thus, the chancellor only considered whether Anne or Tommie should be awarded custody. After applying the factors under Albright, the chancellor determined it was in Vanessa's best interest that Anne be awarded custody and Tommie visitation. Tommie was also ordered to pay child support.
¶ 12. Though dubbing Jake a third party for custody purposes, the chancellor found Jake's in loco parentis status did entitle him to visitation. Because the chancellor found that phasing Jake out of Vanessa's life would have been detrimental to her, the chancellor awarded Jake visitation commensurate with Tommie's.
¶ 13. The judgment awarding Anne custody and Tommie and Jake visitation was entered March 23, 2012. In their briefs, Anne and Tommie assert Jake's notice of appeal from this judgment was untimely because the notice was not filed until June 1, 2012. But in making this assertion, they fail to consider the effect of Jake's Rule 59 motion on the time limit to file a notice of appeal.
¶ 14. Under Mississippi Rule of Appellate Procedure 4(a), “[e ]xcept as provided in Rules 4(d) and 4(e), ” the notice of appeal shall be filed “within 30 days after the date of entry of the judgment or order appealed from.” (Emphasis added). And under Rule 4(d), “[i]f any party files a timely motion of a type specified immediately below the time for appeal for all parties runs from the entry of the order disposing of the last such motion outstanding.” Among those specified motions is a motion to alter or amend the judgment under Rule 59(e) of the Mississippi Rules of Civil Procedure. M.R.A.P. 4(d).
¶ 15. On March 29, 2012, Jake filed a Rule 59(e) motion to alter or amend. This motion was timely because it was “filed not later than ten days after entry of the judgment.” M.R.C.P. 59(e). Therefore, Jake's thirty days to file a notice of appeal of the March 23, 2012 judgment did not begin until the chancellor denied Jake's motion on May 14, 2012. See M.R.A.P. 4(d). So Jake's notice of appeal filed on June 1, 2012, seeking appellate review of the March 23, 2012 judgment, was timely.
Discussion
¶ 16. In an appeal of a child-custody determination, our standard of review is narrow. We will not reverse unless the chancellor made factual findings that are manifestly wrong or clearly erroneous or applied an improper legal standard. Mabus v. Mabus, 847 So.2d 815, 818 ( ¶ 8) (Miss.2003). Here, we find no fault with the chancellor's factual findings. In fact, it is because of the chancellor's specific findings concerning Jake's relationship to Vanessa that we must find that the chancellor applied the wrong legal standard.
¶ 17. The chancellor found that Jake stood in loco parentis to Vanessa; that he had supported, cared, and treated her as his own child, even after he learned about her biological parentage; and that he had shared her custody and expenses after the divorce. This put Jake in a “very limited, unique situation [ ]” where his supportive actions towards the child—versus the natural parent's harmful actions—rebutted the natural-parent presumption. In re Smith, 97 So.3d 43, 47 ( ¶ 11) (Miss.2012).
¶ 18. This is certainly a unique custody dispute. More typically, the custody dispute is between the two natural parents or between a parent and non-parent, such as a grandparent. In a child-custody determination between two natural parents, the chancellor considers the factors under Albright to determine which natural parent custody should be awarded custody, based on the best interest of the child. Lucas v. Hendrix, 92 So.3d 699, 705 ( ¶ 17) (Miss.Ct.App.2012) (citing Albright v. Albright, 437 So.2d 1003, 1005 (Miss.1983) ). However, in a child-custody determination between a natural parent and a third party, such as a grandparent, the law presumes that it is in the best interest of the child for the natural parent to have custody. Id. at 705–06 (¶ 17) (citing McKee v. Flynt, 630 So.2d 44, 47 (Miss.1993) ); see Lorenz v. Strait, 987 So.2d 427, 434 ( ¶ 41) (Miss.2008) ( that, because “[g]randparents have no legal right [to] custody of a grandchild, as against a natural parent,” the natural-parent presumption applies in custody cases between grandparents and natural parents).
¶ 19. The natural-parent presumption is “not unassailable.” In re Custody of Brown, 66 So.3d 726, 728 ( ¶ 10) (Miss.Ct.App.2011) (citing Vaughn v. Davis, 36 So.3d 1261, 1264 ( ¶ 10) (Miss.2010)). But for the third party to rebut this presumption, he must clearly show “that (1) the parent has abandoned the child; (2) the parent has deserted the child; (3) the parent's conduct is so immoral as to be detrimental to the child; or (4) the parent is unfit, mentally or otherwise, to have custody.” In re Smith, 97 So.3d at 46 ( ¶ 9) ().
¶ 20. In this case, applying precedents concerning custody determinations between a natural parent and a grandparent, the...
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