Teressa C. Curry v. Joseph R. McDaniel
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2009-CA-00577-COA
TERESSA C. CURRY
APPELLANT
v.
JOSEPH R. MCDANIEL
APPELLEE
DATE OF JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEY FOR APPELLANT:
ATTORNEY FOR APPELLEE:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
03/11/2009
HON. JOHN S. GRANT III
RANKIN COUNTY CHANCERY COURT
RANDY A. CLARK
MICHAEL P. YOUNGER
CIVIL - CUSTODY
CHILD CUSTODY AWARDED TO FATHER
WITH MOTHER RECEIVING VISITATION
AFFIRMED: 05/25/2010
DISPOSITION:
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
BEFORE MYERS, P.J., ISHEE AND ROBERTS, JJ.
MYERS, P.J., FOR THE COURT:
¶1.
The Rankin County Chancery Court awarded legal and physical custody of C.H.,1 a
minor child, to her father, Joseph R. McDaniel, based on a finding that a material change in
circumstances had occurred since its previous judgments that warranted changing C.H.’s
custody from her mother, Teressa C. Curry. Curry appeals. Finding no reversible error with
the chancery court’s judgment, we affirm.
FACTS
1
In deference to the minor child, this Court has substituted initials in place of the
child’s name.
¶2.
In November 2001, McDaniel and the Mississippi Department of Human Services
(DHS) entered into a stipulated agreement of paternity in the Rankin County Chancery Court,
and McDaniel was adjudicated the natural father of C.H., a child born out of wedlock to
Curry in March 2001. The paternity judgment was silent as to custody. In March 2007,
based on information that Curry had plans to move to Tennessee with C.H., McDaniel filed
a complaint in the chancery court in which he requested the court to set child support in an
amount to be deducted from his wages, secure his visitation rights, amend C.H.’s birth
certificate to reflect McDaniel’s surname, and provide other relief. Curry filed a crosscomplaint for child custody and support. On May 8, 2007, the parties entered into a
stipulated agreement to allow for a family master to hear the matters pertaining to “child
custody, child support, name change, and visitation.”
On June 21, 2007, Curry and
McDaniel entered into an agreed order establishing child support, visitation, name change,
and related relief which was approved by the family master and affirmed by the chancellor.
The order, however, was silent as to custody. In November 2007, DHS also filed a complaint
in the Rankin County Chancery Court against McDaniel, seeking past and future support of
the child, a withholding order, and health insurance.
¶3.
In December 2007, McDaniel filed a petition in the Rankin County Chancery Court
charging that a material change in circumstances had occurred since the court’s June 2007
decree was entered and that the change adversely affected the safety and welfare of C.H.
Two evidentiary hearings were held in the matter, the first on September 4, 2008, and the
second on February 12, 2009. The only witnesses who testified at the hearings were Curry,
2
McDaniel, and McDaniel’s wife of one year, Yolonda McDaniel. Yolonda and McDaniel
had lived together for three years prior to their marriage, and Yolonda has known McDaniel
and C.H. for four years. Curry is also married. She and her husband married in April 2008.
¶4.
On March 11, 2009, the chancery court issued a judgment finding that since rendition
of the past final judgments in this cause, a material change in circumstances had occurred
which warranted the court changing custody of C.H. from Curry to McDaniel. Taking into
consideration Tucker v. Tucker, 453 So. 2d 1294 (Miss. 1984) and Albright v. Albright, 437
So. 2d 1003 (Miss. 1983), the court held that it was in the best interest of C.H. that custody
be changed, and the court awarded legal and physical custody of the minor child to
McDaniel. The court granted Curry liberal visitation rights and held that due to Curry’s
health and unemployment, she would not be required to pay child support.
¶5.
Curry appeals asserting the following assignments of error:
I. The chancellor committed manifest error in not treating this case solely as
one for modification of custody.
II. Had the chancery court used the proper standard of modification, McDaniel
would not have prevailed.
III. The chancellor committed manifest error in considering testimony he had
previously found inadmissible.
IV. The chancellor’s consideration of evidence pertaining to Curry’s disability
was discriminatory and in violation of the spirit of federal law.
V. The chancellor’s Albright analysis was fatally flawed.
STANDARD OF REVIEW
¶6.
“The matter of child custody is a matter within the sound discretion of the chancellor.”
3
Sturgis v. Sturgis, 792 So. 2d 1020, 1023 (¶12) (Miss. Ct. App. 2001). In reviewing the
award of child custody, this Court will affirm the decision of the chancellor unless that
decision is manifestly wrong, clearly erroneous, or the chancellor applied an erroneous legal
standard.
Roberson v. Roberson, 814 So. 2d 183, 184 (¶3) (Miss. Ct. App. 2002).
“[F]indings of fact made by a chancellor may not be set aside or disturbed upon appeal if
they are supported by substantial, credible evidence.” Marascalco v. Marascalco, 445 So.
2d 1380, 1382 (Miss. 1984) (citations omitted).
DISCUSSION
I. The chancellor committed manifest error in not treating this case solely
as one for modification of custody.
II. Had the chancery court used the proper standard of modification,
McDaniel would not have prevailed.
¶7.
Curry contends that chancellor erroneously treated this case as an initial-custody
matter, rather than as one for custody modification. Curry submits that the chancellor
acknowledged that she has had de facto custody of C.H. for most of C.H.’s life, and despite
the chancellor’s decision to award McDaniel custody of C.H. based on a material change of
circumstances, the chancellor did not seriously consider this case to be a modification case.
Curry contends that the chancellor gave short shrift to the material-changes requirement and
proceeded directly to a best-interest analysis under Albright.
¶8.
Prior to issuing his final ruling, the chancellor provided a detailed discussion from the
bench following the close of evidence in the case and explained to the parties what the law
mandates in cases where a party is seeking modification of a previous-custody determination
4
as compared to an initial-custody determination. The chancellor pointed to the case of
Tucker, wherein the supreme court reiterated that:
A decree for child custody shall not be modified so as to change custody from
one parent to the other unless, subsequent to the original decree, there has been
a material change in circumstances under which the child is living with the
custodial parent which adversely affects the child’s welfare.
Tucker, 453 So. 2d at 1297 (citations omitted). The chancellor explained that even if the
court finds a material change in circumstances has occurred and the change has adversely
affected the child, the court still must determine whether it is in the best interest of the child
to change custody: always keeping in mind, the best interest and welfare of the child are the
polestar considerations. See id. (citing Denney v. Denney, 453 So. 2d 693, 694 (Miss.
1984)).
¶9.
The chancellor found in this instance that there had been no custody determination
decided or approved by the court prior to McDaniel’s petition for custody modification.
Because there had not been a first-time finding by the court regarding custody of C.H, the
chancellor viewed this matter as a “straight custody case.” The chancellor explained that
when there has been no previous custody determination, a material-changes test is not
required; rather, Mississippi law instructs chancellors to apply an Albright analysis in order
to determine in whose custody does the best interest of the child lie. He stated, however, that
even if there had been a prior custodial award by the court, a material change in
circumstances adversely affecting the welfare of C.H. was sufficiently demonstrated to the
court. The chancellor articulated his reasoning as follows:
5
The [court] finds in this particular case, even arguendo, if there had been a
prior custodial award by a [court] that in this particular case under the
circumstances, and those circumstances, I’m talking about negative hygiene
issues with this little girl while she has been with the mother; an academic
failure, failure to make academic progress under parental attention. This
instance of endangerment to the child or potential danger to the child resulting
from driving recently without a driver’s license and with impaired vision, all
of those things in their totality would equate with a material change of
circumstances adverse to the child which would adversely affect, potentially,
the health of the child.
¶10.
This Court has held that “the material[-]changes standard used in modification
proceedings is dependent on there being a prior determination of custody.” C.W.L v. R.A.,
919 So. 2d 267, 271 (¶10) (Miss. Ct. App. 2005) (quoting Law v. Page, 618 So. 2d 96, 101
(Miss. 1993)). But, in cases where no prior determination of custody has been considered,
“the proper standard of law to be applied is that found in divorce proceedings, which is the
best interest of the minor child.” Id. (citations omitted). Once the father of a child born out
of wedlock 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.” Williams v. Stockstill, 990 So.
2d 774, 776 (¶9) (Miss. Ct. App. 2008) (citing Smith v. Watson, 425 So. 2d 1030, 1033
(Miss. 1983)). This Court has further held that “there is no law to support a different burden
of proof for fathers of children born out of wedlock who delay in seeking custody[;] [t]he law
is that unless a prior custody determination has been made, custody is determined by the
Albright factors.” Id. at 776 (¶8) (citing Law, 618 So. 2d at 101; Romans v. Fulgham, 939
So. 2d 849, 852 (¶4) (Miss. Ct. App. 2006); C.W.L., 919 So. 2d at 271 (¶10); S.B. v. L.W.,
793 So. 2d 656, 658 (¶7) (Miss. Ct. App. 2001)).
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¶11.
As the chancellor correctly found, there has not been a custody determination either
decided or approved by the court with regard to C.H. In line with our decision in Williams,
de facto custody is not a dispositive factor as to whether the modification standard applies.
Thus, the chancellor’s statement that he viewed this matter as a “straight custody case” was
not an incorrect statement of law. Nevertheless, the matter was pleaded and tried as a case
for custody modification, and the chancellor ultimately reached a final decision on that basis.
Accordingly, we now move to determine whether the evidence supports the chancellor’s
ruling.
¶12.
In accord with Tucker, the governing case law has delineated a three-part test for
custody-modification proceedings. The moving party must prove by a preponderance of the
evidence that: (1) a material change in circumstances has occurred; (2) this change adversely
affects the welfare of the child; and (3) a change of custody is in the best interest of the child.
Mercier v. Mercier, 11 So. 3d 1283, 1286 (¶9) (Miss. Ct. App. 2009). Chancellors are also
instructed to take into consideration the totality of the circumstances in determining whether
there has been a material change in circumstances. Mabus v. Mabus, 847 So. 2d 815, 818
(¶8) (Miss. 2003). A custody modification is warranted in the event that the moving parent
successfully demonstrates that an application of the Albright factors reveals a material
change which adversely affects the child and that a change of custody is in the child’s best
interest. Jones v. Jones, 878 So. 2d 1061, 1065 (¶11) (Miss. Ct. App. 2004) (citing Sanford
v. Arinder, 800 So. 2d 1267, 1272 (¶18) (Miss. Ct. App. 2001)). “Above all, in modification
cases, as in original awards of custody, we never depart from our polestar consideration: the
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best interest and welfare of the child.” Johnson v. Gray, 859 So. 2d 1006, 1013 (¶33) (Miss.
2003) (citations and internal quotations omitted).
¶13.
We find that the record adequately supports the chancellor’s evidentiary findings with
regard to the negative-hygiene issues experienced by C.H., her academic struggles, and the
incident that endangered C.H. brought about by Curry’s reckless decision to drive with
impaired vision.
¶14.
Evidence was presented that while in Curry’s care, C.H. has suffered from an episode
of lice infestation, a urinary-tract infection, at least one yeast infection, allergies, a lack of
bathing and toilet training, and a broken arm.
¶15.
Yolonda testified that she discovered C.H.’s lice infestation during one of C.H.’s visits
with McDaniel when she observed C.H. scratching her head. According to Yolonda, she
successfully got rid of the lice with treatment. Curry testified that C.H. was afflicted with
head lice from her kindergarten class when she and C.H. were living in Mississippi, and she
claimed that she treated the lice infestation. Yolonda testified that C.H. has had multiple
yeast infections, one since moving to Tennessee, the rest occurring prior to the June 2007
visitation order. Yolonda said that she, herself, obtained the necessary medication to treat
C.H.’s yeast infections. According to Curry, however, C.H. has had only one yeast infection,
which was due to C.H. having to take antibiotics. As to C.H.’s urinary-tract infection, the
record reveals that it occurred while C.H. was living in Tennessee. According to Yolonda,
Curry obtained the necessary medication to treat this condition and sent the medication with
C.H. during one of C.H.’s visits to Mississippi.
8
¶16.
McDaniel and Yolonda each testified that C.H. suffers from allergies. According to
McDaniel, C.H. is allergic to cigarette smoke. McDaniel testified that C.H. was always sick
with a runny nose, and she smelled like smoke at the beginning of each of his visitations with
C.H. He said that he had asked Curry to quit smoking around C.H. because it was making
her sick. Curry testified that she did not know whether C.H. was allergic to cigarette smoke;
she stated that she thought C.H. was allergic only to cats. Curry added, however, that she
and her husband have both quit smoking.
¶17.
According to Yolonda, C.H. has demonstrated an inability to bathe correctly on her
own, and she has had to teach C.H. how to clean her body and wash her hair. Yolonda said
that C.H., who was almost eight-years old at the time of her last visit with McDaniel, had to
call out for her help after using the restroom because she did not know how to wipe herself.
According to Curry, however, C.H. knows how to bathe herself, and she can do so
unsupervised. Curry also testified that C.H. is toilet trained, and she has not had to assist
C.H. with wiping herself since C.H. was in diapers.
¶18.
As to C.H.’s broken arm, Curry testified that the injury occurred from a trampoline
accident at their home in Tennessee. Although McDaniel attempted to question Curry as to
whether this is how the injury actually occurred, he failed to provide sufficient countervailing
evidence that might lead one to conclude otherwise. Much ado, however, was made at trial
with regard to the circumstances following this injury. McDaniel claimed that Curry used
the injury purposely to impede his summer visitation with C.H. He alleged that Curry would
not allow C.H. to come to Mississippi because she had doctors appointments. McDaniel also
9
had a problem with the fact that Curry’s husband had removed the cast instead of C.H.’s
doctor.
Curry, on the other hand, testified that she did not intend to interfere with
McDaniel’s visitation with C.H., and she told the court that all McDaniel had to do was drive
up to Tennessee and get C.H. Curry testified that her husband had removed the cast because
C.H. had missed her appointment with the doctor to have it removed. Curry stated that she
took C.H. to the doctor the following day, and C.H.’s arm checked out fine.
¶19.
With regard to C.H.’s academic struggles, the record reveals that C.H. was held back
in five-year-old kindergarten because her teacher felt that C.H. was not yet mature enough
to advance forward. At the time of trial, C.H. was in the second semester of first grade.
Curry testified that C.H. struggled during the first semester, but she was doing better in the
second semester. Curry did not present the chancellor with any progress reports; however,
she submitted into evidence merit certificates awarded to C.H. for her perfect attendance.
¶20.
On the matter of child endangerment, the evidence showed that in December 2008,
prior to the second hearing in February 2009, Curry and C.H. were involved in an automobile
accident; the record does not disclose whether anyone was injured. Curry was driving at the
time. According to the record, Curry suffers from a hereditary eye disease, known as
Reginitis Pigmentosa. Curry, who was thirty-nine years old at the time of trial, said that she
has had the disease since her late twenties. According to Curry, the disease has rendered her
legally blind; thus, she is not licensed to drive. When asked why she was driving when the
accident occurred, Curry said that her father, who had been living with them in Tennessee,
had recently passed away, and they were going to have his ashes spread. The chancellor
10
queried Curry as to the severity of the disease. According to Curry, she is able to read with
the aid of reading glasses. She told the chancellor that she was able to see him, although he
was blurry. Curry indicated that the disease is degenerative, and she is under doctors’ care.
She said that there has been little change in her vision over the last year. Curry testified that
the disease does not interfere with her ability to care for C.H. She told the court that her
husband, who works as a local truck driver, is there to assist with C.H.’s care. She admitted,
however, that her husband’s job requires him to go out of town once a week. Curry said that
she has a friend, who is a registered nurse, that lives ten to fifteen minutes away from their
home and is willing to drive Curry and C.H. wherever they need to go when Curry’s husband
is not home. Curry also said that she has a neighbor, whom Curry described as an elderly
woman, that lives down the hill from their house who can also provide assistance if
necessary.
¶21.
We acknowledge Curry’s argument that all children get sick and experience accidents.
We also acknowledge that the type of ailments experienced by C.H., some of which the
record reveals occurred prior to her move to Tennessee, do not necessarily, in and of
themselves, demonstrate neglect on the part of the custodial parent. And certainly, some
children, at no fault of the parent(s), struggle academically. The chancellor acknowledged
these realities as well. But, the chancellor found it significant in this particular case that C.H.
has continued to demonstrate an inability to bathe and clean herself properly. Implicitly
concluding Yolonda’s testimony to be more credible than Curry’s, the chancellor found it
unacceptable that a girl C.H.’s age has shown an on-going lack of bathing skills and toilet-
11
training. With regard to C.H.’s academic struggles, the chancellor acknowledged that C.H.
has had perfect attendance while in the first grade. However, he found it problematic that
Curry failed to provide the court with evidence as to C.H.’s current progress. The chancellor
expressed that a child who fails five-year-old kindergarten, likely has a tough academic
future ahead of her, and Curry provided the court no adequate explanation for C.H.’s
academic struggles. Lastly, what clearly troubled the chancellor most in this matter was the
driving incident in December 2008. The chancellor indicated that the decision by Curry, who
is vision impaired, to place C.H. in such a situation demonstrated poor parenting skills and
caused him concern about Curry’s ability to make good judgments.
¶22.
The evidence presented sufficiently supports each of the aforementioned factual
findings by the chancellor, and we find that the chancellor properly took into consideration
the totality of the circumstances in this case. Mabus, 847 So. 2d at 818 (¶8). Based on our
review of the record, we cannot say that the chancellor manifestly erred in concluding that
a material change of circumstances had occurred which adversely affected the safety and
welfare of C.H. Accordingly, these issues are without merit.
III. The chancellor committed manifest error in considering testimony he
had previously held inadmissible.
IV. The chancellor’s consideration of evidence pertaining to Curry’s
disability was discriminatory and in violation of the spirit of federal law.
¶23.
Curry argues issues three and four together as they deal with the same information.
Curry avers that the chancellor placed undue weight upon her physical disability. She
contends that while the chancellor gave other reasons to deny her custody of C.H. in his
12
Albright analysis, it is clear that the chancellor ultimately decided this case on the fact that
she has serious vision problems and McDaniel does not. Curry believes this is demonstrated
by the chancellor’s reference to testimony, which he had previously ruled inadmissable,
concerning Curry allegedly driving an automobile and by the chancellor’s statement that
Curry did so while in a “high emotional state” which “shows poor reason and poor parenting
skills.” Curry argues that the chancellor manifestly erred by taking inadmissable evidence
into consideration, and she maintains that the chancellor’s statement describing her state of
mind is wholly unsupported by the record. Curry argues that one can conclude from the
chancellor’s accusation that because she suffers a disability, she therefore has poor parenting
skills. Curry submits that such a finding reflects negatively on the State of Mississippi, and
she proposes that we take into consideration the Americans with Disabilities Act, 42 U.S.C.
§§ 12101-12213 (the “ADA” or “Act”), which she points out was a sweeping mandate
enacted by Congress to protect our most innocent citizens.
¶24.
At the outset, we find no persuasive authority which supports the proposition that the
ADA applies or was intended to apply to child-custody determinations. See, e.g., Arneson
v. Arneson, 670 N.W.2d 904, 911 (S.D. 2003) (“[N]o authority supports the extension of the
ADA into parental custody disputes. Most cases concerning the application of the ADA in
court proceedings deal with reasonable courthouse accommodations.”) (citing Matthews v.
Jefferson, 29 F. Supp. 2d 525 (W.D. Ark. 1998)). Section 12132 of the ADA mandates that
“no qualified individual with a disability shall, by reason of such disability, be excluded from
participation in or be denied the benefits of the services, programs, or activities of a public
13
entity, or be subjected to discrimination by any such entity.” While a state courthouse has
been considered a “public entity” for purposes of the ADA, a child-custody determination
has been held not to constitute the type of “service, program, or activity” contemplated by
the Act. Arneson, 670 N.W.2d at 911 (citations omitted).
¶25.
A parent’s physical or mental disability does not in itself determine the outcome of
a child-custody dispute; rather, it is the best interest and the welfare of the child that controls
the chancellor’s decision.2 Based on longstanding fundamental principle, the child’s best
interest is expected to weigh in the judicial minds of our chancellors “far heavier than [the
best interest] of either parent.” Evans v. Evans, 994 So. 2d 765, 769 (¶13) (Miss. 2008)
(citations omitted); see also Earwood v. Cowart, 232 Miss. 760, 765, 100 So. 2d 601, 603
(1958) (“The guiding star in such cases is the best interest of the minor child”). The physical
and mental health of the parents is one of the Albright factors our chancellors are instructed
to take into consideration when determining whose custody would serve the child’s best
interest. Albright, 437 So. 2d at 1005. This individual Albright factor ordinarily should carry
no less or greater weight than the others. Id. However, each case is different, and Albright
was not meant to supplant those principles found in equity with any type of rigid
mathematical formula.
Buchanan v. Buchanan, 587 So. 2d 892, 897 (Miss. 1991).
Ultimately, the chancellor has the discretion to weigh the evidence “the way he [or she] sees
fit” in determining the child’s best interest. Johnson, 859 So. 2d at 1013-14.
2
See, e.g., Deborah H. Bell, Mississippi Family Law § 5.02[1] (1st ed. 2005) (noting
that courts in every state determine custody based on the child’s best interest).
14
¶26.
According to the record, at the first hearing in September 2008, McDaniel called
Curry as an adverse witness. Curry was asked whether she had a wreck while driving with
her daughter in the car since June 2007. Curry replied that she had not, because she did not
have a license to drive. Curry was then asked whether she had a wreck with her daughter in
the car in the last two years; Curry’s attorney objected to the question on the basis that the
question encompassed a period of time prior to June 2007, when the child-support and
visitation order was entered. The chancellor sustained the objection, and he instructed Curry
not to answer to anything that happened before June 2007. At the subsequent hearing in
February 2009, Curry was again asked on cross-examination whether at any time since the
June 2007 order, she had a wreck while driving with her daughter in the car. Curry admitted
that she had, and she indicated the incident happened in December 2008.
¶27.
Clearly, the chancellor was not referring to testimony which he had previously ruled
inadmissable, as the following portion of the chancellor’s ruling discloses:
I’m concerned about the mother’s inability to make good judgment. This
business about driving this last Christmas[;] . . . while a custody case involving
this child is in progress, she takes it upon herself to put this little girl in a
vehicle and transport her, when she can’t see appropriately and doesn’t have
a valid driver’s license. Being in a high emotional state is not an excuse. In
fact, that is even more reason not to subject a child to this type of activity. It
shows poor reason and poor parenting skills.
The chancellor’s comment about Curry’s state of mind apparently stems from the exchange
between Curry and her attorney during redirect examination, when counsel asked Curry why
she was driving. As previously mentioned, Curry said the incident happened a few days after
her father had died. The record indicates that Curry was very close to her father.
15
¶28.
We find no merit to Curry’s contention that the chancellor grounded his decision
solely on the fact that she suffers a severe vision limitation and McDaniel does not. Evidence
was presented that put at issue Curry’s decision-making ability with regard to her disability,
which gave the chancellor cause for concern with regard to the welfare of C.H.
¶29.
Based on the aforementioned reasons, we find no merit with either of these two
assignments of error.
V. The chancellor’s Albright analysis was fatally flawed.
¶30.
In determining who, in the best interest of the child, should have custody, our
chancellors are instructed to take the following factors into the consideration: (1) age, health,
and sex of the child; (2) continuity of care; (3) who has the best parenting skills and who has
the willingness and capacity to provide primary child care; (4) the employment of the parent
and responsibilities of that employment; (5) physical and mental health and age of the
parents; (6) emotional ties of 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. Albright, 437 So.
2d at 1005.
¶31.
The chancellor made detailed findings in this case with regard to the Albright factors.
In summary, the chancellor found as follows:
(1) Age, Health and Sex of the Child
¶32.
Because C.H. was approximately eight years old at the time of trial, and not of tender
16
years, her age favored neither McDaniel or Curry. The chancellor found that C.H. suffers
from allergies, and he found that McDaniel placed more attention on her allergies; thus, the
health factor favored McDaniel. On the other hand, C.H. is female, which the chancellor
found favored Curry. Ultimately, however, the chancellor concluded that this particular
Albright factor weighed evenly for McDaniel and Curry.
(2) Continuity of Care
¶33.
The chancellor found that the evidence presented was insufficient for him to make an
adequate determination as to whether this factor favored either Curry or McDaniel. The
record supports the chancellor’s finding. Even though it was conceded that Curry has had
de facto physical custody of C.H. most of her life, no evidence was presented beyond that
fact.
(3) Parenting Skills
¶34.
The chancellor found that both parents have positives associated with their parenting
skills, but both have exhibited some negatives as well. Both are currently married; but, prior
thereto, both were living in a promiscuous relationship with someone of the opposite sex.
Although there was no showing that C.H. was adversely influenced by such behavior, the
chancellor found their conduct was inappropriate, nonetheless, and it reflected negatively on
both of them.
¶35.
The chancellor noted that C.H. has had issues with regard to her hygiene while in
Curry’s care, and C.H. has demonstrated a poor academic performance while in Curry’s care.
The chancellor reiterated his concern with the automobile accident that occurred in
17
December 2008 involving both C.H. and Curry, which demonstrated poor judgment and poor
parenting skills on Curry’s part.
¶36.
With regard to McDaniel, the chancellor stated that he has not been the perfect parent
either. The chancellor found the fact that McDaniel has failed to timely and properly pay
child support constituted a significant factor. However, citing to Shelton v. Shelton, 653 So.
2d 283, 287 (Miss. 1995), the chancellor held that this negative finding on the part of
McDaniel did not outweigh the best interest of C.H.
¶37.
On this Albright factor, the chancellor concluded that the parent exhibiting the best
parenting skills slightly favored McDaniel.
(4) Employment and Responsibilities of Employment
¶38.
The chancellor did not address this particular Albright factor.
(5) Physical and Mental Health and Age of the Parents
¶39.
The chancellor found that age and mental health favored neither parent over the other.
Physical health, however, favored McDaniel. The chancellor found that through no fault of
her own, Curry suffers from a debilitating vision problem that, in all probability, is going to
get worse over time.
(6) Emotional Ties of Parent and Child
¶40.
The chancellor found that both parents love C.H., and she loves them. This factor
favored neither parent over the other.
(7) Moral Fitness of the Parents
¶41.
The chancellor found this factor even between the parents.
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(8) Home, School, and Community Record of the Child
¶42.
The chancellor found that the school and community record favored neither party.
The home factor, however, favored McDaniel. The chancellor reasoned as follows:
McDaniel has got a traditional family situation. He’s got a step-mother who
is there for [C.H.] to care for her needs when he cannot. He has got a close
system of relatives in the nearby vicinity, and he’s able to transport [C.H.] and
do other things for her. [Curry] has the same traditional type family
arrangement, but she is disadvantaged to the extent that she can’t drive. She
can’t take [C.H.] places even in the event of an emergency, [and must] rely on
acquaintances to come to the aid of [C.H.] in order to transport her or provide
assistance.
(9) Preference of the Child
¶43.
This factor was inapplicable as C.H. was not of age to express a preference.
(10) Stability of Home Environment and Employment of Each Parent
¶44.
The chancellor found that the stability of the home environment favors neither parent
over the other; both have remarried; and both are doing well. The chancellor found that the
stability-of-employment factor favors McDaniel. Curry, unintentionally, is disadvantaged
from an employment standpoint due to her vision problem. On the other hand, C.H. has a
half-sister who is two years older than her that lives with Curry. C.H. also has a half-brother
through Curry, who lives with his father in Mississippi. The chancellor noted that our
supreme court does not favor splitting siblings, and this factor slightly favored Curry.
¶45.
Ultimately, the chancellor concluded that the polestar consideration and the majority
of the Albright factors applied to the evidence before him favored placing C.H. in the custody
of McDaniel.
19
¶46.
Although Curry maintains that the chancellor should have never reached an Albright
analysis, she contends that the chancellor also failed to give due weight to a number of the
Albright factors in deciding the best interest of C.H. However, we may not reverse the
decision of the chancellor unless his decision is clearly erroneous. Roberson, 814 So. 2d at
184 (¶3). And we may not set aside findings of fact made by the chancellor when those
findings are supported by substantial, credible evidence. Marascalco, 445 So. 2d at 1382.
We find no clear error in the chancellor’s decision. The chancellor thoroughly considered
the Albright factors in determining the best interest of C.H., applying the substantial and
credible evidence presented before him. Therefore, this issue is without merit.
¶47. THE JUDGMENT OF THE RANKIN COUNTY CHANCERY COURT IS
AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE
APPELLANT.
KING, C.J., LEE, P.J., IRVING, BARNES, ISHEE, ROBERTS AND
MAXWELL, JJ., CONCUR. GRIFFIS, J., CONCURS IN RESULT ONLY.
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