Parra v. Parra

• Citation: 65 So.3d 872
• Decision Date: 21 June 2011
• Docket Number: No. 2010–CA–00339–COA.,2010–CA–00339–COA.
• Parties: Bridget Marie PARRA, Appellantv.Paul William PARRA, Appellee.
• Court: Court of Appeals of Mississippi

65 So.3d 872

Bridget Marie PARRA, Appellant
v.
Paul William PARRA, Appellee.

No. 2010–CA–00339–COA.

Court of Appeals of Mississippi.

June 21, 2011.

[65 So.3d 873]

Wren Carroll Way, Vicksburg, attorney for appellant.Travis T. Vance Jr., attorney for appellee.Before IRVING, P.J., BARNES and MAXWELL, JJ.

[65 So.3d 874]

BARNES, J., for the Court:

¶ 1. Paul William Parra and Bridget Marie Parra were divorced in 2009, and the Warren County Chancery Court awarded Paul the “permanent care, custody and control” of the couple's three minor children. Bridget filed a motion for a rehearing, contending that she should have been awarded custody since Paul had not informed the chancellor that he was planning to move their children to California. The chancery court denied Bridget's motion, and she now appeals. Finding that the chancery court failed to submit any specific findings of fact under Albright v. Albright, 437 So.2d 1003 (Miss.1983), in awarding custody to Paul, we reverse and remand for further proceedings in accordance with this opinion.

SUMMARY OF FACTS AND PROCEDURAL HISTORY

¶ 2. Bridget and Paul were married on October 4, 1999. The couple had three children born of the marriage. Two of the children were born in California, but the youngest child was born after the couple moved to Vicksburg, Mississippi, a few years ago. In 2008, Bridget began having an affair with Tommy Breland Jr. When Paul learned of Bridget's adultery, the Parras separated in December 2008. The couple's minor children remained with Paul during the separation, while Bridget went to live with Tommy in Sicily Island, Louisiana. Although Bridget initially had regular visits with the children, the children alleged that Tommy was physically abusive; so subsequently, Paul only allowed visitation with Bridget at her mother's home in Yazoo City, Mississippi.

¶ 3. On January 5, 2009, Paul filed a complaint for divorce on the grounds of habitual cruel and inhuman treatment, adultery, and irreconcilable differences. He also requested physical custody of the children. A hearing on temporary custody was held on January 15, 2009, and Paul was awarded custody, with Bridget having visitation rights. It was also noted in the temporary order that the children were not to have contact with two men, who were Bridget's cousins and neighbors of Paul, as the chancellor determined that their presence would not be “conducive to the best interest[s] and welfare of such minor children[.]” This was based upon testimony, which alleged that both men may have been previously accused or charged as pedophiles. However, all fault grounds were later withdrawn, and the parties entered into a consent to divorce, which awarded Paul the marital domicile, a 16 x 80 mobile home located in Vicksburg.

¶ 4. A hearing was held on October 15, 2009, to determine the marital distribution of assets, child custody and visitation, and child support. The chancery court granted the Parras a divorce and awarded Paul permanent custody of the couple's minor children. Bridget was granted reasonable and liberal rights of visitation. Bridget filed a motion for rehearing on October 27, 2009, stating that she should have been awarded custody because Paul failed to reveal to the court that he was planning to move the children to California. On November 2, 2009, Paul replied to Bridget's motion for rehearing, denying Bridget's claims that he was moving. Yet, nine days later, on November 11, 2009, Paul and the children moved to California, where Paul's mother lives.

¶ 5. A hearing on Bridget's motion was held on January 20, 2010, and Bridget testified that since Paul had left with the children, she had been unable to exercise her visitation rights. Bridget also informed the chancellor that she had recently bought a five-bedroom home in Vicksburg and that Tommy was living with her.

[65 So.3d 875]

Paul failed to appear at the hearing. The chancery court denied Bridget's motion, and Bridget timely appeals. Finding that the chancery court failed to provide specific findings for its award of child custody to Paul, we reverse and remand for further proceedings in accordance with this opinion.STANDARD OF REVIEW

¶ 6. This Court will only reverse a chancellor's ruling in a child-custody case if the decision is “manifestly wrong, clearly erroneous, or appl[ies] an erroneous legal standard.” Minter v. Minter, 29 So.3d 840, 846 (¶ 25) (Miss.Ct.App.2009) (citing Johnson v. Gray, 859 So.2d 1006, 1012 (¶ 31) (Miss.2003)). If the chancellor's findings of fact are supported by “substantial, credible evidence,” then they will not be disturbed on appeal. Id.

I. Whether the chancery court committed error by failing to make findings of fact under Albright regarding the award of custody.

¶ 7. Bridget argues that, in awarding custody of the children to Paul, the chancery court failed to address the factors set forth in Albright and failed to submit any reasons why the custodial arrangement would be in the best interests of the children. In Albright, the Mississippi Supreme Court outlined several factors for the court to consider when awarding custody, recognizing that “the polestar consideration is the best interest and welfare of the child.” Phillips v. Phillips, 45 So.3d 684, 693 (¶ 25) (Miss.Ct.App.2010) (citing Albright, 437 So.2d at 1005). These factors are:

(1) the age, health, and sex of the child; (2) a determination of the parent who had the continuity of care prior to the separation; (3) which parent has the best parenting skills and which has the willingness and capacity to provide primary childcare; (4) the employment of the parent and the responsibilities of that employment; (5) the physical and mental health and age of the parents; (6) the emotional ties of parent and 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 to express a preference by law; (10) the stability of the home environment; and (11) other factors relevant to the parent-child relationship.

Id. Bridget claims that the chancellor's failure to address these factors and make any findings of fact warrants reversal of the judgment.

¶ 8. Paul contends that since Bridget failed to make a motion or request for such findings under Uniform Chancery Court Rule 4.01 and Mississippi Rule of Civil Procedure 52(a), she waived her right to appeal this issue. Rule 4.01 advises:

In all actions where it is required or requested, pursuant to M.R.C.P. 52, the Chancellor shall find the facts specially and state separately his conclusions of law thereon. The request must be made either in writing, filed among the papers in the action, or dictated to the Court Reporter for record and called to the attention of the Chancellor.

UCCR 4.01 (emphasis added). Rule 52(a) states that: “In all actions tried upon the facts without a jury the court may, and shall upon the request of any party to the...