Rickey Len Conerly v. Nan B. Davis
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2009-CA-00534-COA
RICKEY LEN CONERLY AND LINDA R.
CONERLY
APPELLANTS
v.
NAN B. DAVIS
APPELLEE
DATE OF JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEY FOR APPELLANTS:
ATTORNEY FOR APPELLEE:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
03/06/2009
HON. DEBBRA K. HALFORD
AMITE COUNTY CHANCERY COURT
WAYNE SMITH
RONALD L. WHITTINGTON
DOMESTIC RELATIONS
GRANTED GRANDPARENT’S VISITATION
RIGHTS TO PATERNAL GRANDMOTHER
AND AWARDED HER $3,887.50 IN
ATTORNEY’S FEES
VACATED AND REMANDED - 11/02/2010
BEFORE LEE, P.J., BARNES AND ROBERTS, JJ.
LEE, P.J., FOR THE COURT:
FACTS AND PROCEDURAL HISTORY
¶1.
Nan B. Davis is the paternal grandmother to Mason Conerly. Mason is the son of
Charles Davis and Sherry Lynn Conerly. Sherry’s parents, Rickey Len Conerly and Linda
R. Conerly, adopted Mason in April 1999. Charles’s and Sherry’s parental rights were
terminated at that time. Although Sherry’s parental rights were terminated, Mason spends
approximately four to five nights a week at her house.
¶2.
In 2006, Davis filed suit in the Amite County Chancery Court seeking grandparent’s
visitation rights. An agreed temporary order was entered on August 14, 2007, wherein the
parties agreed to participate in family counseling conducted by Dr. Pat Brawley. On March
5, 2009, a trial was held on the matter, after which the chancellor granted Davis’s request for
grandparent’s visitation. The chancellor granted Davis at least three visitation periods of five
hours minimum per visit during the first sixty days. After the initial sixty days, the parties
could petition the court for further review.
¶3.
The Conerlys appeal the chancellor’s ruling, raising two issues: (1) the chancellor
erred in failing to determine whether a viable relationship existed between Davis and Mason,
and (2) the chancellor erred in failing to specifically address the factors enumerated in Martin
v. Coop, 693 So. 2d 912 (Miss. 1997). Finding that the chancellor failed to address the
Martin factors, we vacate the chancellor’s judgment and remand for further proceedings
consistent with this opinion.
STANDARD OF REVIEW
¶4.
Absent an abuse of discretion, this Court will not reverse the decision of the
chancellor. Martin, 693 So. 2d at 914. “This Court will not disturb the factual findings of
the chancellor unless said factual findings are manifestly wrong or clearly erroneous.” Id.
(citing McAdory v. McAdory, 608 So. 2d 695, 699 (Miss. 1992)).
DISCUSSION
I. VIABLE RELATIONSHIP
¶5.
In their first issue on appeal, the Conerlys argue that the chancellor erred in not
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determining whether a viable relationship existed between Davis and Mason as required by
Mississippi Code Annotated section 93-16-3(2) and (3) (Supp. 2009). According to section
93-16-3(1), if a parent of a minor child has his or her parental rights terminated, either parent
of the minor child’s parents may petition the court for visitation. Miss. Code Ann. § 93-163(1) (Supp. 2009). However, a chancellor need only address section 93-16-3(2) and (3) if
93-16-3(1) does not apply. In this case, Davis’s situation is addressed by 93-16-3(1) because
her son’s parental rights were terminated. The chancellor was not required to determine
whether Davis and Mason had a viable relationship. This issue is without merit.
II. MARTIN FACTORS
¶6.
In their second issue on appeal, the Conerlys argue that the chancellor failed to
specifically address the factors enumerated in Martin. In Martin, the Mississippi Supreme
Court listed ten factors that should be considered in determining grandparent visitation. The
factors are as follows:
1. The amount of disruption that extensive visitation will have on the child’s
life. This includes disruption of school activities, summer activities, as well
as any disruption that might take place between the natural parent and the child
as a result of the child being away from home for extensive lengths of time.
2. The suitability of the grandparents’ home with respect to the amount of
supervision received by the child.
3. The age of the child.
4. The age, and physical and mental health of the grandparents.
5. The emotional ties between the grandparents and the grandchild.
6. The moral fitness of the grandparents.
7. The distance of the grandparents’ home from the child’s home.
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8. Any undermining of the parent’s general discipline of the child.
9. Employment of the grandparents and the responsibilities associated with that
employment.
10. The willingness of the grandparents to accept that the rearing of the child
is the responsibility of the parent, and that the parent’s manner of child rearing
is not to be interfered with by the grandparents.
Martin, 693 So. 2d at 916.
The Martin court acknowledged that this list was not
all-inclusive, stating that the chancellor should weigh “all circumstances and factors he [or
she] feels to be appropriate.” Id. As always, the best interest of the child is the paramount
consideration when determining visitation. Morgan v. West, 812 So. 2d 987, 992 (¶13)
(Miss. 2002).
¶7.
The supreme court has held that “making findings of fact under the Martin factors is
an integral part of a determination of what is in the best interest[s] of a child.” T.T.W. v.
C.C., 839 So. 2d 501, 505 (¶12) (Miss. 2003). In Townes v. Manyfield, 883 So. 2d 93, 97
(¶29) (Miss. 2004), the supreme court further stated that “the Martin factors are to be applied
and discussed in every case in which grandparent visitation is an issue.” In Townes, the
supreme court remanded the case back to the chancellor for an on-the-record consideration
of the Martin factors. Id. at 97-98 (¶30); see also Morgan, 812 So. 2d at 992 (¶14)
(chancellor was reversed when she failed to articulate her findings regarding the Martin
factors). In this case, the chancellor did not mention the Martin factors or make any on-therecord finding supporting the visitation award. From language appearing in the record, it
seems the chancellor believed Davis was statutorily entitled to be awarded visitation with
Mason. However, the grandparent-visitation statutes simply give a grandparent such as
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Davis standing to file a request seeking visitation rights. It is then within the chancellor’s
discretion to award or deny visitation after reviewing the Martin factors and considering the
best interest of the child. Therefore, we vacate the chancellor’s judgment and remand this
case for an on-the-record consideration of the Martin factors and the entry of an appropriate
judgment based on those factors.
¶8.
THE JUDGMENT OF THE AMITE COUNTY CHANCERY COURT IS
VACATED, AND THIS CASE IS REMANDED FOR FURTHER PROCEEDINGS
CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE
ASSESSED TO THE APPELLEE.
KING, C.J., MYERS, P.J., GRIFFIS, BARNES, ISHEE, ROBERTS, CARLTON
AND MAXWELL, JJ., CONCUR. IRVING, J., DISSENTS WITHOUT SEPARATE
WRITTEN OPINION.
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