Marshall v. Harris

981 So. 2d 345, 2008 WL 1947383
CourtCourt of Appeals of Mississippi
DecidedMay 6, 2008
Docket2006-CA-01930-COA
StatusPublished
Cited by7 cases

This text of 981 So. 2d 345 (Marshall v. Harris) is published on Counsel Stack Legal Research, covering Court of Appeals of Mississippi primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Marshall v. Harris, 981 So. 2d 345, 2008 WL 1947383 (Mich. Ct. App. 2008).

Opinion

981 So.2d 345 (2008)

Demetri MARSHALL, Appellant
v.
Likitha HARRIS, Appellee.

No. 2006-CA-01930-COA.

Court of Appeals of Mississippi.

May 6, 2008.

*346 Jessie L. Evans, attorney for appellant.

Melvin Hurley McFatter, attorney for appellee.

Before LEE, P.J., CHANDLER and BARNES, JJ.

CHANDLER, J., for the Court.

¶ 1. The Chancery Court of Claiborne County entered an order declaring Demetri Marshall to be the natural father of the two minor male children, M.M., who was born March 3, 1999, and O.M, who was born April 24, 2005. The chancellor granted custody of both children to their mother, Likitha Harris, and ordered Marshall to pay child support of $1,000 per month along with medical benefits. Marshall received visitation every other weekend, holidays, *347 and the entire month of July. Aggrieved, Marshall appeals. He asserts that the chancery court erred by presuming the best interests of the children were to remain together and that the chancery court unduly curtailed his visitation with the children.

¶ 2. Finding no error, we affirm.

FACTS

¶ 3. Marshall and Harris began a relationship in 1997 when Harris was in nursing school. Marshall was a physician who practiced in Port Gibson, Mississippi. He was approximately twenty-one years older than Harris. Marshall had only been married once, but he admitted he had ten children by five different women. Two of the children were adopted. Harris had never been married and had only the two children fathered by Marshall.

¶ 4. Marshall and Harris never married, but they lived together in a home in Jackson, Mississippi. Testimony revealed that Marshall would travel to Jackson on Tuesday and stay until Thursday, and he would spend the remainder of his time in Port Gibson where he practiced medicine and owned another home. Marshall also said he spent time in Mobile, Alabama.

¶ 5. There was some dispute as to why the parties eventually separated. Marshall believed Harris was upset because he spent so much time helping his ex-wife, who eventually died of cancer. Harris said that the relationship ended because Marshall had a child by another woman just before their second child was born.

¶ 6. The relationship ended in 2006, and Harris filed a paternity suit against Marshall. Marshall then filed a claim for custody and visitation. The chancellor consolidated the two suits into the present case. Prior to trial, both parties stipulated that Marshall was the father of both children. Thereafter, the chancellor entered an agreed order reflecting such stipulation.

¶ 7. The chancellor found that both parties were good parents. In awarding custody to Harris, the chancellor noted that she had been the boys' primary caregiver since their birth. Harris's work schedule was more accommodating for the boys, and she lived in one place. Marshall, however, traveled back and forth between Jackson and Port Gibson weekly, and he already had two of his other children living with him. The chancellor found that both parties were physically and mentally fit, that they were both morally fit, and that they both enjoyed a close relationship with the children.

¶ 8. Marshall argued that it was in the best interests of the children to separate them and to grant custody of M.M. to him. The chancellor noted that Marshall had better financial resources but disagreed that it was necessary to separate the children. M.M. had a stable home environment and good school records. The chancellor also found that Marshall failed to prove that it was not in the best interests of the children to keep them together as a family unit.

¶ 9. The chancellor ordered Marshall to pay child support to Harris in the amount of $1,000 per month along with health insurance and seventy-five percent of the medical expenses. Because this was a paternity suit, the chancellor also awarded Harris $2,000 in attorney's fees. Marshall received visitation every other weekend, the entire month of July, alternating Thanksgivings, and every year for Kwanzaa.

STANDARD OF REVIEW

¶ 10. We apply a limited standard of review in a custody case, and we will not reverse the judgment of the chancellor unless it was manifestly wrong, clearly *348 erroneous, or if the chancellor applied an erroneous legal standard. K.D.F. v. J.L.H., 933 So.2d 971, 980(¶ 33) (Miss.2006) (quoting Hensarling v. Hensarling, 824 So.2d 583, 586(¶ 7) (Miss.2002)). There must be substantial evidence in support of the chancellor's findings. Copeland v. Copeland, 904 So.2d 1066, 1074 (¶ 30) (Miss. 2004).

ANALYSIS OF ISSUES

I. Whether the chancellor improperly considered the best interests of the minor children when he refused to grant separate custody of them.

¶ 11. Marshall first takes issue with the chancellor's decision not to grant separate custody of the two minor children. He claims the chancellor improperly relied on the case of Sparkman v. Sparkman, 441 So.2d 1361 (Miss.1983), in considering whether to separate the children. Marshall concedes that the chancellor considered the Albright factors, but he argues that the chancellor was under the mistaken impression that the law would not allow him to separate the children, thereby rendering the Albright analysis an afterthought.

¶ 12. As always, the polestar consideration in a child custody case is the best interest of the child. Copeland, 904 So.2d at 1074(¶ 31). The chancellor should consider the following factors to determine the best interest of the child:

1) age, health and sex of the child; 2) determination of the parent that had the continuity of care prior to the separation; 3) which has the best parenting skills and which has the willingness and capacity to provide primary child care; 4) the employment of the parent and responsibilities of that employment; 5) physical and mental health and age of the parents; 6) emotional ties of parent and child; 7) moral fitness of 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) stability of home environment and employment of each parent; and 11) other factors relevant to the parent-child relationship.

Hollon v. Hollon, 784 So.2d 943, 947(¶ 12) (Miss.2001) (citing Albright v. Albright, 437 So.2d 1003, 1005 (Miss.1983)).

¶ 13. In Sparkman, the supreme court noted that while there is no per se rule that siblings should remain together, the court should try to keep children together as a family unit. Sparkman, 441 So.2d at 1362. The supreme court went on to state that "in the absence of some unusual and compelling circumstance dictating otherwise, it is not in the best interest of children to be separated." Id.

¶ 14. Marshall points us to a number of cases in which the courts found that separating siblings was in their best interests. See Bowen v. Bowen, 688 So.2d 1374, 1381-82 (Miss.1997); Bell v. Bell, 572 So.2d 841, 846 (Miss.1990); C.W.L. v. R.A., 919 So.2d 267, 273(¶ 21) (Miss.Ct.App. 2005). However, none of those cases hold that it is improper to consider whether to separate siblings as a factor in awarding custody. Instead, they reaffirm that it is one factor to consider in determining the best interests of the children. See Bowen, 688 So.2d at 1382; Bell, 572 So.2d at 846; C.W.L., 919 So.2d at 272-73 (¶¶ 19-21).

¶ 15. In Bell,

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Bluebook (online)
981 So. 2d 345, 2008 WL 1947383, Counsel Stack Legal Research, https://law.counselstack.com/opinion/marshall-v-harris-missctapp-2008.