McKee v. Flynt, 91-CA-0987

• Decision Date: 23 December 1993
• Docket Number: No. 91-CA-0987,91-CA-0987
• Citation: 630 So.2d 44
• Parties: Darren McKEE v. Natalie (McKee) FLYNT.
• Court: Mississippi Supreme Court

Page 44

630 So.2d 44

Darren McKEE v. Natalie (McKee) FLYNT.

No. 91-CA-0987.

Supreme Court of Mississippi.

Dec. 23, 1993.

Joseph C. Langston, Langston Langston Michael & Bowen, Booneville, for appellant.

Michael D. Cooke, Iuka, for appellee.

Before PRATHER, P.J., and BANKS and McRAE, JJ.

PRATHER, Presiding Justice, for the Court:

I. INTRODUCTION

This is a divorce case appealed from the Chancery Court of Tishomingo County. The chancellor awarded Natalie McKee (Flynt) ¹ a divorce from her husband, Darren McKee, on the ground of habitual cruel and inhuman treatment on September 9, 1991, and awarded custody of the couple's child, Haley, to both the maternal and paternal grandparents, with the natural parents having visitation rights. From this ruling, Darren appeals to this Court assigning as error the following:

I. WHETHER THE TRIAL COURT ERRED IN GRANTING CUSTODY OF THE MINOR CHILD TO THE GRANDPARENTS, NON-PARTIES, AND NOT GRANTING CUSTODY OF THE CHILD TO THE APPELLANT.

II. WHETHER THE TRIAL COURT ERRED IN AWARDING THE APPELLEE A DIVORCE ON THE GROUNDS OF HABITUAL CRUEL AND INHUMAN TREATMENT.

III. WHETHER THE TRIAL COURT ERRED IN NOT GRANTING THE APPELLANT A DIVORCE ON THE GROUNDS OF ADULTERY.

IV. WHETHER THE TRIAL COURT ERRED IN NOT RECOGNIZING THE VALIDITY OF A POST-NUPTIAL AGREEMENT ENTERED INTO BY THE PARTIES.

II. STATEMENT OF THE FACTS

Darren McKee and Natalie McKee (Flynt) were married on January 10, 1987. At the time of the marriage, Natalie was sixteen (16) years old, and was pregnant; Darren was twenty-one (21) years old. On January 31, 1987, Natalie suffered a miscarriage. Darren had hit her in the stomach; however, there was no evidence admitted that proved this was the cause of the miscarriage. Also, Darren denied hitting her in the stomach. In September of 1987, Natalie again became pregnant and Haley Elizabeth was born on May 18, 1988. Natalie left Darren on October 26, 1988, and took Haley. During the entire separation, from October 1988, until September, 1989, Natalie and Haley lived with Natalie's parents.

During this period of separation, the parties filed for a divorce which was later dismissed. In dismissing this action, the parties signed on September 22, 1989, what they have termed a "post-nuptial" agreement, in consideration for their mutual promises that the divorce action be dismissed. In addition, this agreement provided that, should the parties in the future separate or obtain a divorce, Darren would have exclusive custody of the minor child, Haley, and would receive all of the couple's jointly acquired property, with the exception of Natalie's clothes and other personal items.

Following these events, the couple reconciled. This reconciliation was to be short-lived. On November 4, 1989, Natalie again left Darren and returned to live with her parents. This time Natalie did not take Haley with her to her parents.

On November 14, 1989, Natalie again filed for divorce. She stated her grounds for divorce as habitual cruel and inhuman treatment, or in the alternative, irreconcilable differences. In this complaint, Natalie sought custody of Haley and also payment of child support. In his answer to Natalie's complaint, Darren cross-complained for divorce on the grounds of adultery, or in the alternative, irreconcilable differences. Darren also prayed for custody of Haley.

The trial of the case began on May 2, 1990. Prior to the testimony of any witnesses, Darren withdrew his cross-bill for divorce, but continued to seek custody of Haley. At the conclusion of this day's testimony, the chancellor continued the case until June 28, 1990. However, this case was not concluded until June 6, 1991. One reason for this long delay between the first and second day of trial was Natalie's pregnancy and birth of her second child, Erica, on November 15, 1990. Natalie admitted that the father of this child was not her husband, Darren.

Following the first day of trial, Darren amended his answer to again include a complaint for divorce on the grounds of adultery, or in the alternative, irreconcilable differences.

The second and final day of this trial was on June 6, 1991. On August 13, 1991, the chancellor entered his opinion. In this opinion, he granted Natalie a divorce from Darren on the ground of habitual cruel and inhuman treatment. Further, he awarded custody of the minor child, Haley, to the grandparents with custody to be divided between both the maternal and paternal grandparents. The chancellor's opinion was incorporated into the final Decree of Divorce entered on September 9, 1991.

III. ANALYSIS

I. WHETHER THE TRIAL COURT ERRED IN GRANTING CUSTODY OF THE MINOR CHILD TO THE GRANDPARENTS, NON-PARTIES, AND NOT GRANTING CUSTODY OF THE CHILD TO THE APPELLANT.

A. Parties' Contentions

Both parties contend that the chancellor in this case erred in awarding to the grandparents, non-parties to this action, the custody of the minor child, Haley McKee. Both Natalie and Darren submit that one of them is the proper person to have custody of Haley and request that this Court reverse and render a judgment granting custody to that person. Natalie also argues, in the alternative, that this Court should remand the case to the chancery court on the issue of child custody.

B. Applicable Law

The law has long been in Mississippi that the natural parents of a child have the right to nurture and care for their child. Simpson v. Rast, 258 So.2d 233, 236 (Miss.1972). The parent is the child's natural guardian; however, if this person is not fit to carry out the responsibilities of this guardianship, the chancery court may appoint a suitable person to fulfill such duties. Carter v. Taylor, 611 So.2d 874, 876 (Miss.1992). See also Miss.Code Ann. Sec. 93-13-1 (1972).

This Court considers the denying of a parent the custody his or her child a serious matter and does not treat this issue lightly. Ethredge v. Yawn, 605 So.2d 761, 764 (Miss.1992). This Court noted in Ethredge that:

In those cases where the Court places custody with the grandparent, that judgment arises from sequential findings of legal forfeiture by the natural parent(s) and that the best interests of the child suggest such custody. No grandparent has a right to custody.

Ethredge, 605 So.2d at 764. In a custody dispute between the parents of a child and that child's grandparents, there is a presumption that it is in the best interest of that child to remain with the natural parents.

In order to overcome this presumption there must be a clear showing that the parent has (1) abandoned the child, or (2) the conduct of the parent is so immoral [as] to be detrimental to the child, or (3) the parent is unfit mentally or otherwise to have the custody of his or her child.

White v. Thompson, 569 So.2d 1181, 1183-84 (Miss.1990) quoting Rodgers v. Rodgers, 274 So.2d 671, 673 (Miss.1973). See also, Milam v. Milam, 509 So.2d 864, 866 (Miss.1987); Stoker v. Huggins, 471 So.2d 1228, 1229 (Miss.1985). Absent clear proof of one of the above circumstances, the natural parent is entitled to custody of his or her child. Rutland v. Pridgen, 493 So.2d 952, 954 (Miss.1986). More recently, this Court has stated:

Grandparents have no right of custody of a grandchild, as against a natural parent, a premise reflected in our frequent statements, in custody contests between a parent (or parents) and grandparents, the parent(s) prevail absent a showing they have abandoned the child or are otherwise totally unfit.

Ethredge, 605 So.2d at 764. See also, Carter, 611 So.2d at 876; Westbrook v. Oglesbee, 606 So.2d 1142, 1147 (Miss.1992).

In the instant case, the chancellor did not make a specific finding that either parent, Darren or Natalie, was unfit. In his opinion, the chancellor stated:

The Court is further of the opinion concerning the welfare of this three-year-old baby girl, who has since the separation been living with both parties, one week each, and considering this, the Court is of the opinion and so holds, based upon all the testimony that under the Albright versus Albright case, neither party at this time should have the physical custody of this child. The proof shows that almost since the birth of the child that the grandparents have looked after, nurtured, and cared for this baby. The Court is of the opinion that it would be in the best interest of the child at this time that the grandparents, both the maternal and paternal grandparents, should have the physical custody of this child with the parents of the natural mother having the custody for six months, and the parents of the natural father having custody for six months.

The chancellor did not make a finding of unfitness of these parents. Specifically, he did not find that either of these parents had abandoned the child, had participated in conduct so immoral as to be a detriment to the child, or that they were mentally unfit or unfit otherwise to have custody of the child. Aside from applying the Albright ² factors to the testimony in this case, he did not provide a basis for his determination that Haley should be with her grandparents rather than with either of her natural parents. Nor did he substantiate his reasoning as to what factors and evidence he relied upon in making his decision.

The instant case was a divorce case in which the parties, Natalie and Darren, were contesting custody between each other. As such, each tried to prove that he or she was the better parent; the issue of parental unfitness was never raised. While each side presented voluminous testimony as to his or her suitability and fitness to have custody of Haley, neither made a determined effort to prove that the other was so unfit as to terminate his or her parental rights.

C. Conclusion

Because the issue of the unfitness of the parents was not litigated, and because of the chancellor's failure to make a specific determination that these parents are both so totally unfit as to relinquish their right to have custody of their...