Farra L. Cassidy Sheridan v. James P. Cassidy, Jr.

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2017-CA-00960-COA
FARRA L. (CASSIDY) SHERIDAN APPELLANT
v.
JAMES P. CASSIDY JR. APPELLEE
DATE OF JUDGMENT: 06/01/2017
TRIAL JUDGE: HON. GLENN ALDERSON
COURT FROM WHICH APPEALED: LAFAYETTE COUNTY CHANCERY
COURT
ATTORNEYS FOR APPELLANT: RICHARD SHANE MCLAUGHLIN
NICOLE H. MCLAUGHLIN
ATTORNEYS FOR APPELLEE: MARY MORGAN WHITFIELD
CHARLES J. SWAYZE JR.
NATURE OF THE CASE: CIVIL - DOMESTIC RELATIONS
DISPOSITION: AFFIRMED - 12/11/2018
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
EN BANC.
LEE, C.J., FOR THE COURT:
¶1. In this appeal, we must determine whether the chancellor abused his discretion in
modifying custody of the parties’ minor children. Finding no error, we affirm.
PROCEDURAL HISTORY
¶2. On May 18, 2016, James Cassidy was granted a divorce from his wife, Farra (Cassidy)
Sheridan on the ground of Farra’s adultery. Pursuant to a child custody, support, and
property-settlement agreement (PSA), Farra took physical custody of the couple’s four minor
children,1 and James agreed to pay rehabilitative alimony and child support.
¶3. On July 19, 2016, Farra petitioned the Lafayette County Chancery Court for
permission to move the children to Benton, Arkansas. James countered, requesting that he
be granted custody of the children. After a hearing, the chancellor granted James’s motion
for custody modification and ordered Farra to pay child support. Farra now appeals,
asserting the following issues: (1) there was no evidence of a material change in
circumstances resulting in an adverse effect on the children; (2) the chancellor misapplied
several of the Albright2 factors; (3) the chancellor erred by not allowing their twelve-year-old
son to state a preference; and (4) the chancellor erred by refusing to allow two of the children
to testify.
FACTS
¶4. After the parties’ divorce, Farra began a relationship with Eric Sheridan. At the time,
Sheridan was married and living in Arkansas. Sheridan testified that his wife left him after
seeing text messages between him and Farra. Farra and the children drove to Arkansas
frequently to visit her family and Sheridan. Because she and the children visited Arkansas
on the weekends, the children were sometimes checked out early from school on Fridays and
were sometimes late arriving to school on Mondays, resulting in unexcused absences.
¶5. Sheridan and his wife divorced on January 10, 2017, and Farra and Sheridan married
1
At the time of the divorce, the children were eleven years old (son), nine years old
(daughter), and eight years old (twin sons). By the time of the modification hearing, all four
children were one year older.
2
Albright v. Albright, 437 So. 2d 1003, 1005 (Miss. 1983).
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on February 3, 2017. Farra admitted that prior to her marriage to Sheridan, she spent
multiple nights with Sheridan while the children were present. A clause in the PSA
prohibited either party from exposing the children to overnight visits from adult members of
the opposite sex. Farra had been prescribed three medications that she took regularly—two
antidepressants and one muscle relaxer. She testified that she was also prescribed Trazodone
during the summer of 2016 to help her sleep. Farra further admitted to drinking between two
to four beers per day and conceded that she should not be drinking alcohol while taking these
medications.
¶6. Natalie Byas, an employee at the local country club, testified that she observed Farra
and the children’s behavior at the club. Byas stated that Farra drank excessively and
appeared intoxicated at least six or seven times. Byas further stated that the children were
left unsupervised, which led to destructive behavior. As a result, Byas was tasked with
monitoring the children’s behavior and cleaning up after them. Byas testified that the club
considered barring the children.
¶7. James testified that his relationship with the children had changed since the divorce.
James said the children no longer told him that they loved him. James further stated that
Farra had interfered with his visitation and had refused to discuss matters involving the
children, such as extracurricular activities, medical appointments, and health insurance.
¶8. Additional facts, as necessary, are related during our discussion of the issues.
STANDARD OF REVIEW
¶9. “The standard of review in child[-]custody cases is limited. Reversal occurs only if
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a chancellor is manifestly wrong or applied an erroneous legal standard. This Court will not
reverse a chancery court’s factual findings, where there is substantial evidence in the record
supporting [them]. . . .” Floyd v. Floyd, 949 So. 2d 26, 28 (¶5) (Miss. 2007) (citation
omitted).
DISCUSSION
I. Modification
¶10. “[I]n modification cases, as in original awards of custody, we never depart from our
polestar consideration: the best interest and welfare of the child.” Johnson v. Gray, 859 So.
2d 1006, 1013 (¶33) (Miss. 2003) (internal quotation marks omitted). However, modification
issues are different from original custody determinations. In order to succeed on a request
for modification, “the non-custodial party must prove: (1) that a substantial change in
circumstances has transpired since issuance of the custody decree; (2) that this change
adversely affects the child’s welfare; and (3) that the child’s best interests mandate a change
of custody.” Mabus v. Mabus, 847 So. 2d 815, 818 (¶8) (Miss. 2003). In Riley v. Doerner,
677 So. 2d 740, 744 (Miss. 1996), the supreme court held:
[W]here a child living in a custodial environment clearly adverse to the child’s
best interest, somehow appears to remain unscarred by his or her surroundings,
the chancellor is not precluded from removing the child for placement in a
healthier environment. . . . A child’s resilience and ability to cope with
difficult circumstances should not serve to shackle the child to an unhealthy
home, especially when a healthier one beckons.
¶11. The chancellor found the following amounted to a material change in circumstances:
Farra’s involvement with a married man; her numerous violations of the PSA, including
allowing her boyfriend to spend the night while the children were present; her decision to
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abuse alcohol while taking prescription medications; her poor financial decisions; her refusal
to co-parent with James; her inciting the children to access private information on James’s
electronic devices; the children’s school absences and tardies related to weekend trips to
Arkansas; the children’s living situation while visiting Arkansas; and issues with one child’s
failure to complete school assignments. The chancellor also had concerns about Farra’s
credibility.
¶12. We cannot find that the chancellor’s findings regarding a material change in
circumstances were manifestly wrong or clearly erroneous. We now look to whether the
chancellor properly applied the Albright factors.
II. Albright Analysis
¶13. Farra argues that the chancellor erred in his Albright analysis. “Upon a finding of a
material change in circumstances, a court is to apply the Albright factors to determine which
parent should have primary custody.” Pearson v. Pearson, 11 So. 3d 178, 183 (¶14) (Miss.
Ct. App. 2009).
¶14. The factors used to determine what is in the best interest of a child with regard to
custody are: (1) the age, health, and sex of the child; (2) a determination of the parent who
has had the continuity of care prior to the separation; (3) which parent has the best parenting
skills and which has the willingness and capacity to provide primary childcare; (4) the
employment of the parents and responsibilities of that employment; (5) the physical and
mental health and age of the parents; (6) the emotional ties of the parent and child; (7) moral
fitness of the parents; (8) the home, school, and community record of the child; (9) the
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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. Albright v. Albright, 437 So. 2d 1003, 1005 (Miss. 1983). “An
Albright analysis is not a mathematical equation.” Hall v. Hall, 134 So. 3d 822, 827 (¶19)
(Miss. Ct. App. 2014). “[T]his Court cannot reweigh the evidence and must defer to the
chancellor’s findings of the facts, so long as they are supported by substantial evidence.” Id.
at 828 (¶21).
¶15. The chancellor found that the first, third, fifth, sixth, and eighth factors were neutral;
the second favored Farra; and the remaining factors favored James. In her appeal, Farra
questions the chancellor’s ruling on the following factors: physical and mental health; moral
fitness; and preference of the child.
A. Physical and Mental Health
¶16. Farra argues that the proper use of prescription medications should not count against
her. This is generally true. See Kimbrough v. Kimbrough, 76 So. 3d 715, 724-25 (¶52)
(Miss. Ct. App. 2011) (There was no evidence that mother was using poor judgment in her
use of medications and no evidence that the use impaired her ability to care for the minor
child.). But, Farra was admittedly not properly using her prescription medications. She was
drinking alcohol while on these medications. And we have upheld the chancellor’s findings
in a similar situation. See Woodham v. Woodham, 17 So. 3d 153, 158 (¶19) (Miss. Ct. App.
2009). There, the chancellor found this factor favored the father because the mother’s
decision to combine alcohol with antidepressants reflected poor judgment. Id. We cannot
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find the chancellor abused his discretion in this instance.
B. Moral Fitness
¶17. Farra also contends that the chancellor placed too much weight on her adultery in
weighing this factor, including her pre-divorce behavior. The chancellor found this factor
favored James because he found that Farra had “committed adultery while [she was]
married.” The chancellor further explained, “After you got your divorce, you started having
intercourse with your boyfriend while he was married. And you let the children reside in the
same house and locale.”
¶18. After a thorough review of the record, we cannot find that the chancellor placed too
much emphasis on Farra’s decision to begin a relationship with a married man or on her pre-
divorce behavior. Rather, the chancellor’s chief concern was Farra’s decision to disregard
the PSA and allow her boyfriend to spend the night while the children were present. We
cannot find the chancellor abused his discretion in finding that this factor weighed in James’s
favor.
C. Preference of the Child
¶19. Farra claims the chancellor erred in failing to allow their twelve-year-old son to state
with which parent he preferred to live. We will discuss this issue in more detail below, but
we do not find any error in this instance.
¶20. After reviewing the record, we cannot find the chancellor abused his discretion in
modifying custody. This issue is without merit.
III. Preference of Twelve-Year-Old Son
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¶21. Farra argues that the chancellor committed reversible error by refusing to allow her
twelve-year-old son to state a preference. Mississippi Code Annotated section 93-11-
65(1)(a) (Rev. 2013) provides that a child’s preference may be taken into account in
determining child custody:
[I]f the court shall find that both parties are fit and proper persons to have
custody of the children, and that either party is able to adequately provide for
the care and maintenance of the children, the chancellor may consider the
preference of a child of twelve (12) years of age or older as to the parent with
whom the child would prefer to live in determining what would be in the best
interest and welfare of the child. The chancellor shall place on the record the
reason or reasons for which the award of custody was made and explain in
detail why the wishes of any child were or were not honored.
(Emphasis added). “[T]he chancellor is not bound by the election of a minor child.” Floyd,
949 So. 2d at 30 (¶12). But, if a chancellor declines to follow a child’s preference, he must
place the reasons in the record. Id.
¶22. During the hearing, Farra asked that the twelve year old be allowed to state his
preference. The chancellor declined this request, stating that based upon prior testimony, he
believed the child had been coached by Farra. The chancellor allowed Farra to make a
proffer regarding the twelve year old’s testimony. The proffer was as follows:
The twelve year old loves his father, loves his mother, would love to spend
time with his father. Would prefer to be in Arkansas where he has friends,
where he has extended family, where he likes to do things in Arkansas in the
proximity to other places that they can go in Arkansas, outside of Benton,
Little Rock, etc. And all of the things that are available there that are not in
Oxford. . . . He seems to think that there is a lot of stuff to do around Arkansas
that is not available here.
¶23. In his Albright analysis, the chancellor stated that he did not allow the child to testify
because he had concerns that Farra had coached the child on what to say. The chancellor
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further stated that although this child wanted to live with Farra (based upon the proffer), “the
preference of the child in this situation [did] not have much bearing on the Court with all of
the factors that I have gone over thus far.” Considering that the majority of the Albright
factors favored James, we find no abuse of discretion in this instance. This issue is without
merit.
IV. Refusal to Allow Children to Testify
¶24. Farra also contends that the chancellor erred in summarily excluding testimony from
the twelve-year-old son and the ten-year-old daughter. Farra argues that the chancellor was
required to conduct a hearing pursuant to Jethrow v. Jethrow, 571 So. 2d 270 (Miss. 1990).
In Jethrow, the supreme court stated that “there can be no per se prohibition against a child
witness testifying in a divorce case between his parents.” Id. at 273. There, the mother
wanted to call the parties’ eight-year-old child “as a witness to testify to acts of violence
against her by [the father],” but the chancellor refused. Id. at 271. The supreme court
reversed, concluding that certain procedures should be followed in deciding whether to
exclude “the testimony of a child witness of tender years in a divorce proceeding.” Id. at
273. First, determine if the child is competent to testify and second, determine whether it is
in the child’s best interests to testify. Id. at 273-74.
¶25. Here, the chancellor did not conduct a Jethrow hearing, and neither party requested
one. The chancellor did state that it was not in the children’s best interest to testify because
he thought pitting the children against the parents would be detrimental to the children. He
stated, “That is not fair. This is not their fight, they didn’t start it. They didn’t cause the
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divorce, they are the victims of it.” The chancellor further expressed his opinion that the
children had been coached, so any testimony would be unhelpful. In this instance, we find
no abuse of discretion by the chancellor.
¶26. AFFIRMED.
IRVING, P.J., BARNES, WILSON, GREENLEE AND WESTBROOKS, JJ.,
CONCUR. TINDELL, J., CONCURS IN RESULT ONLY WITHOUT SEPARATE
WRITTEN OPINION. CARLTON, J., DISSENTS WITH SEPARATE WRITTEN
OPINION, JOINED BY GRIFFIS, P.J., AND FAIR, J.; TINDELL, J., JOINS IN
PART.
CARLTON, J., DISSENTING:
¶27. I respectfully dissent. The chancellor abused his discretion in failing to allow the
twelve-year-old son to testify regarding his preference as to custody. Anderson v. Anderson,
961 So. 2d 55, 59-60 (¶¶7-12) (Miss. Ct. App. 2007). In Anderson, this Court found that the
chancery court abused its discretion in a child custody modification hearing when the
chancellor failed to allow the children to testify as to their custodial preference, effectively
preventing the mother from presenting her case-in-chief prior to the court entertaining the
father’s motion for an involuntary dismissal under Mississippi Rule of Civil Procedure 41(b).
Id.
¶28. Similarly, the chancellor’s failure to hear the testimony of the twelve-year-old child
in this case not only prevented him from expressing his custodial preference, but also denied
Farra the right to present her child as a witness regarding a material change in circumstances.
I recognize that the version of section 93-11-65 in effect at the time Anderson was decided
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has since been revised to slightly weaken the child’s right to choose his custodial parent.3
Relevant here, however, is that under either version of the statute, and under the applicable
case law, a parent is entitled to present a child’s testimony regarding parental preference for
custody in order to demonstrate a material change in circumstances. Anderson, 961 So. 2d
at 59-60 (¶¶7-12); see also Boyd v. Boyd, 83 So. 3d 409, 418 (¶29) (Miss. Ct. App. 2011)
(mother allowed to present daughter’s preference testimony).
¶29. In short, although under section 93-11-65 the chancellor does not have to honor the
twelve-year-old child’s preference, see, e.g., Floyd, 949 So. 2d at 30 (¶12), the mother has
a right to present the evidence at the custody hearing. The chancellor abused his discretion
in this case by declining Farra’s request to present her twelve-year-old son’s testimony on
this issue. I maintain that this case must reversed and remanded due to the chancellor’s abuse
of discretion in refusing to allow the twelve-year-old son to state his preference on the
record.
GRIFFIS, P.J., AND FAIR, J., JOIN THIS OPINION. TINDELL, J., JOINS
THIS OPINION IN PART.
3
In Anderson, section 93-11-65 (Rev. 2004) provided that “any . . . child who shall
have reached his twelfth birthday shall have the privilege of choosing the parent with whom
he shall live.” (Emphasis added). The current statute, also in effect at the 2016 child
custody modification hearing in this case, provides that if the chancellor finds the two parties
fit and proper, then “the chancellor may consider the preference of a child of twelve . . .
years of age or older as to the parent with whom the child would prefer to live in
determining what would be in the best interest and welfare of the child.” Miss. Code Ann.
§ 93-11-65 (Rev. 2013) (emphasis added). The statute further provides that “[t]he chancellor
shall place on the record the reason or reasons for which the award of custody was made and
explain in detail why the wishes of any child were or were not honored.” Id.11