Romans v. Fulgham

• Citation: 939 So.2d 849
• Decision Date: 10 October 2006
• Docket Number: No. 2005-CA-00873-COA.,2005-CA-00873-COA.
• Parties: Lisa Godin ROMANS, Appellant v. William Ryan FULGHAM, Appellee.
• Court: Court of Appeals of Mississippi

939 So.2d 849

Lisa Godin ROMANS, Appellant v. William Ryan FULGHAM, Appellee.

No. 2005-CA-00873-COA.

Court of Appeals of Mississippi.

October 10, 2006.

Merrill K. Nordstrom, attorney for appellant.

Carrie A. Jourdan, attorney for appellee.

EN BANC.

BARNES, J., for the Court.

¶ 1. In May of 1997, William Ryan Fulgham was adjudicated the natural father of A.F., a child born out of wedlock to Lisa Godin Romans on November 28, 1996. The paternity judgment, issued by the Chancery Court of Lafayette County, ordered Ryan to pay to Lisa $100 per month in child support, but was silent as to custody. From the time of her birth until the outcome of the custody proceeding at issue in this case, A.F. lived primarily with her mother, though Ryan was allowed reasonable visitation. In September 2004, Ryan filed a petition in the Chancery Court of Lafayette County seeking primary physical custody of A.F. After a bench trial, the chancellor awarded Ryan primary physical custody of A.F., and awarded joint legal custody to both parents. Lisa changed counsel shortly after the chancellor's bench ruling, but before written judgment was entered. Her new counsel then argued the paternity order should be considered an initial custody determination. Notably, at no time during the hearing or closing argument did Lisa's original counsel argue that the Albright factors should not be used. On appeal, Lisa claims that the chancellor erred in treating the dispute as an initial custody determination, rather than as a custody modification proceeding; in the alternative, she claims that the chancellor erred in his application of the Albright factors. Finding that the chancellor appropriately treated the dispute as an initial custody determination, and that the chancellor's ruling was supported by substantial, credible evidence, we affirm the ruling of the chancery court.

ISSUES AND ANALYSIS

I. WHETHER THE CHANCELLOR ERRED IN TREATING THE DISPUTE AS AN INITIAL CUSTODY DETERMINATION.

II. WHETHER THE CHANCELLOR ERRED IN APPLYING THE ALBRIGHT FACTORS.

¶ 2. "In child custody matters, review by this Court is `quite limited in that the Chancellor must be manifestly wrong, clearly erroneous, or apply an erroneous legal standard in order for this Court to reverse.'" In re Custody of M.A.G., 859 So.2d 1001, 1004(¶ 8) (Miss.2003) (quoting M.C.M.J. v. C.E.J., 715 So.2d 774, 776(¶ 10) (Miss.1998)). Where a chancellor has applied the correct legal standard and made findings of fact which are supported by substantial evidence, this Court will not reverse that decision. Id.

¶ 3. In original custody determinations, the "polestar consideration" is the best interest and the welfare of a minor child. See, e.g., Brekeen v. Brekeen, 880 So.2d 280, 283(¶ 5) (Miss.2004); Carr v. Carr, 480 So.2d 1120, 1123 (Miss.1985). Factors to be considered in ascertaining a minor child's best interests include (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) who has the best parenting skills and who 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; and (10) stability of the 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).

¶ 4. While a chancellor must take the Albright factors into consideration in a custody modification proceeding as well, the movant carries a heavier burden in a modification proceeding. In order to prevail in such a dispute, the complaining parent must show "that an application of the Albright factors reveals that there has been a material change in those circumstances which has an adverse effect on the child, and a modification of custody would be in the child's best interest, considering the totality of the circumstances." Jones v. Jones, 878 So.2d 1061, 1065(¶ 11) (Miss. Ct.App.2004). In Law v. Page, 618 So.2d 96 (Miss.1993), the Mississippi Supreme Court stated that the appropriate legal standard to apply in custody actions dealing with an illegitimate child, when there has been no prior custody determination, is that found in divorce proceedings, which is the best interest of the child considering the Albright factors. Id. at 101. Our Court has followed this custody standard in several instances. See 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 (Miss. Ct.App.2001). In S.B. we held that when a father petitioned for paternity and custody at the same time, it was deemed an initial custody determination, because custody of the child had not been previously determined by the judiciary. S.B., 793 So.2d at 658(¶ 7). If custody had been determined previously, the proceedings would have been considered a modification of custody and the well-settled "material change in circumstances" standard would apply. C.W.L., 919 So.2d at 271 (¶ 10) (citing Law, 618 So.2d at 101).

¶ 5. In our case, claiming that an initial custody determination was made as part of the 1997 judgment finding Ryan to be the natural father of A.F., Lisa argues that this matter should have been treated as a custody modification proceeding rather than an initial determination of custody. While Lisa concedes that the paternity judgment did not explicitly award her primary physical custody of A.F., she argues that, by ordering Ryan to pay her $100 per month in child support, the chancery court implicitly awarded her primary physical custody of A.F. We do not find this argument persuasive. As an initial matter, we note that Lisa was not a party to the original paternity action. Rather, the action was initiated by the Mississippi Department of Human Services pursuant to its statutory authority to commence paternity actions. See Miss.Code Ann. § 43-19-31(b) (Rev.2004). The Department of Human Services's enabling act contains no language even authorizing it to initiate custody proceedings. Furthermore, the order not only failed to award Lisa custody; it never mentioned "custody" or referred to a "custodial parent."

¶ 6. While the Mississippi Supreme Court has noted that custody issues are routinely decided in paternity actions, it has also recognized that "a paternity action is not the most convenient or appropriate forum for determining the best interests of the child where custody actions are arranged to effectively and exhaustively address the issue." Griffith v. Pell, 881 So.2d 184, 187-88(¶ 12) (Miss.2004). Nothing in the record suggests that matters of custody were ever considered as part of the paternity proceedings, and Lisa has not provided this court with a transcript of the paternity hearing. Therefore, even were this Court to accept Lisa's theory that the paternity judgment implicitly awarded her primary physical custody of A.F., we see nothing in the record before us indicating that the Albright factors were employed by the court during the paternity proceeding. Looking to these facts, we find that the chancellor properly categorized the custody proceeding as an initial determination, rather than as a modification proceeding.

¶ 7. We decline to find error in the trial court and adopt an argument that was not properly presented below. The contention that the paternity judgment was an initial custody determination was not raised at the chancery court level until after the chancellor had issued his bench opinion. In fact, Lisa's original counsel, during his closing argument, merely urged the chancellor to study the totality of the Albright factors in reaching his decision. In keeping with the holdings of Law v. Page, C.W.L. v. R.A., and S.B. v. L.W., the chancery court denied the motion to reconsider, thereby confirming the chancellor's decision that the issue should be treated as an initial determination, rather than a modification of custody. The dissent would have us distinguish the instant case from these cases on the basis that Ryan, the noncustodial parent, did not file his petition for custody in a timely manner. We find nothing in Law, C.W.L., or S.B. which would allow us to make this distinction; there is no indication that the timing of the custody proceeding was a dispositive factor in these decisions. Moreover, the dissent fails to articulate exactly how much time must pass, after the birth of the child, or an order of support, before a custody petition would be considered untimely. Finally, in neither Lisa's motion to reconsider the bench opinion, nor either party's brief to this Court, is the argument made that Ryan has waived his entitlement to an Albright analysis by virtue of his delay in bringing the custody proceeding. Thus, we find this case is not an appropriate vehicle to alter the law in this area. We maintain the appropriate standard is one of an initial custody proceeding utilizing an Albright analysis in order to determine the best interest of the child.

¶ 8. In reaching his decision to award primary physical custody of A.F. to Ryan, the chancellor made extensive findings on the record with regard to each of the Albright factors. In summary, the chancellor found the following:

(1) Age, health and sex of the child

¶ 9. The chancellor found that this factor weighed evenly for Lisa and Ryan, as A.F. was in good health, and not of tender years.

(2) A determination of the parent that has had the continuity of care of A.F.

¶ 10. The chancellor found this factor to weigh in favor of Lisa, as she had provided primary care for A.F. since her birth.

(3) Who has the best parenting skills and which has the willingness and capacity to provide primary child care

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