Powell v. Ayars, 1999-CA-01717-SCT.

• Citation: 792 So.2d 240
• Decision Date: 16 August 2001
• Docket Number: No. 1999-CA-01717-SCT.,1999-CA-01717-SCT.
• Court: United States State Supreme Court of Mississippi
• Parties: Mitzi Anne POWELL v. Christopher M. AYARS, Individually and Next Friend for Chayce Ashley Ayars, A Minor.

792 So.2d 240

Mitzi Anne POWELL v. Christopher M. AYARS, Individually and Next Friend for Chayce Ashley Ayars, A Minor.

No. 1999-CA-01717-SCT.

Supreme Court of Mississippi.

August 16, 2001.

S. Christopher Farris, Hattiesburg, Attorney for Appellant.

Leonard Brown Melvin, III, Attorney for Appellee.

EN BANC.

PITTMAN, C.J., for the Court:

¶ 1. Mitzi Anne Powell appeals the judgment of the Jones County Chancery Court awarding custody of her daughter, Chayce Ashley Ayars, to the child's father, Christopher M. Ayars.

FACTS

¶ 2. Christopher Ayars and Mitzi Powell began dating while both were employed at the Junior Food Mart in Hattiesburg, Mississippi. Ayars maintains that prior to Chayce Ashley Ayars's birth, he and Powell agreed that he would have primary custody of Chayce. At trial, Powell admitted telling others that such a "custody agreement" existed; however, she claimed she only made the agreement because of threats made by Ayars. Following her birth, Chayce lived with Powell for approximately one month. Ayars contends that after one month had passed, as per the alleged "custody agreement," he brought Chayce home with him to live on a permanent basis. Ten days later, Ayars allowed Chayce to visit Powell at her home in Seminary, Mississippi. When he returned to pick her up, Powell refused to allow him to take Chayce home with him. Ayars continued to visit Chayce, often at Powell's trailer, until, he maintains, Powell refused to let him see his daughter. Ayars paid Powell child support in the amount of $150 per month, though no court order existed which required him to do so.

¶ 3. On April 6, 1999, Ayars filed a Complaint for an Order of Filiation, Custody and Child Support in the Jones County Chancery Court. Ayars sought custody of his daughter, along with child support and one-half of her medical and dental expenses. Alternatively, Ayars requested liberal visitation rights. On May 13, 1999, the chancellor entered a temporary order awarding custody of Chayce to Powell and granting Ayars visitation rights. The chancellor further ordered Ayars to continue paying $150 per month in child support and to provide health insurance for his daughter. On June 9, 1999, Ayars filed a motion for citation for contempt and for temporary custody, alleging that Powell refused to allow him any contact with his daughter. The chancellor issued a temporary order reaffirming the prior order and amending Ayars's visitation rights.

¶ 4. Following a trial, the chancellor awarded Ayars custody of Chayce. He further ordered Powell to pay child support in the amount of $150 per month and one-half of Chayce's medical expenses. Finally, the chancellor awarded Powell visitation rights.

¶ 5. In this case, the chancellor stated that he examined the case under Albright but he did not make an on-the-record determination of each applicable factor. As a reviewing Court, we require more than merely a chancellor's statement that he took into account all of the Albright factors. Because specific findings are vital to this Court's ability to evaluate a chancellor's child custody decision, we reverse and remand for findings consistent with this opinion.

DISCUSSION

¶ 6. The standard of review in child custody cases is limited. Reversal occurs only if a chancellor is manifestly in error or applied an erroneous legal standard. Williams v. Williams, 656 So.2d 325, 330 (Miss.1995). It is for the chancellor to determine the credibility and weight of evidence. Chamblee v. Chamblee, 637 So.2d 850, 860 (Miss.1994).

I. WHETHER THE CHANCELLOR ERRED IN FAILING TO PROPERLY APPLY THE ALBRIGHT FACTORS WHEN HE AWARDED CUSTODY OF A NINE MONTH OLD FEMALE CHILD

¶ 7. In child custody cases, the best interest of the child must be kept paramount. Sellers v. Sellers, 638 So.2d 481, 485 (Miss.1994). The court considers the following factors in determining the child's best interests: (1) age, health and sex of the child; (2) a determination of the parent that has had the continuity of care prior to the separation; (3) which has the best parenting skills and which has the willingness and capacity to provide primary child care; (4) the employment of the parent and responsibilities of that employment; (5) physical and mental health and age of the parents; (6) 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) stability of home environment and employment of each parent and other factors relevant to the parent-child relationship. Albright v. Albright, 437 So.2d 1003, 1005 (Miss.1983).

¶ 8. In awarding custody to Ayars, the chancellor focused on specific testimony which undoubtedly reflected poorly on Powell. The testimony related to two of the Albright factors, parenting skills and stability of the home environment. The opinion does not discuss specifically the remaining factors, including Chayce's age and sex, continuity of care, and the parties' employment. In light of this Court's precedent regarding the entering of specific findings of fact, we hold this failure to be reversible error.

¶ 9. In Hayes v. Rounds, 658 So.2d 863 (Miss.1995), we clearly stated that "although the court explicitly acknowledged that the Albright factors apply to the present case, it is not clear whether the court properly applied the factors." Id. at 865. In Hayes this Court further stated, "[w]hile we cannot say that the chancellor's conclusion is so lacking in evidentiary support as to be manifest error, in the absence of specific findings we cannot affirm with confidence that the best result has been reached." Id. at 866. We therefore reversed and remanded. Similarly, in Louk v. Louk, 761 So.2d 878 (Miss.2000), and Gray v. Gray, 745 So.2d 234, 240 (Miss.1999), we reversed and remanded for lack of specificity in utilizing the Ferguson factors. Furthermore, in an earlier case, Tricon Metals & Servs., Inc. v. Topp, 516 So.2d 236 (Miss.1987), we held that "in cases of any complexity, tried upon facts without jury, court generally should find facts specially and state its conclusions of law thereon .... and failure to make such findings of ultimate fact and conclusions of law will generally be regarded as abuse of discretion" Id. at 238-39.

¶ 10. Most recently, this Court decided Owen v. Owen, No.1999-CA-01077-SCT, 2001 WL 204040, ___ So.2d ___ (Miss. Mar. 1, 2001), where we noted that this Court has reversed decisions where, even though the chancellor may have actually applied the Ferguson factors, the chancellor failed to make specific findings on the record. See Kilpatrick v. Kilpatrick, 732 So.2d 876, 880-81 (Miss.1999)

. In Owen, reversal was essential as there were clearly more Ferguson factors applicable than the one addressed by the chancellor. Although the instant case involves the Albright factors, the paramount concern is no different. Our job as a reviewing Court is only to evaluate whether the chancellor's decision was manifestly erroneous based on a proper analysis of each of the applicable Albright factors. This task becomes futile when chancellors fail to consider and discuss each factor when rendering decisions.

¶ 11. Because we refuse to attempt to correspond the Albright factors to the evidence found within the record, we remand so the chancellor may make findings on each applicable Albright factor. We will, however, review the two factors considered by the chancellor.

A. Parenting Skills and Willingness and Capacity to Provide Primary Care

¶ 12. The specific incidents relied upon by the chancellor in awarding custody to Ayars are most closely related to Powell's parenting skills. Lilly Jimenez, a former co-worker of Powell's, stated that she had seen Powell's children at work and "they looked dirty, and they smelled sour...." Other witnesses testified accordingly. Russell Moore, the manager of the Junior Food Mart convenience store where both Powell and Ayars are employed, explained that he saw Powell's children about four or five times and that on each occasion, they were not just dirty but were "ground in dirt." Jessica Utley, who was married to the father of Powell's other children, reluctantly admitted that when the children return from Powell's, they are often dirty. Ayars's sister, who saw Chayce only once, stated that she had "a lot of dirt colored matter behind her ears and between her ... we took off one of her shoes, and she had some between her toes, and her fingernails were pretty dirty." Finally, Ayars's girlfriend, Jennifer Cooley, claimed that when Powell delivered Chayce to Ayars's apartment for weekend visits, "the child's fingernails were very long, and she had lots of dirt under her fingernails. Her toenails would be very long. There was lots of dirt and grime between her toenails ..."

¶ 13. Jimenez further testified that on one occasion, Powell's mother, who babysits Chayce and Powell's two older children while Powell is at work, left Chayce in the car while she entered the bank. Additionally, Moore noted that on one occasion, Powell brought her children with her to work. When he informed her that they could not remain inside the store, she took them outside, presumably, he stated, to leave them in the car while she worked her ten-hour shift. Jessica Utley noted that Powell "cusses the children and cusses in front of them." She qualified her remarks, noting that she had not been around Powell for approximately two years. However, Ayars also stated Powell curses around her children. Finally, Ayars noted that on each of his visits to Powell's trailer, there were six people residing in it, including Powell's uncle, mother, and brother.

¶ 14. There is testimony that Powell is not as neglectful as Ayars alleges. James Utley, the father of Powell's older children, testified that Powell was a good parent. His wife testified accordingly. She claimed Powell's older daughter...