Debra Thames v. Christopher Thames, Sr. , 2015 Miss. App. LEXIS 390 ( 2015 )

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2014-CA-00173-COA
DEBRA THAMES APPELLANT
v.
CHRISTOPHER THAMES, SR. APPELLEE
DATE OF JUDGMENT: 01/10/2014
TRIAL JUDGE: HON. DAN H. FAIRLY
COURT FROM WHICH APPEALED: RANKIN COUNTY CHANCERY COURT
ATTORNEY FOR APPELLANT: TAMEKIA ROCHELLE GOLIDAY
ATTORNEY FOR APPELLEE: TRACY STIDHAM STEEN
NATURE OF THE CASE: CIVIL - DOMESTIC RELATIONS
TRIAL COURT DISPOSITION: GRANTED AN IRRECONCILABLE-
DIFFERENCES DIVORCE AND AWARDED
JOINT PHYSICAL AND LEGAL CUSTODY
OF THE PARTIES’ MINOR CHILD
DISPOSITION: REVERSED AND REMANDED: 07/28/2015
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
EN BANC.
LEE, C.J., FOR THE COURT:
¶1. This appeal arises from an initial custody determination. Finding the custody
arrangement to be impractical, we reverse the judgment of the Rankin County Chancery
Court and remand the case for further proceedings as discussed below.
FACTS AND PROCEDURAL HISTORY
¶2. Debra Thames and Christopher Thames Sr. were married on May 10, 2008. On
January 24, 2012, their daughter, Sofia Ocie Thames, was born. The Thameses lived
together as a family in Brandon, Mississippi, until January 30, 2013, when Debra moved to
San Antonio, Texas, taking their daughter with her.
¶3. On February 15, 2013, Christopher filed for divorce alleging two fault-based grounds
or otherwise asking the Rankin County Chancery Court to grant an irreconcilable-differences
divorce. On May 2, 2013, a temporary hearing was held. A temporary order resulting
therefrom was entered nunc pro tunc on December 12, 2013. The temporary order awarded
Debra physical and legal custody of Sofia and awarded Christopher alternating monthly
visitation.
¶4. On September 16, 2013, the day of the final hearing, the parties filed a joint motion
and consent to trial and divorce on the ground of irreconcilable differences, and agreed to
submit to the chancellor the issues of physical and legal custody of Sofia, visitation rights of
the non-custodial parent, and child support. This joint motion was granted the same day. At
the final hearing, the chancellor conducted an Albright1 analysis, finding the factors weighed
equally for both parents. A final judgment was entered on January 10, 2014, granting the
parties joint legal and physical custody, with physical custody to alternate back and forth
between the parents on a monthly basis until Sofia starts five-year-old kindergarten.
¶5. Debra now appeals, asserting that (1) the chancellor erred in failing to administer
complete relief as to every portion of the controversy, and (2) the custody arrangement is
impractical.
STANDARD OF REVIEW
¶6. In domestic-relations cases, we “will not disturb the findings of a chancellor when
1
Albright v. Albright, 437 So. 2d 1003 (Miss. 1983).
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supported by substantial evidence unless the chancellor abused his discretion, was manifestly
wrong [or] clearly erroneous[,] or [applied] an erroneous legal standard[.]” In re Dissolution
of Marriage of Wood, 35 So. 3d 507, 512 (¶8) (Miss. 2010). We review questions of law de
novo. Id.DISCUSSION
I. ADMINISTRATION OF COMPLETE RELIEF
¶7. Debra argues that the chancellor erred in failing to administer complete relief as to
every portion of the controversy, violating the maxim that “equity delights to do justice
completely and not by halves[.]” Humble Oil & Refining Co. v. Rankin, 207 Miss. 402, 412,
42 So. 2d 414, 417 (1949). She argues that the chancellor erred when he failed to decide
who would have sole custody of Sofia when she started five-year-old kindergarten. This
issue was addressed in a jurisdictional context in Crider v. Crider, 905 So. 2d 706, 707-08
(¶¶3-5) (Miss. Ct. App. 2004), which was reversed on other grounds. This Court stated that
“to evaluate the issues presented on appeal, the case must be properly in our jurisdiction.
Only a final order in which no issues remain to be resolved may be appealed.” Id. at 707
(¶3).
¶8. In Crider, “the chancellor awarded joint legal and physical custody of the child until
June 2005, which was the start of the summer before the [child] would enter school. The
chancellor directed that the matter be set for review in June 2005 to reevaluate custody.” Id.
at (¶2). After noting that “[d]omestic judgments are frequently the subject of additional
proceedings” and that “[m]odifications are constantly sought,” this Court held that formal
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recognition of the need to revisit custody at a specific time in the future did not prevent the
2003 judgment from being final. Id. at 707-08 (¶¶4-5) (citation and quotations omitted).
This Court stated that “[w]hether stated explicitly as here or left unstated, custody orders may
be modified.” Id. at 708 (¶5).
¶9. In this case, the chancellor laid out a detailed visitation schedule, which began
October 5, 2013 and ends February 4, 2017. Save for December and January, where one
parent has physical custody of Sofia for two months depending on the year, physical custody
alternates back and forth between the parents on a monthly basis until Sofia starts five-year-
old kindergarten. The order states:
The parties will alternate this visitation schedule until further Order of the
Court. This schedule will remain in effect until such time as either the State
of Mississippi or the State of Texas, whichever is earlier, requires mandatory
attendance in five (5) year old kindergarten when the child turns five (5)
before the month of September.
During the final hearing, the chancellor gave the parties the option of agreeing to a review
hearing in January 2017 or making the judgment final and appealable according to Rule 54(b)
of the Mississippi Rules of Civil Procedure. The judgment was not certified as a Rule 54(b)
final judgment and any agreement to set a hearing to review custody in January 2017 was not
included in the record.
¶10. While Debra does not argue that the judgment was not final and appealable, the
underlying issue is the same, and that is whether any issues remain to be resolved. Following
the reasoning in Crider, we find that the judgment was final, and it disposed of all of the
issues until Sofia starts five-year-old kindergarten. While the chancellor in this case did not
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specify the exact month and year in the final judgment as did the chancellor in Crider, the
visitation schedule ends in February 20172, and the chancellor stated that the order is to
remain in effect until further order of the court and only until Sofia starts five-year-old
kindergarten. Furthermore, the chancellor gave the parties the option of agreeing to a future
hearing to review custody or making the judgment a Rule 54(b) judgment. Either way, a
future hearing was to be held to revisit custody. Formal recognition of the need to revisit
custody before Sofia starts five-year-old kindergarten did not prevent the judgment from
being final.
II. IMPRACTICALITY
¶11. “[T]he polestar consideration in child[-]custody cases is the best interest and welfare
of the child.” Albright v. Albright, 437 So. 2d 1003, 1005 (Miss. 1983). To that end,
chancellors must conduct an Albright analysis, weighing each of the applicable factors. Id.Where both parties consent in writing to submit the issue of custody to the chancellor for his
determination, and the chancellor finds both parents fit, joint custody may be awarded.
Crider v. Crider, 904 So. 2d 142, 143-49 (¶¶3-17) (Miss. 2005). “[J]oint custody should not
be awarded[, however,] where it is impractical or burdensome to the children.” Jackson v.
Jackson, 82 So. 3d 644, 646 (¶9) (Miss. Ct. App. 2011). The parents must also be capable
of cooperating if joint custody is to be awarded. Crider, 904 So. 2d at 148 (¶16).
¶12. Debra does not attack the soundness of the chancellor’s Albright analysis, but argues
that the chancellor failed to consider whether the joint-custody arrangement was practical due
2
Sofia turns five in January 2017.
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to the distance Sofia had to travel every month. Debra also claims the chancellor failed to
consider whether the parties were capable of cooperating. Because we find that the joint-
custody arrangement is impractical, we decline to address whether the parties are capable of
cooperating.
¶13. “There have been prior decisions regarding initial joint-custody arrangements that
became impractical after one or both parents moved.” Massey v. Huggins, 799 So. 2d 902,
906 (¶11) (Miss. Ct. App. 2001) (citations omitted). In McRee v. McRee, 723 So. 2d 1217,
1218-19 (¶4) (Miss. Ct. App. 1998), this Court affirmed the chancellor’s decision to modify
custody based on the father’s relocation to Houston, Texas. The chancellor found that “[t]he
joint-custody agreement, which provided for the child to stay with each parent on alternating
months, was impractical once [the father] moved to Texas.” Id. at 1219 (¶6). He found that
a modification was inevitable and that the question to be answered was who was to have
primary custody. Id. The parties to that suit agreed. Id. In Massey, 799 So. 2d at 905-06
(¶¶6-13), this Court agreed with the chancellor that joint physical custody was impractical
where one party moved to Long Beach, Mississippi, and the other to Petal, Mississippi. The
chancellor was quoted as saying, “as I view the situation, the biggest change that has
occurred, as far as these parties are concerned, is that their joint[-]physical[-]custody
arrangements are not possible now because they live in different areas of the state.” Id. at
906 (¶13). He stated that there would “have to be a change of [physical] custody” and that
the issue was “whether it’s going to be with the mother or father.” Id. The initial custody
arrangement in Massey had four exchanges between the parents each week, and both parents
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sought sole custody upon modification. Id. at 905-06 (¶¶5-13).
¶14. There are also prior decisions that discourage the use of alternating custody
arrangements. Case v. Stolpe, 300 So. 2d 802, 804 (Miss. 1974); Brocato v. Walker, 220 So.
2d 340, 343 (Miss. 1969); Daniel v. Daniel, 770 So. 2d 562, 567 (¶15) (Miss. Ct. App. 2000).
See also Lackey v. Fuller, 755 So. 2d 1083, 1088-89 (¶¶27-29) (Miss. 2000). In Daniel, the
child was alternating custody back and forth between Arkansas and Mississippi every two
weeks. Daniel, 770 So. 2d at 563-66 (¶¶2-14). This Court, noting that this type of
arrangement was to be discouraged, declined to make any changes because the child was
nearing the age of five-year-old kindergarten, at which time the father was to exercise
primary physical custody. Id. at 563-67 (¶¶2-15). We declined to interrupt what had become
the child’s regular routine. Id. at 567 (¶15).
¶15. After conducting an Albright analysis, the chancellor in this case found that joint
custody was in Sofia’s best interest, irrespective of the distance she would have to travel to
spend time with each parent. We do not agree. Given the distance between San Antonio,
Texas, and Brandon, Mississippi, a monthly alternating custody arrangement is not in Sofia’s
best interest. The distance between San Antonio and Brandon renders this custody
arrangement impractical. In McRee, we agreed with the chancellor that an alternating
monthly custody arrangement that shifted the child between Houston, Texas, and Jackson,
Mississippi was impractical. See Massey, 799 So. 2d at 906 (¶13). The distance between
San Antonio and Brandon is even greater. We, therefore, reverse the chancellor’s judgment
and remand this case for a reconsideration of the Albright factors and a determination of who
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is to have primary custody of Sofia.
¶16. THE JUDGMENT OF THE RANKIN COUNTY CHANCERY COURT IS
REVERSED, AND THIS CASE IS REMANDED FOR FURTHER PROCEEDINGS
CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE
ASSESSED TO THE APPELLEE.
IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, CARLTON, MAXWELL,
FAIR AND JAMES, JJ., CONCUR. WILSON, J., NOT PARTICIPATING.
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