Sanders v. Sanders

• Decision Date: 14 May 2019
• Docket Number: NO. 2017-CA-01467-COA,2017-CA-01467-COA
• Citation: 281 So.3d 1043
• Parties: Marcus Karl SANDERS, Appellant v. Sumie SANDERS, Appellee
• Court: Mississippi Court of Appeals

281 So.3d 1043

Marcus Karl SANDERS, Appellant

v.Sumie SANDERS, Appellee

NO. 2017-CA-01467-COA

Court of Appeals of Mississippi.

May 14, 2019

ATTORNEY FOR APPELLANT: JAMES PAUL TINSLEY

ATTORNEY FOR APPELLEE: CARRIE A. JOURDAN

BEFORE J. WILSON, P.J., GREENLEE AND McCARTY, JJ.

J. WILSON, P.J., FOR THE COURT:

¶1. Marcus and Sumie Sanders consented to an irreconcilable differences divorce and agreed that the chancellor would determine custody of their daughter, Kristen, and related issues. After a trial, the chancellor awarded Sumie physical custody of Kristen and granted Marcus reasonable visitation. Marcus argues that the chancellor's custody decision was based on a flawed Albright analysis. He also argues that the chancellor failed to address his request for declaratory relief related to an alleged risk of international child abduction. Finally, Marcus argues that the chancellor erred by following an unapproved local rule regarding temporary custody hearings. We find no error and affirm.

FACTS AND PROCEDURAL HISTORY

¶2. Marcus Sanders moved from Mississippi to Japan to teach English. In Japan, he began a relationship with Sumie, a Japanese citizen. Marcus and Sumie married in 2011. In addition to teaching, Marcus started a business making YouTube videos. Sumie worked for a pharmaceutical company and also studied law. In 2013, Sumie gave birth to Kristen, the couple's only child. After Kristen's birth, Sumie stayed at home, which led to some financial difficulty for the family. In 2014, they decided to move to Mississippi to be closer to Marcus's family and save money. Sumie also testified that Marcus was unhappy in Japan and wanted to move home to Mississippi.

¶3. After Marcus moved to Mississippi, Sumie and Kristen remained in Japan for three months while Sumie waited to obtain a visa. When Sumie and Kristen finally arrived in Mississippi, they moved with Marcus into his parents' home in Ethel. Marcus had decided to focus on his growing YouTube business, and in Ethel he was able to record and produce his videos in a studio on his parents' property that his father had built. Sumie did not work outside the home, although she did earn some money online by buying and selling American brand name items to people in Japan.

¶4. Marcus primarily worked on his YouTube videos at night, so Sumie was Kristen's primary caregiver. Marcus's parents, Mark and Melinda, also helped with Kristen's care. Marcus usually was asleep during the day due to his unusual work hours, but he did occasionally play with Kristen or help put her to bed at night.

¶5. Sumie did not have a car or a driver's license when they moved in with Marcus's parents; thus, she had to rely on her mother-in-law for transportation. Even after Sumie obtained a driver's license, she had to ask her mother-in-law to borrow a car. Sumie was not happy in Ethel. After living with Marcus's parents for about a year, Marcus, Sumie, and Kristen moved to an apartment in Starkville. Living in Starkville allowed Sumie to take Kristen on outings to local events, the library, book stores, and the swimming pool at their apartment complex. Sumie made some new friends who also had children, and they would often have playdates. Sumie and Marcus shared a car, but she testified that Marcus did not allow her to go any farther than Columbus without his permission.

¶6. In late 2015, Marcus and Sumie had a fight. In the heat of the moment, Sumie said that she might just "disappear." Marcus testified that this remark scared him and that he became fearful that Sumie would abscond with Kristen to Japan. He started keeping Kristen's passport locked away from Sumie.

¶7. In March 2016, Marcus went to Atlanta to visit some friends. While he was out of town, Sumie left the home. She and Kristen went to a domestic abuse shelter, although Sumie does not allege that Marcus ever physically abused her or Kristen. She testified that she left because she was fearful for her safety and her daughter's safety because Marcus had become extremely controlling. Sumie testified that Marcus prevented her from traveling freely and tightly controlled her spending. She said that Marcus always wanted receipts for any money that she spent and would not give her access to the family Amazon account.

¶8. When Sumie moved out, she filed a complaint for divorce and for custody of Kristen. Marcus answered and filed a counterclaim for divorce and custody. On April 22, 2016, an agreed order was entered setting a hearing on temporary matters, including custody. The order provided that temporary matters would be decided based on affidavits submitted by the parties. Both parties submitted multiple affidavits. On May 9, 2016, the chancery court entered a temporary order granting Sumie temporary physical custody of Kristen, granting Marcus temporary visitation of every other weekend plus three weeks during the summer, and granting the parties temporary joint legal custody. In February 2017, the parties withdrew their fault-based claims for divorce and consented to an irreconcilable differences divorce. They agreed that the chancellor would determine Kristen's custody, visitation, and related issues. In March 2017, the case proceeded to trial on the stipulated issues.

¶9. After the separation, Marcus moved back to his parents' home in Ethel, and Sumie and Kristen moved back into the couple's apartment in Starkville. Sumie testified that she had been looking for work in Mississippi, but she was unable to find a job. She testified that she had some interviews scheduled in New York but that if she could not find a job in the United States, she intended to return to Japan. While Marcus had Kristen for three weeks of visitation under the temporary custody order, Sumie went home to Japan to visit her family. While Sumie was in Japan, she obtained certifications that she thought might help her find a job as a fitness, diving, or swimming instructor. She and Kristen had been able to get by on temporary child support and alimony, as well as money that her mother sent from Japan.

¶10. Sumie testified that if she ever did move back to Japan, she would want Marcus to have lengthy visits with Kristen twice a year. She agreed that Marcus and Kristen should have a relationship and that he was not a bad father. But she also believed that Marcus did not always think about his family and how his actions affected them. She pointed to the fact that Marcus worked most nights and slept during the day and rarely ate meals with her and Kristen.

¶11. Marcus testified that he had modified his working hours since the separation in order to be able to take care of Kristen during visitation. He denied any suggestion that he was not around to help care for Kristen. He testified that he would often play with her or watch TV with her when they lived at his parents' home in Ethel. He acknowledged that his working hours were unusual, but he believed that he saw Kristen more often than a parent who worked a "normal" nine-to-five job.

¶12. Marcus asserted that Sumie did not give Kristen enough attention. He thought that Sumie was on her computer too much and that she allowed Kristen to watch age-inappropriate videos. He also said that Sumie did not pay enough attention to Kristen's clothing and shoe needs. He claimed that Kristen's shoes were slightly too large and were causing blisters. He was also concerned about Kristen's education if Sumie moved back to Japan because Kristen's Japanese is not on par with her peers in Japan.

¶13. Marcus denied that he was controlling. He said Sumie had access to his parents' car when they lived in Ethel and could make trips to the grocery store. Marcus acknowledged that Sumie was unhappy in Ethel, but he said that she did not make an effort to socialize with others. He denied telling her that she could not go farther than Columbus but admitted that he did have some trust issues after Sumie said that she might "disappear." He also admitted that he kept Kristen's passport after that incident. Thus, he knew that Sumie had not left the country when she left the marital home in March 2016.

¶14. Juyong Lee, a friend of Sumie's, testified that Sumie was a good mother. She said she had never seen any red flags in Sumie's parenting and that Kristen was a good child. Lee and Sumie met through Sumie's involvement with an outreach program for Japanese culture at Mississippi State University.

¶15. Sumie's therapist, Dr. Diane Prude, testified that Sumie and Kristen had a strong bond and that Kristen was a normal, happy child. Prude testified that Sumie was less stressed and had better self-esteem since her separation from Marcus.

¶16. Megan Houston, who lived at the same apartment complex as Sumie and Marcus, testified about her friendship with Sumie. Both Houston and Sumie are stay-at-home mothers with small children, and their children play together several times each week. Houston testified that Sumie is loving, kind, and attentive to Kristen. From Houston's perspective, Kristen was ahead of her peers in her abilities and development. She saw no issues with Sumie's parenting. Houston said that she had not had much interaction with Marcus, so she could not comment on his parenting skills.

¶17. Marcus's parents both testified. His mother, Melinda, testified that Sumie did not properly supervise Kristen. She said that once Sumie gave Kristen a q-tip, which Kristen could have stuck in her ear. Melinda also found Kristen playing with plastic shopping bags once. Melinda testified that Sumie did not have Kristen on a "set schedule" and that Kristen often did not go to sleep until 11 p.m. Melinda also said that Sumie did not buy clothes and shoes that fit Kristen. She said Kristen often had blisters from wearing shoes that were too small. According to Melinda, Marcus had a lot of interaction with Kristen, but Sumie paid more attention to her computer than her child.

¶18. Marcus's father, Mark, testified similarly. He said Sumie was on her computer too much and...