Mercier v. Mercier

717 So. 2d 304, 1998 WL 409478
CourtMississippi Supreme Court
DecidedJuly 23, 1998
Docket96-CA-00564-SCT
StatusPublished
Cited by56 cases

This text of 717 So. 2d 304 (Mercier v. Mercier) is published on Counsel Stack Legal Research, covering Mississippi Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Mercier v. Mercier, 717 So. 2d 304, 1998 WL 409478 (Mich. 1998).

Opinion

717 So.2d 304 (1998)

Margaret Skinner MERCIER
v.
Steve MERCIER.

No. 96-CA-00564-SCT.

Supreme Court of Mississippi.

July 23, 1998.

*305 Conrad Mord, Tylertown, for Appellant.

Leigh Kennington Berry, Foxworth Shepard & Berry, Columbia, for Appellee.

En Banc.

MILLS, Justice, for the Court:

STATEMENT OF THE CASE

¶ 1. Margaret Skinner Mercier appeals from a decision of the Chancery Court in Marion County awarding full physical custody of her daughter, Dusty Richelle Mercier, to Steve Mercier, the child's father. Aggrieved, Margaret Mercier brings this appeal assigning the following issue as error:

I. WHETHER THE TRIAL COURT ERRED IN APPLYING THE ALBRIGHT FACTORS IN A CUSTODY CASE AND REFUSING TO AWARD PHYSICAL CUSTODY OF A SEVEN-YEAR OLD FEMALE TO HER MOTHER.

STATEMENT OF THE FACTS

¶ 2. Steve Mercier and Margaret Skinner Mercier were married on March 4,1988. Dusty Richelle Mercier was born on April 13, 1989, and is the only child produced by this marriage. The parties separated on February 1, 1992, and were divorced on July 2, 1992. Joint legal and physical custody of Dusty was vested in Steve and Margaret, with each having primary custody every other week. Steve was ordered to pay $150 per month in child support and to secure and maintain medical insurance and major medical coverage for Dusty.

¶ 3. Following the divorce, Steve remarried. His new wife, Lisa, has one child, Sarah, who was nine years old at the time of trial. She resides with them full time. Steve has one other child, Brent Mercier, age seven at the time of trial. Brent lives with his mother. Additionally, Steve and Lisa were expecting a child at the time of this litigation.

¶ 4. Following the divorce, Margaret married Richard Hitt. At the time of the trial, she and Hitt had divorced and she was residing with her parents and her aunt and attending college working on a bachelor's degree in education.

¶ 5. On August 2, 1995, Steve filed a Petition to Clarify Final Decree of Divorce, alleging that Margaret had enrolled Dusty in a private academy against his advice and wishes. Margaret answered Steve's petition and counterclaimed that a material and substantial change in circumstances had occurred since the Final Decree of Divorce in that Dusty was now six years old and in school. Steve and Margaret both agreed that joint custody was impractical and not in Dusty's best interest.

¶ 6. Steve filed an amended petition making the same allegations as those asserted by Margaret in her petition. Both parties argued that they were the fit, suitable and proper persons to have full care and custody of Dusty.

¶ 7. Following a full trial on March 21, 1996, the chancellor found, upon admission of both parties, that there had been a material and substantial change in circumstances since the Final Decree of Divorce which adversely affected Dusty. The chancellor further found, pursuant to Albright v. Albright, 437 So.2d 1003 (Miss.1983), that the best interests of the child would be served by granting Steve physical custody and control *306 of Dusty, while granting legal custody to both Steve and Margaret, with Margaret having visitation rights. Additionally, the chancellor ordered Margaret to pay $100 per month in child support.

STANDARD OF REVIEW

¶ 8. When reviewing a chancellor's decision, we will accept a chancellor's findings of fact as long as the evidence in the record reasonably supports those findings. Perkins v. Thompson, 609 So.2d 390, 393 (Miss.1992). In other words, we will not disturb the findings of a chancellor unless those findings are clearly erroneous or an erroneous legal standard was applied. Hill v. Southeastern Floor Covering Co., 596 So.2d 874, 877 (Miss.1992).

DISCUSSION

I. WHETHER THE TRIAL COURT ERRED IN APPLYING THE ALBRIGHT FACTORS IN A CUSTODY CASE AND REFUSING TO AWARD PHYSICAL CUSTODY OF A SEVEN-YEAR OLD FEMALE TO HER MOTHER.

¶ 9. When a court enters an order awarding custody of a child, that court holds continuing jurisdiction over the subject matter and the parties for the purpose of later modifications of that order. Miss.Code Ann. § 93-5-23 (Supp.1996). Any order for joint custody may be modified upon the showing of a material change of circumstances adverse to the interest of the child. Rutledge v. Rutledge, 487 So.2d 218, 220 (Miss.1986); See also Miss.Code Ann. § 93-5-24(6) (1994). In the case sub judice, the parties admitted that a material change in circumstances adverse to the interest of the child had occurred. It was thus necessary for the court to determine the custody arrangement which would be in the best interest of the child. Newsom v. Newsom, 557 So.2d 511, 515-16 (Miss.1990); Phillips v. Phillips, 555 So.2d 698, 700 (Miss.1989). Margaret asserts the chancellor misapplied that law in the instant case.

¶ 10. The Albright factors are as follows:

1. Age, health, sex of the child.
2. Continuity of care prior to the separation.
3. Parenting skills and willingness and capacity to provide primary child care.
4. Employment of the parent and responsibilities of that employment.
5. Physical and mental health and age of the parents.
6. Emotional ties of the parent and the child.
7. Moral fitness of the parents.
8. The home, school, and community record of the child.
9. The preference of the child at the age sufficient, by law, to express a preference.
10. Stability of home and employment of each parent.
11. Other factors relevant to the parentchild relationship.

Albright, 437 So.2d at 1005. The polestar consideration in custody matters is the best interest and welfare of the child, and the above stated factors are to be employed in the furtherance of that determination. Id.

¶ 11. In the instant case, the chancellor found that factors 3, 4, 8, and 10 weighed in Steve's favor. The chancellor found the remaining factors, with the exception of factor 9, which is not applicable here, to weigh equally between the parties.

¶ 12. Margaret asserts that the chancellor erred when he concluded that factor number one, the age, sex and health of the child, weighed equally between the parties. She cites a litany of cases to support her proposition that if a mother is fit and a child, especially a female child, is of tender years, then the mother should be awarded custody. Buntyn v. Smallwood, 412 So.2d 236, 238 (Miss.1982) (custody of female child of five years of age granted to mother); Kyzar v. Kyzar, 248 Miss. 59, 157 So.2d 770 (1963) (custody of three females and one male, ranging in age from one and one-half years old to nine years old, granted to mother); Brown v. Brown, 237 Miss. 53, 112 So.2d 556 (1959) (custody of four and onehalf year old female granted to mother); Thames v. Thames, 233 Miss. 24, 100 So.2d 868 (1958); Scott v. Scott, 219 Miss. 614, 631, 69 So.2d *307 489 (1954) (custody of female five year old granted to mother); Kennedy v. Kennedy, 222 Miss.

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Bluebook (online)
717 So. 2d 304, 1998 WL 409478, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mercier-v-mercier-miss-1998.