Mercier v. Mercier, 96-CA-00564-SCT

• Decision Date: 23 July 1998
• Docket Number: No. 96-CA-00564-SCT,96-CA-00564-SCT
• Citation: 717 So.2d 304
• Parties: Margaret Skinner MERCIER v. Steve MERCIER.
• Court: Mississippi Supreme Court

Page 304

717 So.2d 304

Margaret Skinner MERCIER v. Steve MERCIER.

No. 96-CA-00564-SCT.

Supreme Court of Mississippi.

July 23, 1998.

Conrad Mord, Tylertown, for Appellant.

Leigh Kennington Berry, Foxworth Shepard & Berry, Columbia, for Appellee.

En Banc.

MILLS, Justice, for the Court:

STATEMENT OF THE CASE

¶1 Margaret Skinner Mercier appeals from a decision of the Chancery Court in Marion County awarding full physical custody of her daughter, Dusty Richelle Mercier, to Steve Mercier, the child's father. Aggrieved, Margaret Mercier brings this appeal assigning the following issue as error:

I. WHETHER THE TRIAL COURT ERRED IN APPLYING THE ALBRIGHT FACTORS IN A CUSTODY CASE AND REFUSING TO AWARD PHYSICAL CUSTODY OF A SEVEN-YEAR OLD FEMALE TO HER MOTHER.

STATEMENT OF THE FACTS

¶2 Steve Mercier and Margaret Skinner Mercier were married on March 4,1988. Dusty Richelle Mercier was born on April 13, 1989, and is the only child produced by this marriage. The parties separated on February 1, 1992, and were divorced on July 2, 1992. Joint legal and physical custody of Dusty was vested in Steve and Margaret, with each having primary custody every other week. Steve was ordered to pay $150 per month in child support and to secure and maintain medical insurance and major medical coverage for Dusty.

¶3 Following the divorce, Steve remarried. His new wife, Lisa, has one child, Sarah, who was nine years old at the time of trial. She resides with them full time. Steve has one other child, Brent Mercier, age seven at the time of trial. Brent lives with his mother. Additionally, Steve and Lisa were expecting a child at the time of this litigation.

¶4 Following the divorce, Margaret married Richard Hitt. At the time of the trial, she and Hitt had divorced and she was residing with her parents and her aunt and attending college working on a bachelor's degree in education.

¶5 On August 2, 1995, Steve filed a Petition to Clarify Final Decree of Divorce, alleging that Margaret had enrolled Dusty in a private academy against his advice and wishes. Margaret answered Steve's petition and counterclaimed that a material and substantial change in circumstances had occurred since the Final Decree of Divorce in that Dusty was now six years old and in school. Steve and Margaret both agreed that joint custody was impractical and not in Dusty's best interest.

¶6 Steve filed an amended petition making the same allegations as those asserted by Margaret in her petition. Both parties argued that they were the fit, suitable and proper persons to have full care and custody of Dusty.

¶7 Following a full trial on March 21, 1996, the chancellor found, upon admission of both parties, that there had been a material and substantial change in circumstances since the Final Decree of Divorce which adversely affected Dusty. The chancellor further found, pursuant to Albright v. Albright, 437 So.2d 1003 (Miss.1983), that the best interests of the child would be served by granting Steve physical custody and control

of Dusty, while granting legal custody to both Steve and Margaret, with Margaret having visitation rights. Additionally, the chancellor ordered Margaret to pay $100 per month in child support.

STANDARD OF REVIEW

¶8 When reviewing a chancellor's decision, we will accept a chancellor's findings of fact as long as the evidence in the record reasonably supports those findings. Perkins v. Thompson, 609 So.2d 390, 393 (Miss.1992). In other words, we will not disturb the findings of a chancellor unless those findings are clearly erroneous or an erroneous legal standard was applied. Hill v. Southeastern Floor Covering Co., 596 So.2d 874, 877 (Miss.1992).

DISCUSSION

I. WHETHER THE TRIAL COURT ERRED IN APPLYING THE ALBRIGHT FACTORS IN A CUSTODY CASE AND REFUSING TO AWARD PHYSICAL CUSTODY OF A SEVEN-YEAR OLD FEMALE TO HER MOTHER.

¶9 When a court enters an order awarding custody of a child, that court holds continuing jurisdiction over the subject matter and the parties for the purpose of later modifications of that order. Miss.Code Ann. § 93-5-23 (Supp.1996). Any order for joint custody may be modified upon the showing of a material change of circumstances adverse to the interest of the child. Rutledge v. Rutledge, 487 So.2d 218, 220 (Miss.1986); See also Miss.Code Ann. § 93-5-24(6) (1994). In the case sub judice, the parties admitted that a material change in circumstances adverse to the interest of the child had occurred. It was thus necessary for the court to determine the custody arrangement which would be in the best interest of the child. Newsom v. Newsom, 557 So.2d 511, 515-16 (Miss.1990); Phillips v. Phillips, 555 So.2d 698, 700 (Miss.1989). Margaret asserts the chancellor misapplied that law in the instant case.

¶10 The Albright factors are as follows:

1. Age, health, sex of the child.

2. Continuity of care prior to the separation.

3. Parenting skills and willingness and capacity to provide primary child care.

4. Employment of the parent and responsibilities of that employment.

5. Physical and mental health and age of the parents.

6. Emotional ties of the parent and the child.

7. Moral fitness of the parents.

8. The home, school, and community record of the child.

9. The preference of the child at the age sufficient, by law, to express a preference.

10. Stability of home and employment of each parent.

11. Other factors relevant to the parent-child relationship.

Albright, 437 So.2d at 1005. The polestar consideration in custody matters is the best interest and welfare of the child, and the above stated factors are to be employed in the furtherance of that determination. Id.

¶11 In the instant case, the chancellor found that factors 3, 4, 8, and 10 weighed in Steve's favor. The chancellor found the remaining factors, with the exception of factor 9, which is not applicable here, to weigh equally between the parties.

¶12 Margaret asserts that the chancellor erred when he concluded that factor number one, the age, sex and health of the child, weighed equally between the parties. She cites a litany of cases to support her proposition that if a mother is fit and a child, especially a female child, is of tender years, then the mother should be awarded custody. Buntyn v. Smallwood, 412 So.2d 236, 238 (Miss.1982) (custody of female child of five years of age granted to mother); Kyzar v. Kyzar, 248 Miss. 59, 157 So.2d 770 (1963) (custody of three females and one male, ranging in age from one and one-half years old to nine years old, granted to mother); Brown v. Brown, 237 Miss. 53, 112 So.2d 556 (1959) (custody of four and onehalf year old female granted to mother); Thames v. Thames, 233 Miss. 24, 100 So.2d 868 (1958); Scott v. Scott, 219 Miss. 614, 631, 69 So.2d 489 (1954) (custody of female five year old granted to mother); Kennedy v. Kennedy, 222 Miss. 469, 76 So.2d 375 (1954) (custody of four year old male granted to mother); Boswell v. Pope, 213 Miss. 31, 56 So.2d 1 (1952) (custody of three year and five month old female granted to mother); Miles v. Miles, 111 Miss. 110, 71 So. 295 (1916).

¶13 The tender years doctrine on which Margaret relies was established by this Court in 1879 in Johns v. Johns, 57 Miss. 530 (1879) and is stated as follows:

'In all cases where any child is of such tender age as to require the mother's care for its physical welfare it should be awarded to her custody, at least until it reaches that age and maturity where it can be equally well cared for by other persons.'

Brown v. Brown, 237 Miss. 53, 58, 112 So.2d 556, 559 (1959) (quoting Amis, Divorce and Separation in Mississippi (1935), Sec 219, page 296).

¶14 The tender years doctrine has been gradually weakened in Mississippi jurisprudence to the point of now being only a presumption. Law v. Page, 618 So.2d 96, 101 (Miss.1993). Today, the age of a child is simply one of the factors that we consider in determining the best interests of the child. Albright v. Albright, 437 So.2d 1003, 1005 (Miss.1983). In this case, Dusty was within weeks of her seventh birthday at the time of trial. The cases cited by Margaret in support of the proposition that, as a female in her tender years Dusty should reside with her mother, are all pre-Albright cases when the tender years doctrine was a rule rather than one of several factors to consider in determining custody. Furthermore, in each of these cases, the child was younger than Dusty, or there were several siblings, with at least one of them being younger than Dusty.

¶15 Margaret further alleges that the chancellor summarily dismissed the tender years doctrine without inquiry. We disagree. The chancellor addressed this issue when he noted that Dusty was no longer of tender years since she was nearly seven at the time of hearing. As stated supra, a child is no longer of tender years when that child can be equally cared for by persons other than the mother. We have held that a child of seven is long past the age that requires this type of special care from her mother. Torrence v. Moore, 455 So.2d 778, 780 (Miss.1984)(citing Duncan v. Duncan, 119 Miss. 271, 80 So. 697 (1919)). Not only can other people care for Dusty as well as her mother, but the record reflects that Steve Mercier does care for Dusty as well as or better than her mother. We are satisfied that the chancellor sufficiently addressed the tender years doctrine by finding that it did not apply.

¶16 Not only do we find that the chancellor correctly evaluated the tender years doctrine, but we also find that he properly weighed the remaining Albright factors. The chancellor noted that Steve has a steady job and significant income while Margaret is a student living on a Pell grant, student loans, and part time jobs. In fact, Margaret has admitted that she is forced to rely upon the kindness of her kin to sustain Dusty and herself. While the income is certainly in Steve's favor, the record shows numerous other reasons why the Albright factors are weighted in...