Wilson v. Davis

• Decision Date: 07 January 2016
• Docket Number: 2012–CT–00196–SCT.,Nos. 2013–CT–01244–SCT,s. 2013–CT–01244–SCT
• Citation: 181 So.3d 991
• Parties: James WILSON v. Pearlean DAVIS.
• Court: Mississippi Supreme Court

181 So.3d 991

James WILSON

v.Pearlean DAVIS.

Nos. 2013–CT–01244–SCT

2012–CT–00196–SCT.

Supreme Court of Mississippi.

Jan. 7, 2016.

Felecia Perkins, Jessica Nicole Ayers, Jackson, attorneys for appellant.

John R. Reeves, John Justin King, Jackson, attorneys for appellee.

EN BANC.

ON WRIT OF CERTIORARI

KING, Justice, for the Court:

¶ 1. In this custody action between a child's natural father and her maternal grandmother, the chancery court found that the natural parent presumption was rebutted, and, further, that the best interests of the child were served by remaining in the physical custody of the grandmother, while allowing the father liberal visitation. Because the evidence was insufficient to rebut the natural parent presumption, we reverse and remand the case for further proceedings consistent with this opinion.

FACTS

¶ 2. Sha'Nyla Wilson ("Sha") was born to Concetter Davis and James Wilson on April 20, 2003. Sha has a maternal half-sister, Ka'Nyla ("Ka"), who is two years older than Sha.

This action began as a paternity and custody dispute between Concetter and James Wilson. James was adjudged to be Sha's natural father. Concetter was awarded custody, and James was awarded visitation.

Concetter died in 2011. When Concetter's relatives would not return Sha to James, he filed a petition for modification and sought sole legal and physical custody of Sha. The chancellor entered an order that awarded the primary physical custody of Sha to Pearlean Davis, Sha's maternal grandmother. The chancellor also awarded James liberal visitation.

In the decision, the chancellor did not treat the issue as an initial custody dispute between a natural parent and grandparent. Instead, the chancellor considered the motion as a modification of child custody based on the prior custody determination between Concetter and James.

The judgment was appealed and assigned to [the Court of Appeals]. [The Court of Appeals] reversed the judgment and remanded the case for the chancellor to make a determination of whether the natural-parent presumption had been rebutted. See Wilson v. Davis, 111 So.3d 1280, 1283 (¶ 11) (Miss.Ct.App.2013).

Wilson v. Davis, 181 So.3d 1011, 1012, 2014 WL 6436839, at *1 (Miss.Ct.App.2014). Rather than conduct a new hearing regarding the rebuttal of the natural parent presumption on remand, the chancellor instead simply amended her original order and opinion to find that the natural parent presumption was rebutted.

¶ 3. The chancellor first found that James had abandoned Sha, but the Court of Appeals reversed that decision, determining that such a finding was not supported by substantial evidence. Id. at 1014–15, *3. The chancellor then found James's conduct to be so immoral as to be a detriment to Sha. The chancellor noted that James had been married three times, had a history of dating much younger women, and had a history of dating multiple women at the same time, including committing adultery. She noted that James was seventy-two at the time of the hearing. The chancellor found that James's current, much-younger wife, Annette Wilson, had two sons who had serious anger issues, as evinced by the fact that they were in therapy for said issues multiple times per week. The chancellor expressed concern that James had a "lack of awareness or lack of concerns of the potential danger" to which Sha "could be" exposed. Further, she found that Annette and Sha had no real bond with one another, and that Annette, a homemaker, would be primarily responsible for Sha's care.

Moreover, the chancellor found Annette and Concetter had gotten into a physical altercation in front of Sha. The chancellor further found that, shortly before Concetter died, James had filed papers to have her committed. The court noted that it "is not convinced that it is in his daughter's best interest for Mr. Wilson to have sole custody." It then concluded that James was

asking this Court to remove the minor child from the home she has known for the better part of life and from her 10 year old sibling, Ka, who she resides with. Sha will also be taken away from her cousins and a very close college age aunt if Mr. Wilson obtains physical custody. In light of the emotional stress she has experienced resulting from the untimely death of her mother and considering all factors outlined above, this Court finds that this environment would be clearly detrimental to the minor child and shows an otherwise unfitness by Mr. Wilson to believe this is a good environment for his daughter.

The chancellor then found that the natural parent presumption had been rebutted because the court was "clearly convinced that Mr. Wilson has shown himself to be otherwise unfit." The chancellor then placed Davis, the grandmother, on equal footing with James and applied an Albright¹ analysis. Under that analysis, the chancellor found that the best interests of Sha were served by Davis retaining primary physical custody, Davis and James being granted joint legal custody, and James being granted liberal visitation.

¶ 4. James appealed and Davis failed to file an appellate brief. The Court of Appeals declined to find that Davis's failure to file a brief was tantamount to a confession of error. A divided Court of Appeals affirmed the chancellor's determination that James's conduct was so immoral that he was unfit to have custody, and that the natural parent presumption was thus rebutted. It also found no error in the chancellor's Albright analysis. Judge Roberts dissented in an opinion joined by Judge Irving. Judge Roberts argued that he could not "find that the chancery court's reliance on this evidence [of James's dating and marital relationships] is clear and convincing evidence of immorality and unfitness such that the natural-parent presumption should be overcome." He further argued that the other facts of immorality and unfitness found by the chancellor, such as the anger issues of James's stepsons, were more suited for an Albright analysis, and had little bearing on James's morality or fitness as a parent. Judge Roberts last concluded that he could not "reconcile the chancery court's finding that James was so immoral and unfit to parent Sha that the natural-parent presumption was overcome, while at the same time awarding him joint legal custody and liberal visitation." Judge Roberts believed the case should be reversed and judgment rendered granting James custody, while remanding the matter to consider grandparent visitation.

¶ 5. James filed a motion for rehearing, which the Court of Appeals denied. He then petitioned this court for certiorari review, which we granted. In his petition, he argued that the Court of Appeals' decision regarding Davis's failure to file a brief being tantamount to a confession of error conflicted with prior precedent, and that the Court of Appeals' decision that the evidence of unfitness and immorality against him established by clear and convincing evidence that the natural parent presumption had been rebutted was error. We limit our review to the issue of whether clear and convincing evidence existed to rebut the natural parent presumption. See Guice v. State, 952 So.2d 129, 133 (Miss.2007) (Supreme Court "unquestionably" has the authority to limit the issues on review); see also Yelverton v. Yelverton, 26 So.3d 1053, 1056–57 (Miss.2010) (even if one party fails to file a brief, "in matters of child custody and support ... this Court will ‘make a special effort to review the record for support for affirmance.’ " (quoting Barber v. Barber, 608 So.2d 1338, 1340 (Miss.1992) )).

ANALYSIS

¶ 6. This Court reviews the chancellor's findings for manifest error. Westbrook v. Oglesbee, 606 So.2d 1142, 1146 (Miss.1992).

¶ 7. "The best interest of the child is paramount in any child-custody case." Smith v. Smith, 97 So.3d 43, 46 (Miss.2012). Indeed, "[t]his is a principle of law so deeply embedded in our jurisprudence that it should not require further elaboration or citation of authority." In re Dissolution of Marriage of Leverock and Hamby, 23 So.3d 424, 429 (Miss.2009). This Court has consistently held that it is presumed that the best interests of a child are served by being in the custody of his or her natural parent, as opposed to a third party. Davis v. Vaughn, 126 So.3d 33, 37 (Miss.2013). "[H]uman experience has demonstrated that as a general rule parental love and solicitude for the child's welfare are the best guarantee that it will be properly cared for .... The presumption in all cases is that the child's parents will love it most and care for it better than anyone else and it is in the best interest of the child to leave it in the custody of a parent." Moody v. Moody, 211 So.2d 842 (Miss.1968). This presumption "may be rebutted by clear and convincing evidence that ‘(1) the parent has abandoned the child; (2) the parent has deserted the child; (3) the parent's conduct is so immoral as to be detrimental to the child; or (4) the parent is unfit, mentally or otherwise, to have custody.’ " Davis, 126 So.3d at 37 (quoting Smith, 97 So.3d at 46 ). If the natural parent presumption is rebutted, "the court may then proceed to determine whether an award of custody to the challenging party will serve the child's best interests." Davis, 126 So.3d at 37.

¶ 8. Requiring clear and convincing evidence to rebut the natural parent presumption in one of the four manners listed is important to "honor[ ] and protect[ ] the fundamental right of natural parents to rear their children."Id. However, this Court takes the opportunity to note that the rigid adherence to proving one of the four precise factors to rebut the natural parent presumption may, in very limited and exceptional circumstances, place a child in a circumstance that is clearly not in his or her best interests. And, as is clearly established, the best interests of the child is the lodestar in custody cases. This Court has recognized this principle in the past, stating that "[i]n order to overcome this presumption, there must...