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


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  •         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).
    2
    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
    3
    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
    4
    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.
    5
    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
    6
    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
    7
    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.
    8
    

Document Info

Docket Number: 2014-CA-00173-COA

Citation Numbers: 170 So. 3d 1264, 2015 Miss. App. LEXIS 390

Judges: Lee, Irving, Griffis, Barnes, Ishee, Carlton, Maxwell, Fair, James, Wilson

Filed Date: 7/28/2015

Precedential Status: Precedential

Modified Date: 10/19/2024