Reed v. Fair

• Decision Date: 14 December 2010
• Docket Number: No. 2009–CA–01390–COA.,2009–CA–01390–COA.
• Citation: 56 So.3d 577
• Parties: Theresa N. REED and Irene Daniels, Appellantsv.Marvin F. FAIR, Appellee.
• Court: Mississippi Court of Appeals

56 So.3d 577

Theresa N. REED and Irene Daniels, Appellants

v.Marvin F. FAIR, Appellee.

No. 2009–CA–01390–COA.

Court of Appeals of Mississippi.

Dec. 14, 2010.

Felecia Perkins, attorney for appellants.Renee H. Berry, attorney for appellee.Before LEE, P.J., ISHEE and MAXWELL, JJ.MAXWELL, J., for the Court:

¶ 1. This child-custody dispute requires that we determine whether the chancellor applied the correct legal standard. M.T.F.¹ lived with his great-grandmother, Irene Daniels, for twelve years before his father, Marvin Fair, sought custody. The chancellor applied the Albright factors and found awarding custody to Fair was in M.T.F.'s best interest. M.T.F.'s mother, Theresa Reed, argues that because she had “de facto” custody, the chancellor should have applied a modification standard and only awarded custody to Fair upon finding a material change in circumstances adverse to M.T.F.

¶ 2. This court has held that where no prior custody determination has been made, the initial custody standard applies. Because (1) the chancellor appropriately applied the initial custody standard, and (2) the custody award is supported by substantial evidence, we affirm.

FACTS AND PROCEDURAL BACKGROUND

¶ 3. Fair and Reed had M.T.F. in 1997. Fair and Reed never married, and M.T.F. has spent virtually his entire life living with Daniels, who is Reed's grandmother and M.T.F.'s great-grandmother. Fair has paid child support for M.T.F. since 1999.

¶ 4. In June 2009, Michael McIntosh, Jr. (Daniels's grandson) allegedly molested M.T.F. and two of his male cousins.² McIntosh and the three boys lived in Daniels's home, where the sexual abuse supposedly occurred. When Fair discovered the molestation allegations, he filed a complaint in the Copiah County Chancery Court seeking legal and physical custody of M.T.F. At the time of the hearing, McIntosh had been indicted for the sexual misconduct but not convicted.

¶ 5. The chancellor held a hearing to determine whether Reed or Fair should be awarded custody.³ He treated the case as an initial custody determination because there was no previous custody order. The chancellor applied the Albright factors and determined that it was in M.T.F.'s best interest for Fair to have legal and physical custody.

¶ 6. Reed now appeals, claiming: (1) the chancellor incorrectly applied an initial-custody-determination standard rather than a modification standard, and (2) the chancellor improperly applied the Albright factors.

STANDARD OF REVIEW

¶ 7. “Chancellors are afforded wide latitude in fashioning equitable remedies in domestic relations matters, and their decisions will not be reversed if the findings of fact are supported by substantial credible evidence in the record.” Henderson v. Henderson, 757 So.2d 285, 289 (¶ 19) (Miss.2000). We will not disturb a chancellor's factual findings unless the chancellor's decision was manifestly wrong or clearly erroneous, or the chancellor applied an improper legal standard. Wallace v. Wallace, 12 So.3d 572, 575 (¶ 12) (Miss.Ct.App.2009). We do not substitute our “judgment for that of the chancellor, even if [we disagree] with the findings of fact and would arrive at a different conclusion.” Coggin v. Coggin, 837 So.2d 772, 774 (¶ 3) (Miss.Ct.App.2003). But when reviewing a chancellor's interpretation and application of the law, our standard of review is de novo. Tucker v. Prisock, 791 So.2d 190, 192 (¶ 10) (Miss.2001).

I. Chancellor's Refusal to Apply a Modification Standard

¶ 8. Reed primarily argues the chancellor applied the wrong legal standard in awarding custody of M.T.F. As Reed acknowledges, this court has directly answered the specific question before us on previous occasions. She urges us to overrule these cases.

¶ 9. Generally, in an initial custody proceeding, the parties are “deemed on equal footing,” and custody is awarded based on the best interest of the child under the Albright factors.⁴ See Brown v. Crum, 30 So.3d 1254, 1258 (¶¶ 11, 13) (Miss.Ct.App.2010) (quoting Law v. Page, 618 So.2d 96, 101 (Miss.1993)). But there are situations where certain legal presumptions prevent the parties from having an equal claim to custody. For example, the father of a child born out of wedlock would not stand on equal footing with the mother where the father does not acknowledge the child as his own. Hemphill–Weathers v. Farrish, 779 So.2d 167, 172 (¶ 13) (Miss.Ct.App.2001) (Absent other factors, all jurisdictions recognize the mother of a child born out of wedlock, if a suitable person, possesses the primary right to the child's custody.) (citing Smith v. Watson, 425 So.2d 1030, 1033 (Miss.1983)). Here, because Fair has acknowledged M.T.F., he asserts a claim to custody equal to Reed. See Smith, 425 So.2d at 1033 (citing N. Hand, Jr., Mississippi Divorce, Alimony and Child Custody 271 (1981)) (“upon acknowledging the child as his own, the father has an equal claim ... to the parental and custodial rights of the child”).

¶ 10. While chancellors must also consider the Albright factors in modification proceedings, “the movant carries a heavier burden[.]” Romans v. Fulgham, 939 So.2d 849, 852 (¶ 4) (Miss.Ct.App.2006). In a modification action, the party seeking custody must prove that since the original custody award, there has been a material change in circumstances adverse to the child, and a modification in custody would be in the child's best interest. Tucker v. Tucker, 453 So.2d 1294, 1297 (Miss.1984).

¶ 11. In Law, our supreme court held: “The ‘material changes' standard used in modification proceedings is dependent on there being a prior determination of custody.” 618 So.2d at 101. Relying on Law, this court has consistently held that where no previous custody determination has been made, the relevant standard is the child's best interest under the Albright factors—not a “material change” modification standard. See Brown, 30 So.3d at 1258 (¶ 11); Williams v. Stockstill, 990 So.2d 774, 776 (¶ 7) (Miss.Ct.App.2008); Romans, 939 So.2d at 853 (¶ 7); C.W.L. v. R.A., 919 So.2d 267, 271 (¶ 10) (Miss.Ct.App.2005); S.B. v. L.W., 793 So.2d 656, 659 (¶¶ 13–14) (Miss.Ct.App.2001). We have also rejected the theory that a modification standard applies by virtue of one parent's receipt of child-support payments. Brown, 30 So.3d at 1257–58 (¶¶ 10, 12–13); Romans, 939 So.2d at 852 (¶ 5).

¶ 12. Reed urges us to find a different legal standard applies because Fair waited longer to seek custody than the petitioners in our past decisions. But to distinguish this case based solely on the length of the delay would require that we establish a benchmark for determining when a “de facto” custody relationship exists, which to date we have refused to do. In Romans—which involved a delay of more than seven years—this court noted its reservations about distinguishing Law based on the timeliness of a parent's request for custody because: (1) the resulting legal standard would likely be nebulous, and (2) no case law, including our supreme court's precedent, supports hinging the applicable legal standard solely on the timeliness of the request for custody. See Romans, 939 So.2d at 853 (¶ 7).

¶ 13. Because we find this reasoning equally applicable today, we decline to create a rule that would make the applicable legal standard for awarding custody solely dependent on whether the length of the delay was, in our estimation, too long or too short. Instead, we follow the supreme court's instruction in Law that where no previous custody determination has been made, the applicable standard is the child's best interest under the Albright factors. Even if we were to accept the premise that a modification standard might apply in certain circumstances involving custody of children born out of wedlock, we believe this to be an inappropriate case to confront this issue because neither parent, but rather a third party, Daniels, had primary care of M.T.F. We further emphasize that our holding today in no way prevents chancellors from considering the length of a parent's delay in asserting a claim for custody in determining the best interest of the child. See Brown, 30 So.3d at 1259 (¶ 16) (“Although delay in asserting custody may be a factor to be considered in determining the best interest of the child, it is not the controlling factor.”).

¶ 14. One of the concurrences deems Reed the de facto custodian of M.T.F. even though M.T.F. has been primarily under his great-grandmother's (Daniels's) care the vast majority of his life. We disagree with this conclusion.

¶ 15. It is uncontradicted that M.T.F. lived primarily in Daniels's home from the time he was born until approximately two months before the custody hearing. Daniels testified M.T.F. has spent most of his life in her home, and Reed often visited, albeit sporadically. But according to M.T.F.'s aunt, whose son had often stayed in Daniels's home, M.T.F. was present every time she visited the home, yet Reed never was. Daniels claimed she had not charged either parent “one nickel” to clothe, feed, and provide shelter for M.T.F. Though Daniels “encouraged” Reed to spend her child-support money on M.T.F., Daniels indicated that she bore the cost for providing M.T.F.'s basic needs. Given these circumstances, the chancellor did not regard Reed's contribution to M.T.F.'s care as significant, and certainly did not find Reed to be M.T.F.'s de facto custodian.

¶ 16. We find this sort of fact-based disagreement highlights the difficulty in defining “de-facto custody,” which would be created were we to alter course today.

¶ 17. Based on the facts before us, we find the chancellor applied the correct legal standard.

II. Chancellor's Albright Analysis

¶ 18. In child-custody cases, the “polestar consideration” is always “the best interest and welfare of the child.” Albright v. Albright, 437 So.2d 1003, 1005 (Miss.1983). The Albright factors are a guide for chancellors in weighing the facts to determine the child's best interest. An Albright analysis...