Julia N. Bennett v. Andre D. Bennett

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2016-CA-01779-COA
JULIA N. BENNETT APPELLANT
v.
ANDRE D. BENNETT APPELLEE
DATE OF JUDGMENT: 09/12/2016
TRIAL JUDGE: HON. JOHN C. MCLAURIN JR.
COURT FROM WHICH APPEALED: RANKIN COUNTY CHANCERY COURT
ATTORNEY FOR APPELLANT: WILLIAM P. FEATHERSTON JR.
ATTORNEY FOR APPELLEE: TAMEIKA LADANYA BENNETT
NATURE OF THE CASE: CIVIL - DOMESTIC RELATIONS
DISPOSITION: AFFIRMED: 04/10/2018
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
BEFORE IRVING, P.J., FAIR AND WESTBROOKS, JJ.
FAIR, J., FOR THE COURT:
¶1. Julia Bennett appeals the Rankin County Chancery Court’s judgment awarding her
ex-husband, Andre Bennett, custody of their two daughters if she removed them to another
state. The sole issue on appeal is whether the chancery court complied with Mississippi Code
Annotated section 93-11-65(1)(a) (Rev. 2013) by declining to honor the eldest child’s stated
preference to live with her mother. Because the chancellor adopted the findings of the family
master explaining the deviation from the child’s preference, we affirm.
FACTS
¶2. Andre and Julia married in 1999. During their marriage, they had two daughters –
Madeline1 (born in 2002) and Camille (born in 2006). In 2011, the couple divorced on the
ground of irreconcilable differences. The final judgment of divorce ordered Andre and Julia
to share joint legal and physical custody of the children, with Julia maintaining physical
custody. The judgment further detailed alternating weekly custodial periods, with Andre
having overnight visits every Wednesday and every other Friday and Saturday.
¶3. On July 29, 2016, Andre filed a petition to cite Julia for contempt, modify physical
child custody, and other relief. He claimed that a material change in circumstances had
occurred, namely Julia’s decision to relocate with the children to St. Louis, Missouri. Less
than two weeks later, Andre filed a petition for an emergency hearing. He requested
temporary legal and physical custody of the children to continue their enrollment in Rankin
County schools2 pending a final custody determination by the court. The chancellor granted
Andre’s motion.
¶4. Julia immediately filed an emergency motion to dissolve the chancellor’s order
granting emergency relief. The court granted her motion in part, dissolving the previous
award of temporary custody to Andre in favor of their continued joint legal and physical
custody. However, the court maintained its decision that the children would continue
attending schools in Rankin County until the scheduled hearing on custody modification.
¶5. Julia counterclaimed Andre’s petition to modify custody. She requested sole physical
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The children’s names have been changed to protect their identities.
2
The children had been enrolled in the Rankin County School System in years past,
but they had not yet been enrolled for the 2016-2017 school year.
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custody of the minor children. She also requested that Andre receive visitation based on the
move to St. Louis.
¶6. The court appointed a family master, who held the modification hearing on August
19, 2016. Andre testified that he was very active in his daughters’ lives and that he did not
want the custodial arrangement to change (which would be inevitable if Julia moved to St.
Louis). Andre also testified that he recently bought a three-bedroom house for himself and
the girls. When the girls stayed over, he helped them with their homework and cooked for
them.
¶7. Julia testified that her father and boyfriend lived in St. Louis. She stated that she had
been in a relationship for about one year and she planned to get married. Julia further stated
that she would live with her father until she married her boyfriend. At the time of the
hearing, Julia had no income. However, she stated that she had a job lined up in St. Louis
beginning in September. Julia testified that, prior to the emergency order, she was in the
process of enrolling the children in a St. Louis school.
¶8. The court also heard from Madeline, age fourteen at the time. She testified that if her
mother moved, she wanted to go with her. When asked why, she replied that she had been
with her mother her entire life and they were very close. On the other hand, Madeline stated
that she was also close to her father and she would honor a court order awarding custody to
her father.
¶9. Ultimately, the family master found that no material change in circumstances had
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occurred yet. He explained that if Julia did move to St. Louis, she would create a material
change in circumstances that would be adverse to the children. The family master conducted
an Albright3 analysis in light of Julia’s possible move. After weighing the Albright factors,
including Madeline’s expression of preference, the family master determined that the
evidence favored a modification of custody to Andre. The chancellor agreed. So, if Julia
moved, Andre would get physical custody and Julia would have liberal visitation. Julia
would also have to pay $750 a month in child support.
¶10. Julia appeals.
STANDARD OF REVIEW
¶11. The standard of review for a child custody case is a narrow one. We will not reverse
unless the trial court made findings that are manifestly wrong or clearly erroneous or applied
an improper legal standard. Smith v. Smith, 97 So. 3d 43, 46 (¶7) (Miss. 2012) (citations
omitted).
DISCUSSION
¶12. Julia only challenges one Albright factor – the preference of the minor child.
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
3
Albright v. Albright, 437 So. 2d 1003, 1005 (Miss.1983) (outlining the relevant
factors to be considered in child custody determinations).
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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.
“[T]he chancellor is not bound by the election of a minor child.” Floyd v. Floyd, 949 So. 2d
26, 30 (¶12) (Miss. 2007). However, if a chancellor declines to follow a child’s election, he
must place the reasons in the record. Id.
¶13. In his Albright analysis, the family master noted the following regarding the child’s
preference:
The preference of the child at the age sufficient to express a preference:
[Madeline] is fourteen (14). She is over the age of twelve (12). She is able to
make a preference. She did make that preference for mother. This factor
would favor mother in this regard. [] The stability of the home environment,
I believe, favors [Andre] Bennett primarily because he’s been here with the
children and with mom up until recently. That is a stable environment, one in
which the children are familiar with. You know, [Julia] Bennett, the testimony
was you’re going to live with your dad. You don’t really have a place to live.
You are not married yet. [There are] a lot of unknowns, a lot of question
marks. I am not faulting you for it. I’m just saying that’s just the way it is.
All things considered, the best evidence before the [c]ourt on this half is that
the material change of circumstances was adverse to the children favors a
modification of custody to – to dad.
¶14. We find that the family master appropriately explained his reasons for awarding
custody to Andre instead of Julia in the event that Julia relocates, even though Madeline
expressed a preference to reside with her mother. It was within the chancellor’s discretion
to adopt the family master’s recommendation. Accordingly, we affirm.
¶15. AFFIRMED.
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LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, CARLTON, WILSON,
GREENLEE, WESTBROOKS AND TINDELL, JJ., CONCUR.
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