Williams v. Stockstill
| Citation | 990 So.2d 774 |
| Decision Date | 20 May 2008 |
| Docket Number | No. 2007-CA-00599-COA.,2007-CA-00599-COA. |
| Parties | Amy Nicole WILLIAMS, Appellant, v. Marcus Shane STOCKSTILL, Appellee. |
| Court | Court of Appeals of Mississippi |
William E. Andrews, III, Candance L. Rickman, attorneys for appellant.
Richard C. Fitzpatrick, Poplarville, attorney for appellee.
EN BANC.
LEE, P.J., for the Court.
FACTS AND PROCEDURAL HISTORY
¶ 1. Amy Nicole Williams (Amy) gave birth to Madison Jean Williams on July 3, 2003. Marcus Shane Stockstill (Shane), married to Tonya Stockstill, recognized Madison as his daughter. On May 16, 2005, Shane petitioned the Chancery Court of Pearl River County to establish paternity, to amend Madison's birth certificate to reflect her last name as Stockstill, to establish a visitation schedule, and to set child support for him to pay. Amy filed no responsive pleading to the original petition. After holding a conference on the matter, the chancellor ordered that Shane and Amy have joint legal custody of Madison with Amy having paramount physical custody. A visitation schedule was arranged for Shane. The chancellor also ordered that Madison's birth records be changed to reflect Shane as the father and to change Madison's surname to Stockstill. Shane was ordered to pay child support and provide medical insurance for Madison. The parties and their extended families were ordered to attend counseling with Dr. John Pat Galloway at Shane's expense.
¶ 2. Subsequent to the above order, and upon permission by the chancellor, Shane filed a supplemental and amended petition seeking primary physical custody of Madison with appropriate provisions regarding a visitation schedule for Amy and Amy's payment of child support. Dr. Galloway filed several written reports with the chancery court documenting his findings based on counseling sessions with the family. Based on Dr. Galloway's recommendation, the chancellor referred the parties to Dr. Joseph Tramontana, a clinical psychologist, for further evaluations. Once the court received the evaluations and recommendations of Dr. Tramontana, a full evidentiary hearing was held. The court entered an opinion finding that it was in the best interest of the child to grant joint legal custody to Shane and Amy with primary physical custody vested in Shane.
¶ 3. Amy now appeals, arguing that the chancellor should have applied the material change in circumstances test rather than an analysis under the Albright factors. Amy contends that at the time of trial, de facto custody had been vested in her for three years. In the alternative, Amy argues that the decision of the chancellor was manifestly wrong based on the best interest of the child.
¶ 4. Finding no error, we affirm.
STANDARD OF REVIEW
¶ 5. This Court will not disturb the findings of a chancellor unless we find an abuse of discretion, an erroneous application of law, or manifest error. Andrews v. Williams, 723 So.2d 1175, 1177(¶ 7) (Miss. Ct.App.1998). Thus, if we find substantial evidence in the record to support the chancellor's findings, we will not reverse. Wilbourne v. Wilbourne, 748 So.2d 184, 186(¶ 3) (Miss.Ct.App.1999).
DISCUSSION
¶ 6. Amy argues that the chancellor should have first determined whether there had been a material change in circumstances which adversely affected the child's best interest before reaching an Albright analysis. Amy asserts that Shane "waived his right to an Albright analysis because of his two year delay in bringing the custody proceeding." She argues that it was not until she was arrested that Shane decided to seek custody. At the time of the hearing, Amy was under house arrest for commercial burglary and drug charges. She argues that allowing fathers of children born to unwed parents an unlimited amount of time to seek custody creates an unfair advantage for fathers.
¶ 7. We find Amy's argument that the chancellor should have first determined if there was a material adverse change in circumstances to be without merit. The "material changes" standard used in modification proceedings is dependent on there being a prior determination of custody. Law v. Page, 618 So.2d 96, 101 (Miss.1993). Since no prior custody determination was made in this case, the proper standard of law to be applied is that found in divorce proceedings, which is the best interest of the minor child. Id.; Albright v. Albright, 437 So.2d 1003, 1004 (Miss.1983).
¶ 8. The dissents agree with Amy that since Shane did not seek custody of Madison for almost two years, Shane must now prove a material change in circumstances to modify custody. However, there is no law to support a different burden of proof for fathers of children born out of wedlock who delay in seeking custody. The law is that unless a prior custody determination has been made, custody is determined by the Albright factors. Law, 618 So.2d at 101; Romans v. Fulgham, 939 So.2d 849, 852(¶ 4) (Miss.Ct.App.2006); 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, 658(¶ 7) (Miss.Ct.App.2001).
¶ 9. Amy next argues that since Shane "shirked" his parenting duties for almost two years, the law should require him to prove by a preponderance of the evidence that he had acknowledged this child as his own for the first two years of her life and earned the right to be on equal footing with Amy regarding custody. This argument is also without merit. In Smith v. Watson, 425 So.2d 1030, 1033 (Miss.1983), the supreme court stated that in custody dealings involving a child born out of wedlock, when a father acknowledges the child as his own, the father is deemed on equal footing with the mother as to parental and custodial rights to that child.
¶ 10. We find that the chancellor applied the correct law as this was an initial custody determination rather than a custody modification. This issue is without merit.
¶ 11. Amy argues, in the alternative, that if the chancellor used the proper standard in determining custody, the chancellor's decision was manifestly wrong based on the best interest of the child.
¶ 12. It is well settled that in child custody cases, the polestar consideration is the best interest of the child. Albright, 437 So.2d at 1005. The factors used to determine what is in the "best interest" of a child with regard to custody are: (1) the age, health, and sex of the child; (2) determination of the parent who had the continuity of care prior to the separation; (3) which parent has the best parenting skills and which has the willingness and capacity to provide primary child care; (4) the employment of the parents and responsibilities of that employment; (5) physical and mental health and age of the parents; (6) emotional ties of the 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 the home environment and employment of each parent; and (11) other factors relevant to the parent-child relationship. Id.
¶ 13. The chancellor found the stability of the home environment and employment of the parents factor to weigh heavily in Shane's favor. Amy asserts that in analyzing this factor, the chancellor failed to acknowledge Shane's failures and shortcomings and placed unwarranted emphasis on the fact that he was married and more financially stable. Shane owned his own business and had a stable family life. Although both parents had made mistakes in the past, the chancellor found that Shane had made positive steps in improving his future while Amy's future remained uncertain because of her "erratic and criminal behavior." We find that the chancellor had substantial evidence to support a finding in favor of Shane on this factor.
¶ 14. Amy next argues that the chancellor erred in finding Shane to have stronger emotional ties to Madison. To support her argument, Amy points to the fact that she raised Madison, and Shane had to get comfortable with Madison before he even considered requesting custody. She asserts that although she had been sentenced on criminal charges to three years of house arrest and five years of probation, she was living with her parents where there was adequate room for her and her two daughters. Amy contends that she had held a job selling merchandise on Ebay, and her criminal charges had not affected her children. She argues that it is in Madison's best interest to remain in the home she had known since birth and continue to gradually build a relationship with Shane and his family. Amy also asserts that Madison had developed close emotional ties to Amy's five-year-old daughter from a previous relationship who lived with Amy. As for the emotional ties of the parent and child, the chancellor found that Madison had a strong attachment to each parent. The chancellor noted that Madison's strong attachment with Shane was particularly remarkable since she had spent substantially less time in his presence. We cannot find that the chancellor erred in weighing this factor in favor of Shane.
¶ 15. Finally, Amy argues that Shane should not have been awarded custody since his wife was resentful and vindictive because of his affair with Amy. The chancellor discussed this under the parenting skills and willingness to provide primary care factor. The chancellor stated that although upset over the affair, Shane's wife "supports his assertion of genuine and deep-seated desire" to have custody of Madison. Also, Shane's wife testified that she was willing and able to provide full-time care for Madison.
¶ 16. As to the moral fitness of the parents, Judge Griffis's dissent would find that, at best, neither parent should be favored. The dissent focuses on Shane's moral past. Specifically, the dissent emphasizes Shane's affair with Amy while Shane was still married...
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