Steven W. Collins v. Melannie Blaylock Collins
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2007-CA-00717-COA
STEVEN W. COLLINS
APPELLANT
v.
MELANNIE BLAYLOCK COLLINS
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
03/01/2007
HON. MITCHELL M. LUNDY, JR.
DESOTO COUNTY CHANCERY COURT
MALENDA HARRIS MEACHAM
JAMES P. VANCE
CIVIL - CUSTODY
DIVORCE DECREE ENTERED AND JOINT
CUSTODY OF MINOR CHILD AWARDED
AFFIRMED - 12/09/2008
BEFORE KING, C.J., IRVING AND CHANDLER, JJ.
CHANDLER, J., FOR THE COURT:
¶1.
Following a trial on the issue of custody of the minor child, Jake,1 the Chancery Court
of DeSoto County entered a decree which granted a divorce on the ground of irreconcilable
differences to Jake's parents, Steven (Steve) and Melannie Collins. The chancellor also
approved the proposed property division between the parties. Regarding the custody of Jake,
the chancellor applied the Albright factors to the facts and awarded joint physical and legal
1
Because there was an allegation of child abuse, this Court has used a fictitious name
in place of the child's real name for the purpose of protecting his identity.
custody to both parents, with Jake to reside with Melannie during the school year and to
reside with Steve during the summer. Aggrieved by the chancellor’s decision, Steve appeals.
He raises the following assignments of error:
I.
II.
The chancellor's custody award did not satisfy the requirements for
joint physical custody.
III.
¶2.
The chancellor did not properly apply the Albright factors in awarding
joint physical and legal custody.
The chancellor did not properly consider the testimony of the guardian
ad litem.
Finding no error, we affirm.
FACTS
¶3.
Steve and Melannie married on August 21, 1998. Their child, Jake, had already been
born on September 19, 1997, and Melannie also had an older special-needs daughter that she
brought into the marriage. At the time of the hearing in this case, Jake was nine years old,
and Melannie's daughter was thirteen. After Jake’s birth, the couple moved to Grenada,
Mississippi; they moved to Hernando, Mississippi in 2003. Throughout the marriage, Steve
and Melannie worked a number of jobs. Steve worked as a fireman, an ambulance driver,
and a paramedic. Melannie worked as a registered nurse, and later she became a paramedic.
At the time of the hearing, she worked as a flight nurse in Memphis.
¶4.
Throughout the marriage, Steve and Melannie worked long shifts, sometimes twelve
or twenty-four hours at a time. They managed to schedule their shifts so that one of them
was usually at home to care for the children while the other was working. Each of the parties
admitted that they jointly cared for the children until the separation.
2
¶5.
Melannie admitted to having an affair that began in December 2004 and lasted
through January 2005. When Steve learned of the affair, he and Melannie argued, but they
decided to try to work through the situation. Despite their attempted reconciliation, Melannie
decided to move out of the marital home on March 1, 2005. With Jake, her daughter, and
most of the household furnishings, Melannie moved to Pope, Mississippi. About a week
later, Melannie returned the children to the marital home; she testified that she did this in
order to work extra hours to pay off marital debt. Melannie left the children with Steve for
a few weeks; however, she later returned and carried her daughter to Pope to live with her.
Melannie left Jake in Hernando under Steve's care.
¶6.
On March 14, 2005, Steve filed a complaint in the Chancery Court of DeSoto County
requesting a divorce on the grounds of adultery and habitual cruel and inhuman treatment or,
in the alternative, irreconcilable differences. He also sought an order granting him temporary
custody of Jake. Melannie answered with a counterclaim for divorce on the ground of
habitual cruel and inhuman treatment or irreconcilable differences. Jake continued to live
with Steve in Hernando and attend school in Hernando. Melannie brought Jake to her home
in Pope several nights per month.
¶7.
On August 17, 2006, the chancellor appointed a guardian ad litem based upon
Melannie's submission of pictures of bruises on Jake; Melannie asserted the bruises came
from a spanking administered by Steve in April 2006. On the same day, the chancellor
entered a temporary agreed order granting the parties joint legal and physical custody of Jake,
allowing them alternating time with Jake of three and four days per week. Steve and
Melannie eventually stipulated to an irreconcilable differences divorce and agreed to a
3
division of the marital property. They submitted the following issues to the chancellor for
determination: custody of Jake, visitation, child support, and college expenses.
The
chancellor held a trial on these issues on January 10, 2007.
¶8.
At trial, Steve called six witnesses including: (1) himself; (2) his mother, Zula L.
Pafford; (3) Melannie; (4) Jake's baseball and soccer coach, John Wesley Pickle; (5) one of
Steve's childhood friends, Wilton Davis; and (6) a friend who often took care of Jake while
Steve was at work, William Allen Magee.
¶9.
Steve testified that he had spanked Jake twice, including in April 2006, but he denied
that he ever spanked Jake hard enough to have caused any bruises. He testified that he
allowed Jake to play with other children at his apartment complex, but he made sure Jake
checked in with him every thirty minutes.
¶10.
Magee recounted that on the ten days per month that Steve worked a twenty-four-hour
shift, Jake stayed with Magee, his wife, and their five children. Magee also coached Jake in
baseball. He testified that from his observations Steve was a good father.
¶11.
Pafford testified that she took care of Jake a few times each month. She lived in
Grenada, but she drove to Hernando to stay with Jake when Steve was working. She
believed that Steve was doing a good job rearing Jake. However, she admitted that she had
not observed Melannie's parenting skills. On cross-examination, Melannie's attorney brought
out that Steve’s mother was eighty-one years old and had to drive for one hour to take care
of Jake.
¶12.
Pickle was Jake's baseball and soccer coach from about 2004 until 2006. According
to Pickle, Steve was normally the person who brought Jake to all of the practices and games.
4
Pickle remembered that Melannie and Pafford brought Jake to some of the games. From his
experience with Jake, Pickle believed that he was a great kid who was very respectful. Pickle
said that he never saw Steve lose his temper with Jake.
¶13.
Steve’s childhood friend, Davis, was the last to testify on Steve's behalf. He testified
that he had known Steve since the second grade, and he had recently gone hunting with Steve
and Jake. Davis told the chancellor that Steve was a good parent who controlled his temper
well.
¶14.
Melannie testified on her own behalf and also called her mother, Susan Vance, and
a former coworker, Stephanie Thompson. Melannie testified that Steve had anger issues and
inconsistently disciplined Jake. She testified that the day after Steve spanked Jake, she
visited Jake at his school. She testified that both she and the principal observed bruises on
Jake, which prompted the principal to call the Mississippi Department of Human Services
(DHS).2 Melannie photographed the bruises later that day. She also testified that she did not
make Jake responsible for the care of his developmentally-challenged half-sister, but Jake
is one of the few people who can communicate with his half-sister, and he looks out for her.
She testified that she has a friend whom she pays to take care of her daughter while she is at
work.
¶15.
Melannie's mother, Vance, testified that she sometimes cared for the children before
the parties separated. Vance said she was familiar with Melannie's parenting skills and found
her to be a good mother. Vance also told the chancellor about the close relationship between
2
No evidence surrounding the involvement of DHS appears in the record; there is no
record of DHS opening a case. Melannie testified that she did not "think anything came up
with DHS."
5
Jake and his half-sister and about Melannie's living arrangements in Pope. Vance testified
that Melannie lives in a house on the campus of the Pope School, which teaches kindergarten
through the eighth grade. Vance testified that she is the principal of the Pope School, and
the school has an excellent educational reputation. Vance further testified that after school,
Jake plays on the campus with his cousins, who live five minutes away with Jake's aunt and
uncle.
¶16.
Thompson testified that she became friends with Melannie when they began working
together in 2003. She said she had observed Melannie taking care of her children, and she
believed that Melannie was a good parent. She was also aware of some instances when Steve
had been derogatory to Melannie in front of the children. Like Vance, Thompson thought
that Jake and his half-sister adored each other and had a close relationship.
¶17.
At the close of the trial, the guardian ad litem stated that she did not find sufficient
evidence of any child abuse. Upon questioning by Steve's attorney, she noted that she had
some concerns relating to both parents. Regarding Steve, the guardian ad litem testified that
Melannie had expressed a concern about Jake running around the apartment complex with
older children; upon investigation of the situation, the guardian ad litem concluded that Steve
made the appropriate supervision corrections. Also, the guardian ad litem found that Steve
had established an earlier bedtime for Jake, which effectively addressed Jake's teacher's
concern about Jake being tired at school. Regarding Melannie, the guardian ad litem was
concerned that Melannie had left the children with Steve when she moved out of the marital
home, which contradicted Melannie's assertion that she always put the children first. Also,
the guardian ad litem was concerned that Jake's relationship with his developmentally-
6
challenged half-sister might inappropriately burden him with responsibility.
The Chancellor's Custody Decision
¶18.
In the chancellor's opinion, issued on March 1, 2007, the chancellor considered each
of the Albright factors, including: (1) the age, health, and sex of the child; (2) a determination
of which parent had the continuity of care prior to the separation; (3) which parent has the
best parenting skills; (4) which parent has the willingness and capacity to provide primary
child care; (5) the employment and employment responsibilities of each parent; (6) physical
health, mental health, and age of the parents; (7) emotional ties of parent and child; (8) moral
fitness of parents; (9) the child's home, school, and community record; (10) the child's
preference at an age sufficient to express a preference by law; (11) stability of the home
environment; and (12) any other factors relevant to the parent-child relationship. Albright
v. Albright, 437 So. 2d 1003, 1005 (Miss. 1983).
¶19.
The chancellor found both Steve and Melannie to be good parents, noting: "This is a
hard case for this Court to decide. It’s a very, very close call, and, frankly, it’s kind of like
that, when you have got two people that want custody of the child and both of them are good
parents."
¶20.
The chancellor found that four Albright factors favored Steve. First, the chancellor
found that Jake needed a strong male influence in his life; therefore, the health and sex of the
child weighed in favor of Steve. Similarly, the continuity of care weighed in favor of Steve
because, although both parties jointly cared for Jake before the separation, Steve had cared
for Jake during the majority of the time after Melannie left the marital home. The chancellor
found that the moral fitness factor favored Steve because of Melannie’s admitted affair.
7
Finally, the chancellor found that Jake's home, school, and community record favored Steve
because Jake had lived in Hernando since 2003, and he did well in school and participated
in a number of extracurricular activities there.
¶21.
Of the remaining factors, the chancellor found that four factors weighed in favor of
Melannie. Relying on the testimony of Thompson, and on the evidence concerning Steve's
temper and discipline of Jake, the chancellor found that Melannie had the better parenting
skills, "especially with the relationship, instruction, education[,] and discipline."
The
chancellor also found Melannie had more willingness and capacity to provide primary child
care. In making this finding, the chancellor stated that both parents were capable of caring
for Jake, but: (1) Melannie worked an average of two fewer twenty-four-hour shifts each
month, (2) Melannie basically lived on Jake's school campus in Pope, and (3) Melannie had
extended family very close by to assist with Jake's care. On the other hand, Steve planned
on getting a second job, and he relied on his elderly mother to drive from Grenada to help
care for Jake.
¶22.
The chancellor also found that Jake's home, school, and community record; the
stability of the home environment; and the employment of the parents favored Melannie.
The chancellor specifically noted the presence of extended family near Melannie's home,
including Jake's grandmother and his aunt, uncle, and cousins who lived five minutes away.
The chancellor further noted that Jake played with a cousin after school while supervised by
his mother and grandmother, and that Melannie's job required her to be out of the home only
two days per week. The chancellor expressed his concern with Steve's temper, although he
noted that the guardian ad litem had found no merit to the abuse allegation. The chancellor
8
also found that an "other factor" favored Melannie in the form of the close relationship
between Jake and his half-sister.
¶23.
The chancellor found four Albright factors to be inapplicable or equally favorable to
each parent. Both parents worked similar jobs with similar hours, so their employment
responsibilities, considered alone, favored neither parent. Similarly, both parents were in
good physical and mental health, and both exhibited strong emotional ties to Jake. Lastly,
the chancellor noted that Jake was not yet twelve years old, so he was not of sufficient age
to express a preference as to which parent he wished to live with.
¶24.
Ultimately, the chancellor decided that it was in Jake's best interest for his parents to
share joint legal and joint physical custody. The chancellor's Albright findings indicate that
he was impressed by the quality of the Pope School and by the presence of Jake's extended
family in Pope. Therefore, he ordered Jake to live with Melannie in Pope each school year
and to live with Steve in Hernando each summer. The specifics of the custodial schedule will
be discussed in more detail in our analysis of the issues raised on appeal.
¶25.
Following the chancellor’s bench opinion, the chancellor entered a final decree of
divorce on April 12, 2007. The judgment granted the parties a divorce, approved their
agreed-upon property division, and memorialized the findings from the bench opinion in a
final judgment. From the final judgment of divorce, Steve perfected this appeal.
STANDARD OF REVIEW
¶26.
"[The appellate court] will not disturb a chancellor's judgment when supported by
substantial evidence unless the chancellor abused his discretion, was manifestly wrong,
clearly erroneous, or an erroneous legal standard was applied." Chapel v. Chapel, 876 So.
9
2d 290, 292 (¶8) (Miss. 2004). Under this standard of review, our purpose is to determine
whether the chancellor's ruling was supported by credible evidence, not whether we agree
with that ruling. Lee v. Lee, 798 So. 2d 1284, 1290 (¶22) (Miss. 2001).
ANALYSIS OF THE ISSUES
I.
¶27.
The Chancellor’s Application of the Albright Factors
In his first assignment of error, Steve takes issue with the chancellor's application of
the Albright factors to the evidence. Steve claims that the chancellor erred by finding that
four of the factors favored Melannie and that two of the factors were neutral. We will only
address the Albright findings with which Steve takes issue, remaining mindful that "the
polestar consideration in child custody cases is the best interest and welfare of the child."
Albright, 437 So. 2d at 1005.
A.
¶28.
Best Parenting Skills
Steve argues that the chancellor erred by finding that, due to Steve's temper and his
failure to properly discipline Jake, Melannie was the parent with better parenting skills.
Steve contends that in making this finding, the chancellor relied too heavily on the testimony
of Melannie's former coworker, Thompson. Steve claims that Thompson's knowledge of
Melannie’s parenting skills was limited because she used qualifying phrases such as "to my
knowledge."
¶29.
We disagree with Steve’s assessment of the chancellor's findings on this factor.
Melannie introduced testimony about Steve’s temper and his inconsistent discipline; there
was no error in the chancellor's reliance on that evidence about Steve. It was within the
chancellor's discretion to weigh Thompson's credibility as a witness to Melannie's parenting
10
skills. We find that the chancellor's decision that Melannie had the best parenting skills was
supported by substantial evidence.
B.
¶30.
Willingness and Capacity to Provide Primary Child Care
Steve argues that the chancellor incorrectly found that Melannie demonstrated more
willingness and capacity to provide primary child care. Steve argues that Melannie's
schedule was not more flexible than his own, and that the chancellor incorrectly penalized
him because none of Jake’s extended family lived nearby. To support this argument, Steve
cites Watts v. Watts, 854 So. 2d 11, 15 (¶14) (Miss. Ct. App. 2003), in which this Court
stated that a mother should not have been penalized in a custody decision for her lack of an
extended family in the area.
¶31.
"[T]he presence of extended family is a legitimate factor to support awarding custody
to a parent." Messer v. Messer, 850 So. 2d 161, 167 (¶18) (Miss. Ct. App. 2003) (citing
Neville v. Neville, 734 So. 2d 352, 355 (¶10) (Miss. Ct. App. 1999)). In discussing the very
argument Steve currently advances, we stated in Gilliland v. Gilliland, 969 So. 2d 56, 71
(¶¶52-53) (Miss. Ct. App. 2007), that Watts "does not demand our departure from" the
principle that the presence of an extended family is a legitimate consideration.
The
chancellor properly took into account the fact that extended family members live very close
to Melannie and Jake in Pope. The proximity of extended family members is especially
relevant in this case because both parents relied extensively on childcare provided by others
during their twenty-four-hour work shifts.
¶32.
The chancellor also correctly took into account the testimony that Steve generally
worked two more twenty-four-hour shifts per month than Melannie, and that Melannie
11
worked a more flexible schedule that allowed her to switch shifts whenever necessary.3
C.
¶33.
Employment of the Parents and Responsibilities of that Employment
Both Steve and Melannie were employed in similar careers with fairly similar time
requirements. We find no error in the chancellor's determination that, based solely on their
employment, this factor favored neither parent.
D.
¶34.
Emotional Ties of the Parent and Child
There was no error in the chancellor's finding that there was a strong bond between
Jake and each of his parents.
E.
¶35.
Stability of the Home Environment and Employment of Each Parent
Steve argues that the chancellor erred by finding that this factor favored Melannie
because of Melannie's living arrangement on the Pope School's campus and the small-town
atmosphere of Pope. Steve also cites to Watts in arguing that the chancellor incorrectly
considered the presence of Melannie's extended family in Pope.
¶36.
We find no merit to Steve's arguments concerning this factor. We have already
considered and rejected Steve's argument concerning Watts. Furthermore, the guardian ad
litem noted that Jake had an excellent living and schooling arrangement in Pope. Melannie
testified concerning her home's close proximity to Jake's school and the presence of family
members who cared for Jake while Melannie was at work. We find there was substantial
3
The chancellor erroneously stated in the bench opinion that Steve worked "two days
a week more" than Melannie. (Emphasis added). However, it appears that the chancellor
was cognizant of the evidence that Steve worked two days per month more than Melannie,
not two days per week more. This is because, in the next sentence, the chancellor stated:
"Two days during their schedules. The testimony was, he worked ten and she worked eight."
The ten-day and eight-day schedules logically could not have been encompassed by a week.
12
evidence in support of the chancellor's decision that this factor favored Melannie.
F.
¶37.
Other Factors–Separation of the Siblings
Finally, Steve takes issue with the chancellor's determination that it would have an
adverse impact on Jake to separate him from his half-sister. Steve cites C.W.L. v. R.A., 919
So. 2d 267, 273 (¶21) (Miss. Ct. App. 2005) in support of this argument. In C.W.L., this
Court stated that "there is no general rule in this state that the best interest of siblings is
served by keeping them together." Id. However, further addressing this issue, we stated the
following:
While the placement of children with their siblings is not a concern that
"overrides" the best interest of the child, our case law makes it clear that
keeping siblings together is assumed to be in the best interest of a child, absent
a showing that the circumstances in a particular case are to the contrary.
Owens v. Owens, 950 So. 2d 202, 207 (¶16) (Miss. Ct. App. 2006). In Sellers v. Sellers, 638
So. 2d 481, 484 (Miss. 1994) (quoting Mixon v. Bullard, 217 So. 2d 28, 30 (Miss. 1968)),
which we relied upon in C.W.L., the supreme court stated that courts should try to keep
siblings together if possible.
¶38.
As in Owens, the chancellor properly considered each Albright factor and additionally
considered whether it was in Jake’s best interest to be separated from his half-sister. The
chancellor concluded from the testimony that there was a strong relationship between Jake
and his half-sister and that any great reduction in his time with her would adversely impact
Jake. Accordingly, we find no error in the chancellor’s decision that this factor favored
Melannie.
¶39.
The chancellor noted that this was a difficult case to decide because both Steve and
13
Melannie were good parents. After reviewing the evidence pertaining to the Albright factors,
we agree that this was a close case. However, under our standard of review, we must affirm
the chancellor's custody decision because it was supported by substantial, credible evidence,
and it was not clearly erroneous, manifestly wrong, or the result of the application of an
erroneous legal standard. This issue is without merit.
II.
¶40.
The Award of Joint Physical Custody
The chancellor determined that an award of joint physical and legal custody was in
Jake's best interest. The chancellor specified that Jake was to live with Melannie during the
academic school year so Jake could attend the Pope School, and Steve was to have custody
of Jake on alternating weekends and to pay child support to Melannie. However, during
Jake's summer vacation, Steve was to have custody, with Melannie to exercise custody on
alternating weekends and to pay child support to Steve in June and July. Melannie was
granted summertime custody of Jake during the week after school ended and the week before
school began. Steve was granted custody of Jake each spring break and each Thanksgiving
break. The parties annually alternated the custody of Jake on Thanksgiving Day; Jake's
Christmas break was roughly divided evenly between the parties.
¶41.
Mississippi Code Annotated section 93-5-24(5)(c) (Rev. 2004) provides that "'joint
physical custody' means that each of the parents shall have significant periods of physical
custody." Steve argues that his custodial periods were too limited to fulfill the statutory
requirement of "significant periods of physical custody." Citing Rush v. Rush, 932 So. 2d
794, 799 (¶18) (Miss. 2006), Steve argues that the custodial arrangement constituted de facto
sole physical custody to Melannie and standard visitation to him.
14
¶42.
In Rush, the chancellor awarded joint legal and physical custody to the parents, with
primary physical custody to the father and visitation for the mother. Id. at 796 (¶7). The
mother was to exercise her visitation on Tuesday nights, every other weekend, and at times
recognized by the court as regular visitation, including extended periods in the summer, at
Christmas, on other holidays, and at other times recognized by the chancery court as standard
visitation. Id. at 799 (¶17). The chancellor provided no further information about the
duration of the "extended periods." The supreme court found the chancellor's order to be
contradictory because, while the chancellor found that it was in the child's best interests for
the parents to have joint legal and physical custody, he also specified that the father would
have primary physical custody subject to the mother's visitation. Id. at 800 (¶21). Moreover,
the supreme court held that the father had the lion's share of the time with the child, and the
mother's custodial time fell "woefully short" of establishing that the mother was awarded
joint physical custody under section 93-5-24. Id. at 799 (¶18). The supreme court reversed
the custody award and remanded it for clarification. Id. at 800 (¶21).
¶43.
Steve argues that the chancellor's order was comparable to that in Rush and amounted
to an award of liberal visitation, far short of what is required for joint physical custody.
However, in Rush, the chancellor ordered visitation for the mother including undefined
"extended periods" of time during the summer, on holidays, and at other times comparable
to standard visitation. There was no express award of visitation in this case. Rather, the
chancellor granted Steve physical custody during Jake's summer vacation, except for the first
and last week of his summer vacation, and during Jake's spring break week and his
Thanksgiving break. Melannie was to exercise her physical custody during Jake's public
15
school year, which by statute consists of one hundred and eighty days, or thirty-six weeks.
Miss. Code Ann. § 37-13-63(1) (Rev. 2007). Otherwise, the parties' time with Jake,
consisting of alternating weekends, Thanksgiving Day, and the Christmas holiday, was
equally divided.
¶44.
Joint physical custody does not require equal time with each parent, but only requires
that the parents have "significant periods of physical custody . . . to assure a child of frequent
and continuing contact with both parents." Miss. Code Ann. § 93-5-24(5)(c). We find that
the amount of custodial time awarded to Steve, while not generous, still afforded Steve
significant periods of physical custody and assured Jake frequent and continuing contact with
both Steve and Melannie. We cannot say that the chancellor exceeded his discretion in
finding that Jake's best interest demanded a joint physical custody arrangement, and one that
permitted Jake to attend the Pope School. The chancellor's decision that Jake should remain
with Melannie during the school week was reasonable because there was testimony that
Jake's grades suffered during the separation period when Steve and Melannie shuffled him
back and forth between Hernando and Pope during the school week. We note that Steve's
custodial periods, including the summer months and spring break week, exceeded the
custodial award in Rush that was found to be insufficient for joint physical custody. This
issue is without merit.
III.
¶45.
The Chancellor’s Consideration of the Guardian Ad Litem's
Testimony
Lastly, Steve claims that it was error for the chancellor to reject the concerns of the
guardian ad litem without summarizing the guardian ad litem's opinions and explaining why
16
they were rejected. Steve appears to claim that the guardian ad litem favored granting him
custody and that the chancellor should have paid more heed to the guardian ad litem's
concerns. Steve argues that pursuant to the holding in Floyd v. Floyd, 949 So. 2d 26, 29 (¶8)
(Miss. 2007), the chancellor committed reversible error by neglecting to include a summary
of the guardian ad litem's recommendations with an explanation of his rejection of those
recommendations. Relying on S.N.C. v. J.R.D., 755 So. 2d 1077, 1082 (¶18) (Miss. 2000),
the supreme court in Floyd held that "a chancellor shall at least include a summary review
of the recommendations of the guardian in the court's findings of fact when the appointment
of a guardian is required by law." Floyd, 949 So. 2d at 29 (¶8). When the appointment of
a guardian ad litem is not mandatory, this information is not required from the chancellor.
Tanner v. Tanner, 956 So. 2d 1106, 1109 (¶13) (Miss. Ct. App. 2007).
¶46.
Melannie argues that the appointment of a guardian ad litem was not mandatory.
Under Mississippi Code Annotated section 93-5-23 (Supp. 2008), the chancellor "may
investigate, hear, and make a determination" when a charge of abuse or neglect arises in a
child custody case, and in such cases shall appoint a guardian ad litem. Also, the chancellor
may order an investigation by DHS. Miss. Code Ann. § 93-5-23. We have stated that
section 93-5-23 gives the chancellor some discretion to determine whether there is a
legitimate issue of abuse or neglect, even when one party has made such assertions in the
pleadings. Johnson v. Johnson, 872 So. 2d 92, 94 (¶8) (Miss. Ct. App. 2004).
¶47.
In Robison v. Lanford, 841 So. 2d 1119, 1126 (¶23) (Miss. 2003), the supreme court
found that the appointment of a guardian ad litem was mandatory. In Robison, there was
documented evidence that a child's buttocks were bruised after a parent-administered
17
spanking, and there was an investigation by DHS. Id. at 1120-21 (¶3). In this case, the
chancellor appointed the guardian ad litem after Melannie made an allegation that Steve had
abused Jake. This allegation was substantiated with photographs of bruises on Jake that were
visible the day after Steve admittedly had spanked Jake. However, the chancellor did not
order DHS to investigate, and there is no record of whether DHS opened a case file after
having been contacted by Jake's principal. The guardian ad litem testified that after an
investigation, she found no evidence of abuse.
¶48.
While discussing who was to pay the guardian ad litem fees, the chancellor stated that
the appointment of the guardian ad litem was mandatory due to Melannie's abuse allegations
and the involvement of DHS. Assuming that the appointment of a guardian ad litem was
mandatory, we find that the chancellor properly addressed the guardian ad litem's findings.
The guardian ad litem made no custody recommendation; the only recommendation that the
guardian ad litem made to the court was that there were no grounds for finding any abuse of
Jake. This was reflected in the chancellor’s divorce decree, which stated that there was
insufficient proof of child abuse. The chancellor's written findings on the Albright factors
show that he accepted much of the guardian ad litem's testimony pertaining to the Albright
factors, but disagreed with some of that testimony as explained in the opinion.4 We find that
the chancellor properly considered all of the evidence before the court in rendering the
custody decision. This issue is without merit.
¶49.
THE JUDGMENT OF THE CHANCERY COURT OF DESOTO COUNTY IS
4
The chancellor disagreed with the guardian ad litem's opinion that Jake's relationship
with his half-sister inappropriately burdened Jake.
18
AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE
APPELLANT.
KING, C.J., LEE AND MYERS, P.JJ., IRVING, GRIFFIS, BARNES, ISHEE,
ROBERTS AND CARLTON, JJ., CONCUR.
19
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