Maegan White v. Christopher White , 2015 Miss. App. LEXIS 335 ( 2015 )

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2013-CA-02134-COA
MAEGAN WHITE A/K/A MEAGAN WHITE APPELLANT
A/K/A MAEGAN LEE WHITE
v.
CHRISTOPHER WHITE A/K/A CHRISTOPHER APPELLEE
LEE WHITE
DATE OF JUDGMENT: 11/12/2013
TRIAL JUDGE: HON. DOROTHY WINSTON COLOM
COURT FROM WHICH APPEALED: WEBSTER COUNTY CHANCERY COURT
ATTORNEYS FOR APPELLANT: ROBBIE E. WILLIS
JAMES P. VANCE
ATTORNEY FOR APPELLEE: CARRIE A. JOURDAN
NATURE OF THE CASE: CIVIL - CUSTODY
TRIAL COURT DISPOSITION: CUSTODY OF MINOR CHILDREN
AWARDED TO APPELLEE
DISPOSITION: AFFIRMED - 06/16/2015
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
BEFORE LEE, C.J., ROBERTS AND JAMES, JJ.
ROBERTS, J., FOR THE COURT:
¶1. The Webster County Chancery Court granted Maegan Lee White (“Maegan”) and
Christopher Lee White (“C.L.”) an irreconcilable-differences divorce. The parties submitted
all child-related issues to the court, including child custody and visitation. The court
awarded C.L. sole custody of their two minor children and gave Maegan visitation rights.
Maegan timely appealed. Finding no error, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2. Maegan and C.L. married on July 1, 2006, in Starkville, Mississippi. Their son,
Garrett, was born on January 13, 2007. The couple’s daughter, Harley, was born December
26, 2007. Maegan filed for divorce on February 21, 2012, on the grounds of habitual cruel
and inhuman treatment, or in the alternative, irreconcilable differences. She also sought
permanent custody of Garrett and Harley. C.L. filed his answer and a counter-complaint for
divorce on May 9, 2012, citing adultery, habitual cruel and inhuman treatment, or in the
alternative, irreconcilable differences. He also sought permanent custody of the two children.
A temporary order was entered on June 4, 2012, granting Maegan temporary custody of the
children and awarding C.L. visitation every other weekend.
¶3. On or about September 11, 2012, Maegan filed a motion to suspend visitation,
alleging that C.L. had inappropriately touched Harley. As a result, the chancellor suspended
C.L.’s visitation and appointed a guardian ad litem (GAL) to investigate. Once the GAL
filed her report, C.L. filed a motion to reinstate visitation on October 12, 2012. On
November 20, 2012, the chancellor reinstated C.L.’s visitation but ordered that all visits be
supervised by the Webster County Department of Human Services. In April 2013, the court
reinstated C.L.’s full visitation rights. Thereafter, on April 2, 2013, the parties consented,
in writing, to a divorce on the ground of irreconcilable differences, submitting the following
issues to the court: child custody and visitation, child support, children’s health insurance and
health-related bills, children’s school and extracurricular expenses, claiming the children on
tax returns, all other child-related matters, division of personal property, and taxes. A trial
was held June 18-19, 2013.
¶4. At trial, the following facts were presented: Maegan is twenty-eight years old and has
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been a registered nurse since 2007. She earned her nursing degree while married to C.L.
Maegan has worked with five different companies in various capacities since beginning her
career. C.L. is forty years old and owns a body shop next door to the marital home. Until
the separation, Maegan, C.L., and their two children lived together in Webster County. C.L.
worked at his body shop for the entirety of the marriage, while Maegan had to travel from
Webster County in order to attend school and later for work. While both parties were at
school or work, Maegan’s family members often helped watch the children until May 2008,
when both children began attending daycare. While C.L.’s job was consistently near the
home and provided “normal” working hours, Maegan’s career as a nurse sometimes required
her to work night shifts and required significant travel. During this time, parenting duties
were equal, although sometimes aided by Maegan’s family members.
¶5. When the parties separated in June 2011, Maegan moved with the children to
Oktibbeha County, which was near to her mother and her job at Mississippi Home Care in
Starkville. Initially, C.L. and Maegan split equal time with the children, rotating every two
days as well as three-day weekends. In August 2011, Maegan enrolled Garrett and Harley
in preschool in Louisville, which was approximately fifteen minutes from their home in
Sturgis. The children adjusted well to their new school, and Harley began speech therapy.
In February 2012, Maegan moved, along with the children, to Caledonia. Here, Maegan
enrolled the children in a pre-kindergarten program at Caledonia Elementary. In June 2012,
the court awarded Maegan temporary full custody and gave C.L. visitation rights for every
other weekend and the month of July 2012.
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¶6. In August 2012, Maegan filed an emergency motion with the court, alleging that C.L.
had inappropriately touched Harley. Maegan testified at trial that in August 2012, when the
children returned after a visit with C.L., Maegan discovered blood in Harley’s underwear and
an abscess on her upper thigh. Two weeks later, Harley had a “fit” when she had to return
to C.L.’s, including becoming physically ill, screaming, and crying. Soon after, Harley
allegedly disclosed to Maegan that C.L. had inappropriately touched her. After Maegan filed
her emergency motion presenting these allegations, the court revoked C.L.’s visitation rights
and an investigation commenced. Harley was interviewed by police, by the Lowndes County
Department of Human Services, and the court-appointed GAL. The GAL’s report later stated
that Harley had told the GAL that her mother told her she could avoid returning to C.L.’s if
she told people he had touched her private parts. Maegan denied this at trial. The allegations
against C.L. were found to be unsubstantiated, and his visitation rights were restored.
¶7. In December 2012, Maegan resigned from her job and moved from Caledonia back
to Sturgis. She began a new job at Rolling Hills, a healthcare facility in Starkville, and the
children were enrolled at the Louisville Public Schools. Roughly two months after beginning
employment with Rolling Hills, Maegan began working at Diamond Grove in Louisville.
Two weeks after being hired, Maegan was terminated. She testified at trial it was because
her drug screen tested positive for Adderall, and although she had a prescription, the facility
said they could not take a risk of having an employee with access to amphetamines at their
facility, where many patients had the same type of medicine. At the time of trial, Maegan
had secured employment as a home health nurse in Louisville. Maegan testified that the
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children, regardless of where they were living or where their mother worked, had a schedule
that they adhered to. If she was ever “on call,” there were always friends or family members
nearby who would be able to temporarily care for the children.
¶8. Additionally, Maegan testified generally that she and the children attended church
regularly, and that she did not consume alcohol regularly or abuse drugs. She denied that
anyone who cared for her children drank to excess or had any problems with alcohol. She
also denied dating anyone during her marriage and denied having sexual relationships with
anyone in front of her children. Maegan claimed that both prior to and after the separation,
C.L. neglected Harley. She testified that he often took Garrett hunting and fishing, but left
Harley at home. Even when both children were home, he had little to do with Harley.
Maegan’s mother and grandmother both testified similarly about C.L.’s involvement with
Harley. Both women also testified about Maegan’s parenting skills and their willingness to
help care for the children whenever needed.
¶9. Additional witnesses were called to testify about Maegan, including Taryn Shurden,
a friend and coworker. Shurden’s testimony called into question the veracity of Maegan’s
statements that she did not drink or date during or after the separation. Shurden testified that
she had seen Maegan drink alcohol socially and said it would be untrue for someone to say
she never drank. Shurden also testified that she did not believe Maegan to have a problem
with alcohol; however, Maegan had confided concerns about her own mother’s drinking.
Finally, Shurden testified that she knew of two prior relationships Maegan had both during
the marriage and after the separation. Jimmy Owens, the human-resources director at
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Diamond Grove, where Maegan worked for a very brief time, also testified. Owens denied
Maegan’s account of her time at Diamond Grove. He stated that after Maegan’s drug screen
came back positive for amphetamines, he tried to get in touch with her about providing a
valid prescription. She was unable or unwilling to do so and never contacted him again. She
was ultimately terminated for absenteeism.
¶10. C.L.’s testimony obviously differed in many respects from Maegan’s. He testified that
he had lived in the marital home prior to the marriage, and he still lived there post-separation.
His business had been continuously located less than a mile away from his home, and he
worked there generally from 8 a.m. to 5 p.m., Monday through Friday. C.L. stated that he
had owned this business since 1999, and because he was the boss, he had flexibility to come
and go as needed. C.L. admitted, like Maegan, that they shared parenting responsibilities
while married, but denied that she did the bulk of the work and that he neglected Harley.
C.L. did not deny that Maegan, as an offshoot of her career as a nurse, was primarily
responsible and more knowledgeable about the children’s heath needs. C.L. testified that he
had a wonderful relationship with both children, and he showed no favoritism to Garrett
because he was a boy. C.L. admitted he took Garrett hunting and fishing more often than
Harley, but only because Garrett was a boy and was older. C.L. noted that both children had
some confusion over the separation at first, but that even despite the allegations made against
him, he still had a healthy relationship with both children.
¶11. C.L. testified that he planned to stay in his current home for the foreseeable future.
He said that both children would be able to be enrolled in Webster County schools, should
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he be given custody, and they could remain there until they graduated from high school.
Despite the problems between him and Maegan, C.L. said he would be more than happy to
have Maegan involved in the children’s school life and extracurricular activities. Contrary
to Maegan’s testimony, C.L. denied refusing to participate in Harley’s speech therapy. He
testified that he did not really know that she was in speech therapy, and he did not believe
it was necessary. However, he did notice a marked improvement in her speech and would
continue to assist in therapy as needed. C.L. acknowledged that his family was not as
involved with the children as Maegan’s was, but he appreciated the help her family was able
to provide.
¶12. C.L. testified that he was, at the time of trial, in a relationship with a woman named
Jennifer Smith. He said that he sometimes spent the night with Jennifer when he did not
have visitation with his children, but that Jennifer had never stayed at his home when Garrett
and Harley were there. Smith testified similarly. C.L. testified that he did not want to push
his children into his new relationship with Smith, and he felt it was important for them not
to see him stay with Smith because he was still married to their mother. C.L. testified about
the importance of morals and stability for his children, both of which he believed he could
provide.
¶13. The final witness testimony came from the GAL, who had already submitted her
report to the court. In her report and her testimony, the GAL recommended that custody be
given to C.L., based off the stability he could provide to the children. She did not note any
specific detrimental effects on Garrett and Hartley from the multiple moves they had endured
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since the separation, but she did believe that switching schools could be difficult for children.
She mentioned that her opinion of C.L.’s stability and truthfulness had strengthened during
the trial. However, the GAL’s opinion of Maegan’s truthfulness somewhat declined during
her investigation and the trial. Specifically, the GAL testified that she believed the
molestation allegations were created by Maegan to further her cause for full custody. Her
report was admitted as an exhibit. In her final recommendation, the GAL noted:
The Court is confronted with the dilemma in which two loving, capable
parents both want custody of their minor children. The father offers more
stability to the children. . . . Maegan, on the other hand, has not exhibited much
stability. . . . I believe it is in the best interest of the children to stay in one area
and develop a home community, which seems to have already been established
in Mathiston.
Maegan and C.L. both have great parenting skills. . . . Garrett and
Harley would be in good hands with either parent. However, I believe that the
[f]ather offers the most stability to the children and it would be in their best
interest if their physical custody was placed with him.
¶14. The chancellor ultimately agreed with the GAL. In her order, the chancellor weighed
the Albright factors, keeping in mind the polestar consideration of the best interest of the
children. She found four factors to be in C.L.’s favor; one in Maegan’s favor; two in neither
parent’s favor; and four to be in both parents’ favor.1 The court also noted that it questioned
Maegan’s credibility, as she was untruthful about dating other people and the termination of
her job at Diamond Grove. The chancellor was unable to ignore the false allegations of
molestation made against C.L., noting that Harley told the GAL that Maegan told her to say
her father had touched her. Finally, the chancellor noted that all of these circumstances—the
1
In her opinion, the chancellor did not address the preferences of the children,
finding them to be inapplicable. Neither party challenges this finding.
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Albright factors, the credibility of the witnesses, and the GAL’s report—led her to find that
C.L. should be awarded custody of Garrett and Harley.
¶15. Maegan timely appealed and raised two issues:
I. Whether the chancellor is required to consider the propriety of joint
custody in an irreconcilable-differences divorce where neither party
requests joint custody.
II. Whether the chancellor erred in her application of the Albright factors.
STANDARD OF REVIEW
¶16. “[T]he standard of review in child[-]custody cases is quite limited. A chancellor must
be manifestly wrong [or] clearly erroneous, or apply an erroneous legal standard in order for
[the appellate court] to reverse.” Johnson v. Gray, 859 So. 2d 1006, 1012 (¶31) (Miss. 2003)
(citing Mabus v. Mabus, 847 so 2d 815, 818 (¶8) (Miss. 2003)). We defer to a chancellor's
findings of fact; however, her conclusions about the law are reviewed de novo. Irving v.
Irving, 67 So. 3d 776, 778 (¶11) (Miss. 2011).
¶17. Additionally, our polestar consideration in child-custody cases must be the best
interest of the child. Hall v. Hall, 134 So. 3d 822, 825 (¶8) (Miss. Ct. App. 2014). “So long
as there is substantial evidence in the record that, if found credible by the chancellor, would
provide support for the chancellor’s decision, this Court may not intercede simply to
substitute our collective opinion for that of the chancellor.” Hammers v. Hammers, 890 So.
2d 944, 950 (¶14) (Miss. Ct. App. 2004) (citing Bower v. Bower, 758 So. 2d 405, 412 (¶33)
(Miss. 2000)).
ANALYSIS
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I. Joint-Custody Requirement
¶18. Maegan argues that the chancellor failed to consider joint custody at all in her decison
to grant C.L. custody of Garrett and Harley, and this failure is “manifestly wrong, clearly
erroneous, and . . . based on an erroneous legal standard.” Maegan cites Crider v. Crider,
904 So. 2d 142 (Miss. 2005), and Clark v. Clark, 126 So. 3d 122 (Miss. Ct. App. 2013),
arguing that these cases require a chancellor to consider joint custody, even when neither
party has asked the court to consider joint custody. Maegan argues that because she and C.L.
both applied to the court for a determination of custody issues, the Mississippi Supreme
Court’s interpretation of the phrase “upon application of both parties” in Crider requires the
court to consider whether joint custody is in the best interest of the children. We cannot
agree.
¶19. Maegan’s interpretation of both Clark and Crider is faulty. In Clark, this Court
reversed and remanded a chancellor’s decision to award sole physical custody to the mother,
requiring the court to consider the propriety of joint custody on remand. Both parents had
requested sole physical custody of their child and submitted the issue to the court for
determination. After hearing testimony of the parties, the chancellor had noted: “[In these]
kinds of cases . . . it’s hard . . . to give the child to one or the other because everything here
would support that. . . . [H]ow can you choose one over the other, but [this court] has to.”
Clark, 126 So. 3d at 124-25 (¶10). In reversing the chancery court’s judgment, this Court
noted, “Based on our reading of the transcript, it appears that the chancery court may have
concluded . . . that it was required to order custody to one parent regardless of whether joint
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physical custody was in the best interest of [the child].” Id. at 125 (¶12). Noting our concern
that the chancery court had incorrectly concluded it was not authorized to consider joint
custody, as neither party had requested it, we reversed and remanded for further
consideration.
¶20. Similarly, in Crider, parents in an irreconcilable-differences divorce each requested
sole custody of their child. The parents submitted the issue of custody to the court for
determination. After considering testimony presented and conducting an Albright analysis,
the chancellor found that, even though neither parent requested joint custody, it was in the
child’s best interest. Thus, she awarded joint custody to the parents for a two-year period.
The mother appealed, noting that Mississippi Code Annotated section 93-5-24(2) (Rev.
2013)2 prohibited a chancellor from awarding joint custody unless specifically requested by
the parties. This Court agreed and reversed the chancellor’s judgment, prompting the father
to petition for certiorari with the supreme court. After a thorough analysis of the statute and
its meaning, the supreme court stated:
It is logical and reasonable that “application of both parties” exists when both
parties consent to allowing the court to determine custody. The fact that the
parties request that the court determine which parent is to receive “primary
custody” does not alter this. The parties are allowing the court to determine
what form of custody is in the best interest of the child. If joint custody is
determined to be in the best interest of the child using court-specified factors,
i.e., the Albright factors, the parties should not be able to prohibit this by the
wording of the consent.
Crider, 904 So. 2d at 147 (¶12). The supreme court further noted that the chancellor is in the
2
Section 93-5-24(2) reads: “Joint custody may be awarded where irreconcilable
differences is the ground for divorce, in the discretion of the court, upon application of both
parents.”
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best position to evaluate the “credibility, sincerity, capabilities and intentions of the parties,”
and that it is “incumbent upon a chancellor not to award joint custody” unless in the best
interest of the child. Id. at (¶13). The court ultimately held that “when parties consent in
writing to the court’s determination of custody, they are consenting and agreeing to that
determination and this meets the statutory directive of ‘joint application’ in [section]
93-5-24(2).” Id. at 148 (¶15). Finally, the court affirmed the chancellor’s judgment and
noted that a “chancellor may award joint custody in an [irreconcilable-differences] divorce,
when the parties request the court to determine custody.” Id. at 148-49 (¶17) (emphasis
added).
¶21. Maegan incorrectly interprets both Clark and Crider to require a chancellor to
consider joint custody when faced with an irreconcilable-differences divorce. The chancellor
“is bound to consider the child’s best interest above all else.” Riley v. Doerner, 677 So. 2d
740, 744 (Miss. 1996). In both Clark and Crider, the chancellors found joint custody to be
in the child’s best interest. In Clark, the chancellor incorrectly awarded sole custody to one
parent despite the finding that joint custody was the child’s best interest; in Crider, the
chancellor awarded joint custody because that was in the child’s best interest, and the
supreme court affirmed that award. Crider and its progeny allow—not require—a chancellor
to award joint custody when in the best interest of the child. In the present case, the
chancellor found that it was in Garrett and Harley’s best interest to give custody to C.L.
Though the chancellor’s order makes no mention of joint custody, he is not required to do
so. The chancellor’s primary duty is to consider the best interests of the children and make
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a determination of custody based on that concern. There is no evidence that the chancellor
disregarded the children’s best interests when determining custody. The chancellor’s custody
award to C.L. was not error.
II. Albright Analysis
¶22. The polestar consideration in child-custody cases is the best interest of the child.
Albright v. Albright, 437 So. 2d 1003, 1005 (Miss. 1983). The Albright factors are as
follows: (1) age, health, and sex of the child; (2) a determination of the parent who had the
continuity of care prior to the separation; (3) which parent has the best parenting skills and
which parent has the willingness and capacity to provide primary child care; (4) the
employment of the parent and responsibilities of that employment; (5) the physical and
mental health and age of the parents; (6) the emotional ties of parent and child; (7) the 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) the stability
of the home environment and employment of each parent; and (11) other factors relevant to
the parent-child relationship. Id.
¶23. “In order to determine whether or not the chancellor was manifestly wrong, clearly
erroneous or abused his discretion in applying the Albright factors, we review the evidence
and testimony presented at trial under each factor to ensure his ruling was supported by the
record.” Hollon v. Hollon, 784 So. 2d 943, 947 (¶13) (Miss. 2001). However, analysis under
Albright is “not a mathematical equation.” Hall, 134 So. 3d at 827 (¶19) (citing Lee v. Lee,
798 So. 2d 1284, 1288 (¶15) (Miss. 2001)). Additionally, “all the [Albright] factors are
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important, but the chancellor has the ultimate discretion to weigh the evidence the way he
sees fit.” Johnson, 859 So. 2d at 1013-14 (¶36). “So long as there is substantial evidence
in the record that, if found credible by the chancellor, would provide support for the
chancellor’s decision, this Court may not intercede simply to substitute our collective opinion
for that of the chancellor.” Hammers, 890 So. 2d at 950 (¶14) (citing Bower, 758 So. 2d at
412 (¶33)). The Court must defer to the chancellor’s findings under Albright if they are
supported by substantial evidence and cannot reweigh the importance of the evidence. Hall,
134 So. 3d at 828 (¶21) (citing Carter v. Carter, 735 So. 2d 1109, 1114 (¶18) (Miss. Ct. App.
1999)).
¶24. Maegan alleges that the chancellor’s findings under Albright were clearly erroneous
“because substantial, credible evidence supported alternative findings that would favor either
Maegan or both parents[.]” Of the eleven factors the chancellor considered, Maegan claims
the chancellor erred in her analysis of nine factors. The chancellor found that four factors
favored C.L.; one factor favored Maegan; four factors favored both parents; and two factors
favored neither parent. After thoroughly reviewing the record, including the parties’ briefs,3
3
C.L.’s brief to the Court barely addresses the Albright factors or Maegan’s claims,
other than to assert that the chancellor’s findings of fact should be given deference. The
entirety of C.L.’s argument in support of the chancellor’s findings scarcely covers a page.
In her reply brief, Maegan urges the Court to hold that C.L. has waived his argument as to
the merits of the case because he failed to completely brief his argument and cited only basic
principles of law. We decline to do so; moreover, in N.E. v. L.H., this Court noted that
“when matters on appeal touch the welfare of a minor child, then regardless of whether a
party filed a brief, [we] will ‘reach the merits of the issues in [the] appeal.’” N.E. v. L.H.,
761 So. 2d 956, 962 (¶14) (Miss. Ct. App. 2000) (quoting Allred v. Allred, 735 So. 2d 1064
(¶9) (Miss. Ct. App. 1999)). Though his argument is brief, C.L. did file a responsive brief
and did cite support for his factual argument. Although we generally desire parties’ briefs
to provide an in-depth, yet concise, analysis, C.L.’s brief does not amount to a waiver.
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the trial transcript, and other documents, we cannot say the chancellor’s decision to award
custody to C.L. was manifestly wrong or clearly erroneous.
A. The Age, Health, and Sex of the Child
¶25. Maegan claims that the chancellor erred in her finding that “the age of the children
favors neither parent” because the chancellor failed to analyze or explain that finding. She
points to this Court’s holding in Fulk v. Fulk, 827 So. 2d 736 (Miss. Ct. App. 2002), to
support her argument that the chancellor’s brief statement on the age of the children is
insufficient. In Fulk, this Court reversed and remanded a chancellor’s award of custody to
the father. The chancellor in that case issued a bench ruling and did not consider all of the
Albright factors. Additionally, all of the factors she did examine were in the father’s favor,
and the chancellor offered no explanation as to how she arrived at her conclusions. We
remanded for her failure to discuss and consider each factor. Id. at 740 (¶13).
¶26. The present case significantly differs from Fulk. In the present case, the chancellor
did discuss each of the Albright factors. The chancellor provided some explanation for each
factor with the exception of the age of the children. The chancellor found that the children’s
ages favored neither parent, and she provided no discussion about her finding. However, this
Furthermore, the cases Maegan cites to in support of her request both involved the
appellant’s failure to provide authority in support of his arguments. See Jefferson v. State,
138 So. 3d 263, 265 (¶8) (Miss. Ct. App. 2014); Taylor v. Kennedy, 914 So. 2d 1260, 1262
(¶¶3-4) (Miss. Ct. App. 2005).
Additionally, though C.L.’s brief only briefly discusses the application of the Albright
factors, the bulk of his brief is dedicated to the argument that Maegan waived any error by
not filing a post-trial motion to the chancellor. C.L. cites Mississippi Rule of Civil
Procedure 59(e) to support his argument. Rule 59 is inapplicable here. The chancellor’s
judgment is final and appealable; there is no requirement for post-judgment motions.
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one instance alone is not sufficient to rule that the chancellor’s analysis was manifestly
erroneous. In Fulk, the chancellor did not discuss several factors at all, and the factors she
did discuss were supported by no explanation or rationale. It was necessary for this Court
to reverse and remand in Fulk as we could not review the chancellor’s analysis where it did
not exist. Here, the chancellor has provided analysis. It is true that some factors received
more analysis than others, but some factors required more discussion.
¶27. However, Maegan claims that the age factor required a discussion of the tender-years
doctrine. She argues that the doctrine, though weakened, still gives a presumption that a
mother is generally better suited to raise a young child.4 At the time of trial, Garrett was six
and Harley was five. The supreme court has ruled that “a child is no longer of tender years
when that child can be equally cared for by persons other than the mother.” Mercier v.
Mercier, 717 So. 2d 304, 307 (¶15) (Miss. 1998). While the tender-years doctrine was once
often determinative of custody issues, it is now only a presumption and one of several factors
to be considered. Id. Sufficient evidence was produced at trial to show that both parents
were equally capable of caring for both children. We cannot say that the chancellor’s finding
regarding age or her failure to address the tender-age doctrine was manifestly erroneous.
¶28. Maegan does not dispute the chancellor’s findings that Garrett’s sex favored C.L. and
Harley’s sex favored Maegan. She does dispute, however, that Garrett’s health weighs in
C.L.’s favor. Much evidence was presented at trial regarding Maegan’s career as a nurse,
Harley’s medical issues, and Garrett’s allergies. Both parents testified and were cross-
4
Sobieske v. Preslar, 755 So. 2d 410, 413 (¶10) (Miss. 2000).
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examined on these issues. Though C.L. testified that during the marriage, Maegan took care
of the majority of the children’s healthcare due to her career, he testified he was fully able
to care for their health needs alone. He was questioned regarding Harley’s dog bite and the
treatment it received. He was also questioned regarding Garrett’s allergy to peanuts. The
chancellor is in the best position to hear testimony and weigh its credibility. We will not
disturb the chancellor’s findings where there is sufficient evidence to support her findings.
Hall, 134 So. 3d at 828 (¶21).
B. Continuity of Care
¶29. Maegan claims the chancellor’s finding that continuity of care favored both parents
was erroneous. In her opinion, the chancellor noted that Maegan was the primary caretaker
prior to the separation but that C.L. was the sole caretaker of the children when Maegan
worked nights. Maegan does not dispute that C.L. has been continually involved in the care
of the children. Maegan claims that even post-separation, she was the primary caretaker, as
she took the children to school, got them ready for school, and bathed them—even when C.L.
had them on school nights. However, C.L. disputed Maegan’s testimony regarding her role
as sole caretaker. He testified that the parenting duties were split fairly evenly pre-
separation. He denied that the children were ever unclean or dirty when he returned them to
Maegan’s care. We find no manifest error with the chancellor’s findings. We will not
disturb her findings where sufficient evidence exists in support of those findings. Id.
C. Parenting Skills
¶30. Maegan does not dispute the chancellor’s finding that the parenting skills favor her.
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However, she does claim this factor should be given more weight than any other. She offers
no support for this theory. We decline to afford the parenting-skills factor more weight than
other Albright factors.
D. Willingness and Capacity to Provide Primary Care
¶31. The chancellor found that both parents were willing and able to provide primary care
for Garrett and Harley. Maegan argues that the chancellor erred because she is more capable
and willing than C.L. Maegan’s argument seems to hinge on her dedication to the children’s
healthcare and her dedication to have the children enrolled in preschool programs and
educational day care. However, C.L. testified that those things were important to him as
well. According to his testimony, his objection to the children’s enrollment at a preschool
was not because he objected to preschool; he objected to moving the children around from
school to school. Again, we decline to substitute our judgment and weighing of the evidence
for the chancellor’s. Hall, 134 So. 3d at 828 (¶21).
E. Employment of Each Parent and the Responsibilities of that Employment
¶32. The chancellor found that Maegan’s employment required her to rely on family
members and friends to care for the children, whereas C.L.’s job is more flexible, ultimately
favoring him. Both parents and several witnesses testified about Maegan’s reliance upon her
mother, grandmother, and friends to help watch the children and even pick them up from
school. C.L. testified that, should he be given custody, the children’s school would be less
than a mile from his home and place of business. He planned to keep his job and his home
at least long enough for both to graduate high school. On the other hand, Maegan’s
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employment had been unsteady since graduating from nursing school. She had held several
jobs, in several locations, since the separation. A few of those jobs also involved extensive
travel and the need to be “on call” and available at a moment’s notice—even in the middle
of the night. Maegan claims the chancellor’s finding this factor in C.L.’s favor was error
when this factor favors both parties. However, we find no error. We will not disturb the
chancellor’s findings where there is sufficient evidence to support them. Hall, 134 So. 3d
at 828 (¶21).
F. Physical and Mental Health of Each Parent
¶33. Neither party disputes the finding that this factor favored both parents.
G. Emotional Ties Between Parent and Child
¶34. The chancellor found that this factor favored neither parent, stating specifically: “Both
parents have strong emotional ties with the children. However, not surprisingly, Garrett is
closer to [C.L.] and Harley is closer to [Maegan].” Maegan does not dispute that statement
but instead argues that the chancellor should have found this factor to favor both parents.
She cites Lee, 798 So. 2d 1284, to support her assertion that, “[u]nless there is some clear
advantage to favoring one parent over the other, the fact that one child is closer to one parent
does not preclude a finding that each parent had a strong and binding emotional tie with both
children.” There is nothing in Lee to directly support this theory; however, simply because
the chancellor is not precluded from making a certain finding does not mean she is required
to make that finding. We find no error with the chancellor’s findings.
H. Moral Fitness of Each Parent
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¶35. Maegan argues that the chancellor erred in finding this factor to slightly favor C.L.
Testimony was presented that Maegan engaged in at least two extramarital relationships
during her marriage and had engaged in a few relationships post-separation. Maegan denies
these to be “relationships,” and says that they would be isolated incidents, should they be
true. C.L. did admit to a relationship after the separation, however. The chancellor noted
that C.L. did not spend the night with his partner when he had custody of the children,
whereas testimony suggested that Maegan had entertained overnight guests while the
children were present.
¶36. Maegan correctly asserts that marital fault should not be used as a sanction in custody
cases. Albright, 437 So. 2d at 1005. However, adultery is a factor to be considered in
evaluating moral fitness, though not given “undue weight.” Blakely v. Blakely, 88 So. 3d
798, 804-05 (¶26) (Miss. Ct. App. 2012). There is no evidence that Maegan was apportioned
any “fault” as a result of her alleged relationships. There is also no evidence that the
chancellor gave Maegan’s alleged adultery any undue weight. We will not disturb the
chancellor’s findings, as she is in the best position to give weight to the evidence presented
to her. Hall, 134 So. 3d at 828 (¶21).
I. Home, School, and Community Record of the Children
¶37. The chancellor found this factor to favor C.L. She noted that though the children had
attended several schools, they did not have a true “school record.” She also pointed out that
the children had been “uprooted” and moved to a different school in the middle of the year.
She further noted the fact that while in the Lowndes County School System, Garrett had
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eleven unexcused absences and six unexcused tardies. Additionally, the chancellor noted
that Maegan had to rely on others to pick up the children while she worked. Conversely, if
the children were with C.L., they would be at the same school probably for the rest of their
school-aged lives, and they would be much nearer their schools, making it easier on the
children to arrive on time and not have to wake so early.
¶38. Maegan argues that the chancellor erred by stating that the children had no school
record. This is of no consequence. Maegan’s argument against that statement centers on her
admirable insistence pre- and post-separation that the children attend schools. No one
disputes Maegan’s dedication to her children’s education. The fact that the chancellor
correctly or incorrectly stated the children had no school record does not reflect a reversible
error on the chancellor’s part. She sufficiently noted other evidence to support her finding.
¶39. Maegan further disputes the chancellor’s findings that it would be easier on the
children to attend school if they lived with C.L. She claims the chancellor’s findings were
unsubstantiated and thus were error. She argues that the children rose early for school
because they liked to get there early for breakfast and to socialize. She also argues that her
mother took the children to and from school because her mother worked there, not because
Maegan was unable to do it. However, the chancellor’s findings also noted that Garrett had
had an excessive number of tardies and absences from at least one of his schools. It is not
unreasonable for the chancellor to presume that the tardies stemmed from the distance
Maegan had to travel to get the children ready for school; by giving custody to C.L., who
lived mere minutes from the school, it would benefit the children.
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J. Stability of Home Environment and Employment of Each Parent
¶40. The chancellor found this factor to favor C.L., noting that Maegan “has moved with
the children several times since the separation. In addition, she changed employment for
various reasons at least three times since the separation.” Maegan argues that the chancellor
did not provide sufficient rationale and explanation for her finding that C.L. has proven he
can provide a stable home and has stable employment. She also claims that she presented
reasons for her moves and changes in employment at trial, and these reasons were always for
the benefit of her children. Additionally, Maegan states that, at the time of trial, she had
stable and reliable employment, and the chancellor should not have given so much weight
to her past employment.
¶41. Maegan argues that the chancellor’s statement that C.L.’s home and employment is
stable is “conclusory” and unsupported, but evidence presented at trial clearly supports such
a conclusion. C.L. has had the same employment since before they married; Maegan has had
several different jobs since the separation. Though Maegan argues passionately that her
moves and changes in employment were all for the benefit of the children, which no one
denies, it does not change the fact that her employment and home have not been as stable as
C.L.’s. Thus, sufficient evidence existed for the chancellor to make her finding.
K. Other Factors Relevant to the Parent-Child Relationship
¶42. In considering other relevant factors, the chancellor noted an incident where Maegan
admitted to leaving the children unattended in her car while she applied for a job. Though
Maegan protests that she was watching the car the entire time and the air conditioner was
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running, the children were frightened enough to call 911 while locked in the car. The
chancellor also stated that she “can not [sic] overlook the false allegations made by [Maegan]
regarding [C.L.] inappropriately touching Harley.” The chancellor stated that she questioned
Maegan’s credibility, noting that she had doubts about Maegan’s testimony regarding other
relationships and her employment with Diamond Grove. Finally, the chancellor noted that
the GAL found that giving C.L. custody would be in the best interests of the children.
¶43. Maegan does not dispute that leaving the children in the car was poor judgment, but
she argues that the chancellor should have factored C.L.’s poor judgment in the Albright
analysis as well. Maegan also argues that because the chancellor made no finding that the
allegations against C.L. were knowingly false, she should have considered the totality of the
circumstances surrounding the allegations. Maegan further claims that the chancellor had
found the allegations to be a “dead point” because the court ordered that no one other than
the GAL be allowed to discuss them. Thus, Maegan alleges, the chancellor’s reliance on the
GAL’s statements regarding the allegations is reversible error. She presents no support for
this theory, and we decline to afford it any merit.
L. Summary of Albright Analysis
¶44. Based on the testimony presented at trial and the GAL’s report, the chancellor was
convinced that it would be in Garrett and Harley’s best interest to be placed in C.L.’s
custody. After a thorough review of the record, we find the chancellor’s decision supported
by substantial evidence. Maegan’s contention that the chancellor erred in her Albright
analysis is without merit.
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CONCLUSION
¶45. Maegan’s claim that the chancellor erred by not considering joint custody is without
merit. Similarly, Maegan’s assertion that the chancellor’s Albright analysis was flawed also
lacks merit. Substantial evidence existed to support the chancellor’s determinations, and we
cannot say her decision was manifestly wrong or clearly erroneous. We therefore affirm.
¶46. THE JUDGMENT OF THE CHANCERY COURT OF WEBSTER COUNTY
IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE
APPELLANT.
LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, CARLTON,
MAXWELL AND FAIR, JJ., CONCUR. JAMES, J., CONCURS IN PART AND
DISSENTS IN PART WITHOUT SEPARATE WRITTEN OPINION.
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