Solangi v. Croney

• Decision Date: 23 July 2013
• Docket Number: No. 2010–CA–01943–COA.,2010–CA–01943–COA.
• Citation: 118 So.3d 173
• Parties: Tashfeen A. SOLANGI, Appellant v. Kacey CRONEY, Appellee.
• Court: Mississippi Court of Appeals

118 So.3d 173

Tashfeen A. SOLANGI, Appellant

v.Kacey CRONEY, Appellee.

No. 2010–CA–01943–COA.

Court of Appeals of Mississippi.

March 12, 2013.

Rehearing Denied July 23, 2013.

Renee M. Porter, attorney for appellant.

Nancy E. Steen, Hattiesburg, attorney for appellee.

Before GRIFFIS, P.J., MAXWELL and FAIR, JJ.

FAIR, J., for the Court:

¶ 1. Tashfeen (Tash) Solangi brought suit against Kacey Croney to establish paternity and secure custody of Caleb Aaron Croney, a child born out of wedlock. After a trial, the chancellor awarded custody and attorney's fees to Kacey. Tash contests these decisions on appeal. We reverse and render the award of attorney's fees, but we find that the chancellor otherwise acted within his discretion.

FACTS

¶ 2. Tash and Kacey worked together at the Stennis Space Center and became involved in an intimate relationship. Kacey gave birth to Caleb on October 22, 2004. She has another child, Kaitlin, who is about seven years older than Caleb. Tash recognized Caleb as his child, and although Tash had some difficulty coming forward as an unwed father, he quickly became very involved in Caleb's life. Tash and Kacey entered into an informal agreement for support and visitation, which Tash exercised extensively. Child care for Caleb was largely provided by Tricia Stockstill, Kacey's mother. As Caleb approached school age, Tash filed this suit to seek custody.

¶ 3. After a lengthy trial, the chancellor found that it was in Caleb's best interest to remain in Kacey's physical custody, with legal custody to be shared by both parents. Tash was ordered to pay Kacey's attorney's fees, and Caleb's name was changed from “Caleb Aaron Croney” to “Caleb Aaron Croney Solangi.” Child support was ordered, but it has not been contested on appeal.

STANDARD OF REVIEW

¶ 4. Questions of law are reviewed de novo. Irving v. Irving, 67 So.3d 776, 778 (¶ 11) (Miss.2011). A chancellor's factual findings, on the other hand, will not be disturbed unless he was manifestly wrong or clearly erroneous, or applied an erroneous legal standard. Carambat v. Carambat, 72 So.3d 505, 510–11 (¶ 24) (Miss.2011). As long as substantial evidence supports the chancellor's findings, an appellate court is without authority to disturb them, even if it would have found otherwise as an original matter. Joel v. Joel, 43 So.3d 424, 429 (¶ 14) (Miss.2010). Additionally, if the chancellor has made no specific findings, we generally proceed on the assumption that he resolved fact issues in favor of the appellee. Ferrara v. Walters, 919 So.2d 876, 881 (¶ 8) (Miss.2005).

DISCUSSION

1. Custody of Caleb; Albright Factors

¶ 5. Tash devotes the majority of his brief to the argument that the chancellor should have awarded custody of Caleb to him.

¶ 6. In Albright v. Albright, 437 So.2d 1003, 1005 (Miss.1983), the Mississippi Supreme Court held that the best interest of the child must control in all custody decisions, and this principle has been adopted by the Legislature in Mississippi Code Annotated section 93–5–24 (Rev.2004). In determining the best interest of the child in custody disputes, it is the court's duty to consider that the relationship of parent and child is for the benefit of the child, not the parent. See Reno v. Reno, 253 Miss. 465, 475, 176 So.2d 58, 62 (1965) (citing J.W. Bunkley, Jr. & W.E. Morse, Bunkley and Morse's Amis on Divorce and Separation in Mississippi § 8.01 (2d ed.1957)).

¶ 7. To determine where the child's best interest lies, chancellors must consider the following factors when evaluating the fitness of each parent: (1) age, health, and sex of the children; (2) continuity of care; (3) parenting skills and the willingness and capacity to provide primary child care; (4) employment responsibilities of the parents; (5) physical and mental health and age of the parents; (6) moral fitness of the parents; (7) emotional ties of the parents and children; (8) home, school, and community records of the children; (9) preference of children twelve years of age or older; (10) stability of the home environment and employment of each parent; and (11) other relevant factors in the parent-child relationship. Albright, 437 So.2d at 1005.

¶ 8. The chancellor is required to address each of the Albright factors that is applicable to the case before him. See Powell v. Ayars, 792 So.2d 240, 244 (¶ 10) (Miss.2001). However, the chancellor need not decide that every factor favors one parent over the other. See Weeks v. Weeks, 989 So.2d 408, 411 (¶ 12) (Miss.Ct.App.2008). Nor is Albright a mathematical formula where custody must be awarded to the parent who “wins” the most factors. Lee v. Lee, 798 So.2d 1284, 1288 (¶ 15) (Miss.2001). Instead, the Albright factors exist to ensure the chancellor considers all the relevant facts relating to the child's best interest. “All the factors are important, but the chancellor has the ultimate discretion to weigh the evidence the way he sees fit.” Johnson v. Gray, 859 So.2d 1006, 1013–14 (¶ 36) (Miss.2003).

¶ 9. The chancellor issued a written opinion containing a discussion of each Albright factor, as well as an overall analysis regarding Caleb's best interest. From this, it is apparent that the chancellor held both Tash and Kacey in high regard and found little fault in either's willingness or ability to care for Caleb. The chancellor found the decisive factor to be Kacey's continuity of care. On appeal, Tash challenges the chancellor's findings on most of the individual Albright factors, contending that the chancellor failed to consider or properly weigh various facts that support his claim for custody. Although the chancellor discussed each factor separately, we have combined those with a common factual nexus for our analysis on appeal.

A. Age, health, and sex of the child

¶ 10. At the time of trial, Caleb was five years of age. His health was generally good, but there was some testimony that he was overweight and suffered from frequent sinus and ear infections. Tash attributed Caleb's health issues to second-hand smoke he experienced while in the care of Tricia Stockstill, Kacey's mother. However, the causal link was never established during the trial except by lay attribution. There was also testimony that Stockstill did not smoke inside and that she had carefully avoided smoking when she was in an enclosed area with Caleb. Stockstill testified that she washed her hands after smoking and used air purifiers in her home. Additionally, Tash acknowledged that he smoked, though he averred that he did not do it in Caleb's presence. In conclusion, there was simply no competent evidence that Caleb's health would be better served in Tash's custody.

¶ 11. Tash also contends the chancellor ignored Caleb's sex. However, it is obvious from the record that this is not the case. The chancellor acknowledged Caleb's gender in his opinion and explained from the bench that he did not find it decisive because of Caleb's young age. “What weight to assign to [the child's sex] is entrusted to the chancellor's sound discretion; a chancellor may find that it does or does not weigh in favor of the parent of the same sex ... depending on the specific facts of the case.” Jackson v. Jackson, 82 So.3d 644, 646 (¶ 8) (Miss.Ct.App.2011). It is clear the chancellor gave due consideration to Caleb's sex, and we cannot say that his decision as to how to weigh that fact is manifestly in error.

B. Continuity of care

¶ 12. The chancellor found that this factor favored Kacey. The proof at trial showed that Kacey had cared for Caleb for most of his early life, while Tash had gradually taken a more active role. It was undisputed that immediately before the trial Tash had Caleb for twelve days each month, but the history and extent of Tash's pretrial custody was disputed. The chancellor was entitled to favor the characterization offered by Kacey, which was that Tash exercised extensive visitation rather than custody. It was undisputed that Tash often did “fun” things with Caleb during his time, but Kacey testified she had always been responsible for the business end of child rearing—doctor and dentist's visits, prescriptions, haircuts, and so forth. Even Tash acknowledges that Caleb spent more time with Kacey. We cannot say that the chancellor erred in his findings under this factor.

C. Parenting skills; moral fitness

¶ 13. The chancellor found that both parents had excellent parenting skills. On appeal, Tash contends that the lack of “independent” testimony regarding Kacey's parenting ability required the chancellor to find this factor in his favor. We disagree: “Where there is conflicting testimony, the chancellor, as the trier of fact, is the judge of the credibility of the witnesses and the weight of their testimony, as well as the interpretation of evidence where it is capable of more than one reasonable interpretation.” Bowen v. Bowen, 982 So.2d 385, 395 (¶ 42) (Miss.2008) (quotations omitted).

¶ 14. On the issue of moral fitness, the chancellor found some fault with both parties. Both had exposed Caleb to unmarried sexual partners. The best that Tash can say is that he never spent the night with a girlfriend while Caleb was present-other than Kacey, that is. However, there was no evidence Caleb was even aware of Kacey's indiscretions, much less that they had negatively impacted him. Tash contended he was setting a better example for Caleb by concealing his own immoral behavior and bad habits, but the chancellor was concerned that Tash's hypocrisy would eventually catch up with him.

¶ 15. Tash also points to several incidents that the chancellor found nearly irrelevant—on two occasions Kacey took her daughter along to the New Orleans area to pick up her boyfriend when he was too drunk to drive. Kacey also drove for several months while her driver's license was suspended for failing to pay a speeding ticket from Louisiana. We agree with the chancellor that these facts have little bearing on Kacey's moral fitness or parenting...