Randy T. Story v. Cindy F. Allen
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2007-CA-00312-COA
RANDY T. STORY
APPELLANT
v.
CINDY F. ALLEN
DATE OF JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEY FOR APPELLANT:
ATTORNEY FOR APPELLEE:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
APPELLEE
01/30/2007
HON. KENNETH M. BURNS
OKTIBBEHA COUNTY CHANCERY
COURT
MARK G. WILLIAMSON
ALLEN AUSTIN VOLLOR
CIVIL - CUSTODY
FOUND DEFENDANT TO BE IN
CONTEMPT AND DENIED PLAINTIFF’S
PETITION TO MODIFY CUSTODY
REVERSED AND REMANDED: 12/09/2008
BEFORE LEE, P.J., CHANDLER AND GRIFFIS, JJ.
GRIFFIS, J., FOR THE COURT:
¶1.
Randy T. Story filed a petition to modify custody and to hold Cindy F. Allen in
contempt because she repeatedly interfered with his court-ordered visitation with his
daughter, Francesca Haze Allen. The chancellor granted Randy’s petition for contempt, but
he denied Randy’s petition to modify custody. On appeal, Randy argues that the chancellor
committed manifest error in finding that it was in Francesca’s best interest to remain in
Cindy’s custody. We reverse and remand for sufficient findings consistent with this opinion.
FACTS
¶2.
In an order dated January 12, 2000, both Randy and Cindy agreed that Randy is
Francesca’s father.
The order provided that Cindy was to have physical custody of
Francesca, and Randy was to have standard visitation.
¶3.
Since the date that the order was entered, Cindy has repeatedly interfered with
Randy’s visitation. On March 23, 2000, the chancery court found Cindy to be in contempt
of the agreed order because she and Francesca moved, and Cindy told Randy that she and
Francesca were moving to an address that Randy later determined was false. The chancellor
ordered Cindy to pay Randy’s attorney’s fees and expenses. Again, in December 2001,
Cindy was held in contempt for not adding Randy’s name to Francesca’s birth certificate.
¶4.
In 2002, Cindy filed a complaint with the Hinds County Youth Court accusing Randy
of sexually abusing Francesca. The Hinds County Youth Court case was closed in October
2003, and no government agency brought criminal proceedings against Randy for sexual
abuse. From the institution of the youth court proceedings until 2004, Randy had only
supervised contact with Francesca during his visitation.
¶5.
In the summer of 2006, Cindy again interfered with Randy’s visitation. She told
Randy that Francesca needed to attend summer school because her grades were bad. The
school’s records revealed that Francesca had adequate grades, and she was scheduled to
proceed to the next grade.
¶6.
Cindy also interfered with Randy’s telephonic visitation. During the trial, Randy
stated that Cindy would not answer the phone when he called Francesca during the hours
authorized by the court. Randy produced his phone records, which support this contention.
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¶7.
On December 9, 2005, Randy informed Cindy that he wanted to exercise his
Christmas visitation and that he would pick up Francesca in Casper, Wyoming where Cindy
and Francesca lived. After Randy traveled to Wyoming, he learned that Francesca was at
Cindy’s brother’s house in Mississippi.
Randy testified that he had planned to take
Francesca to his parent’s house. Instead, Randy spent that Christmas alone.
¶8.
After the conclusion of the trial, the chancellor found Cindy to be in contempt. The
chancellor ordered that “(A) [Cindy] shall strictly comply with all orders of this Court
including this Order and shall foster a good father/daughter relationship with [Randy] and
Francesca.
(B) [Randy] is awarded a judgment against [Cindy] for $31,285.24 for
attorney[’s] fees and expenses.”
¶9.
Also, in the order, the chancellor determined that there had been a material change in
circumstances that adversely affected Francesca. The chancellor then conducted an Albright
analysis. The chancellor ended his Albright analysis by stating, “[d]espite [Cindy’s] conduct,
the Court, with serious reservation, believes that Francesca’s best interest is served by
[Cindy] having . . . physical custody. The Court assures [Randy] that her further interference
with [Randy’s] relationship with his daughter will have serious consequences.” (Emphasis
added). It is from this order that Randy now appeals.
STANDARD OF REVIEW
¶10.
“In domestic relations cases, [the appellate court’s] scope of review is limited by the
substantial evidence/manifest error rule.” Samples v. Davis, 904 So. 2d 1061, 1063-64 (¶9)
(Miss. 2004) (citing Jundoosing v. Jundoosing, 826 So. 2d 85, 88 (¶10) (Miss. 2002)). "[We]
will not disturb the chancellor's opinion when supported by substantial evidence unless the
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chancellor abused his discretion, was manifestly wrong, clearly erroneous, or an erroneous
legal standard was applied." Id at 1064 (¶9) (quoting Holloman v. Holloman, 691 So. 2d
897, 898 (Miss. 1996)).
ANALYSIS
¶11.
In Mabus v. Mabus, 847 So. 2d 815, 818 (¶8) (Miss. 2003) (citations omitted), the
supreme court stated the legal standard for a child custody modification proceeding is as
follows:
[The] burden of proof is on the movant to show by a preponderance of the
evidence that a material change in circumstances has occurred in the custodial
home.
In the ordinary modification proceeding, the non-custodial party must prove:
(1) that a substantial change in circumstances has transpired since issuance of
the custody decree; (2) that this change adversely affects the child's welfare;
and (3) that the child's best interests mandate a change of custody.
¶12.
The chancellor determined that Cindy’s intentional interference with Francesca’s
relationship with Randy constituted a material change in circumstances which adversely
affected Francesca. The chancellor, however, determined that it was in Francesca’s best
interest for Cindy to retain physical custody.
Randy argues that this determination
constitutes manifest error.
¶13.
The supreme court has enumerated several factors to help chancellors determine what
is in the “best interest” of the child in a custody dispute. Albright v. Albright, 437 So. 2d
1003, 1005 (Miss. 1983). These factors include:
[age,] health, and sex of the child; a determination of the parent that has had
the continuity of care prior to the separation; which has the best parenting
skills and which has the willingness and capacity to provide primary child
care; the employment of the parent and responsibilities of that employment;
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physical and mental health and age of the parents; emotional ties of parent and
child; moral fitness of parents; the home, school and community record of the
child; the preference of the child at the age sufficient to express a preference
by law; stability of home environment and employment of each parent, and
other factors relevant to the parent-child relationship.
Id. at 1005. The Albright factors are not to be treated as "the equivalent of a mathematical
formula." Lee v. Lee, 798 So. 2d 1284, 1288 (¶15) (Miss. 2001).
¶14.
During his Albright analysis, the chancellor concluded that the following factors
favored Cindy: the continuity of care; the emotional ties of parent and child; and the home,
school, and community record of the child. The chancellor then concluded that the following
factors favored Randy: the stability and responsibilities of employment, moral fitness of the
parent, and the stability of the home environment. The chancellor found all other factors to
be neutral and allowed Cindy to retain custody.
¶15.
While addressing a case similar to this one, our supreme court stated that:
a non-custodial parent's right to visitation is a "right more precious than any
property right." One parent . . . cannot be permitted to unilaterally deny the
other's right to visit with his child. At the same time, "a change in custody will
not be made for the purpose of rewarding one parent or punishing the other."
Ash v. Ash, 622 So. 2d 1264, 1266 (Miss. 1993) (internal citations omitted). In Ash, the
supreme court affirmed a chancellor’s determination to modify custody from the mother to
the father because the mother continuously interfered with the father’s visitation. Id. at 1267.
¶16.
In Jernigan v. Jernigan, 830 So. 2d 651, 654 (¶6) (Miss. Ct. App. 2002), this Court
affirmed a chancellor’s modification of child custody from the mother to the father because
the mother had repeatedly interfered with the father’s relationship with his child. The Court
found that the mother had “moved several times . . . promoted the idea that [the father] had
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sexually abused the child when no medical evidence existed to support such allegation, . . .
and [the mother] failed to cooperate with the visitation order of the court.” Id. at 653 (¶5).
¶17.
In Mord v. Peters, 571 So. 2d 981, 983 (Miss. 1990), the Mississippi Supreme Court,
when discussing the importance of visitation, stated, “[s]o important is the child's right and
a non-custodial parent's right to develop this relationship, some courts have permitted a
change of custody where it is determined that the custodial parent has interfered with a
non-custodial parent's visitation rights.”
¶18.
Cindy argues that cases, such as Jernigan and Ash, are distinguishable. Cindy claims
that in Jernigan and Ash the appellate courts affirmed the chancellor’s determination. Thus,
Cindy argues that this Court must affirm the chancellor’s determination because of the
standard of review.
¶19.
Indeed, this Court may only disturb a chancellor’s determination regarding a
modification of custody if the chancellor is manifestly wrong, clearly erroneous, or applied
an erroneous legal standard. Jernigan, 830 So. 2d at 652 (¶2). This principle, however, does
not mean that this Court may never disturb a chancellor’s decision regarding modification
of custody. The supreme court has emphasized that “where the chancellor improperly
considers and applies the Albright factors, an appellate court is obliged to find the chancellor
in error." Hollon v. Hollon, 784 So. 2d 943, 946 (¶11) (Miss. 2001) (citing Jerome v. Stroud,
689 So. 2d 755, 757 (Miss. 1997)).
¶20.
After reviewing the record, the Court finds that the chancellor committed manifest
error during the Albright analysis. This conclusion is based upon the inconsistencies in the
chancellor’s order regarding the Albright factors of continuity of care and emotional ties of
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the parent and child.
¶21.
In his order, the chancellor stated the following regarding the continuity of care factor:
“Francesca has been with her mother most of her life. Her separation from her father is due
to [Cindy’s] conduct. However, this factor favors [Cindy].” It is neither logical nor proper
to favor one of the parents, under an Albright factor, because of that parent’s malfeasance.
The chancellor admitted in his order that the continuity of care factor favored Cindy because
Cindy repeatedly interfered with Randy’s relationship with Francesca. Equity dictates that
the chancellor should have at least found this factor to be neutral. Therefore, we find that the
chancellor committed manifest error with regard to the analysis of the continuity of care.
¶22.
The chancellor also stated the following regarding the emotional ties of the parent and
child. “Francesca is close emotionally to her parents and the parents to her. [Cindy] has
failed Francesca by not cultivating Francesca’s relationship with her father. This factor
slightly favors [Cindy].” Again, we find that the chancellor’s order is not logical or proper
to reward Cindy’s interference with Randy’s relationship with Francesca. Again, equity
dictates that the chancellor should have at least found this factor to be neutral. Therefore, we
find that the chancellor committed manifest error with regard to the analysis of the emotional
ties of the parent and child.
¶23.
Several of the chancellor’s factual findings, which are supported by the record, appear
to be facially inconsistent with the chancellor’s weighing of the Albright factors. In the
absence of some cogent explanation for that facial inconsistency, it must be considered
manifest error. In the absence of that cogent explanation, this manifest error appears to have
led to the inequitable result of rewarding Cindy for her persistent interference with
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Francesca’s right to have a meaningful relationship with her father. Therefore, this Court is
obligated to reverse the chancellor’s denial of Randy’s petition to modify custody and to
remand this case to the chancellor to undertake either a new analysis of the Albright factors,
which should include a cogent explanation of any facial inconsistency between the facts and
the weight accorded to any individual factor, or a new evidentiary hearing to reconsider the
Albright factors.
¶24. THE JUDGMENT OF THE CHANCERY COURT OF OKTIBBEHA COUNTY
IS REVERSED AND REMANDED FOR FURTHER PROCEEDINGS CONSISTENT
WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE
APPELLEE.
KING, C.J., LEE AND MYERS, P.JJ., IRVING, CHANDLER, BARNES,
ISHEE, ROBERTS AND CARLTON, JJ., CONCUR.
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