Priscilla Riley v. Adam Heisinger

• Court: Court of Appeals of Mississippi
• Decided: August 25, 2020
• Docket: NO. 2019-CA-00211-COA
• Status: Published

Opinion

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

NO. 2019-CA-00211-COA

PRISCILLA RILEY APPELLANT

v.

ADAM HEISINGER APPELLEE

DATE OF JUDGMENT: 12/27/2018 TRIAL JUDGE: HON. JERRY G. MASON COURT FROM WHICH APPEALED: LAUDERDALE COUNTY CHANCERY COURT ATTORNEY FOR APPELLANT: WILLIAM STACY KELLUM III ATTORNEY FOR APPELLEE: J. DOUGLAS FORD NATURE OF THE CASE: CIVIL - DOMESTIC RELATIONS DISPOSITION: AFFIRMED - 08/25/2020 MOTION FOR REHEARING FILED: MANDATE ISSUED:

EN BANC.

WILSON, P.J., FOR THE COURT:

¶1. This is the second appeal in this dispute between Priscilla Riley and Adam Heisinger

regarding the custody of their daughter, B.H.1 In the first appeal, we reversed and remanded

the case to the chancery court for a new Albright2 analysis. Heisinger v. Riley, 243 So. 3d

248 (Miss. Ct. App. 2018).

¶2. After the first trial in the case and while the first appeal was pending, Adam filed two

contempt petitions against Priscilla. The parties agreed to hold those issues in abeyance until

1 Initials are used to protect the privacy of the minor child. 2 Albright v. Albright, 437 So. 2d 1003, 1005 (Miss. 1983). the first appeal was decided. After this Court’s decision, Adam filed a third contempt

petition. After a new trial on remand, the chancellor found that Priscilla was in contempt for

failing to comply with prior court orders and awarded Adam a judgment for attorney’s fees.

In addition, after a new Albright analysis, the chancellor found that it was in B.H.’s best

interest for Adam to have custody. Accordingly, the chancellor granted Adam’s petition to

modify custody and awarded him custody of B.H. with Priscilla to have visitation.

¶3. Priscilla appeals and raises five issues. First, she argues that the chancellor failed to

follow the instructions of this Court’s prior decision because he did not focus on the

circumstances at the time of the hearing on remand. Second, she argues that the chancellor

clearly erred by finding that there had been a material change in circumstances warranting

a modification of custody. Third, she argues that the chancellor clearly erred by determining

that the Albright factors favor Adam. Fourth, she argues that the chancellor should have

appointed a guardian ad litem. Fifth, she argues that the chancellor erred by finding her in

contempt and awarding Adam attorney’s fees. For the reasons discussed below, we find no

error and affirm.

FACTS AND PROCEDURAL HISTORY3

¶4. Adam and Priscilla met while both were in the military and stationed in Virginia.

Adam was an Air Force flight surgeon, and Priscilla was in the Navy. In 2011, Priscilla

became pregnant and believed that Adam might be the father. Priscilla later moved to Iowa,

and B.H. was born in January 2012. Adam was deployed overseas when B.H. was born. He

3 Background facts and procedural history leading up to the first appeal are drawn from this Court’s prior opinion. Heisinger, 243 So. 3d at 252-56 (¶¶5-28).

2 returned to the United States in May 2012 and filed a petition in Iowa for DNA testing and

to determine paternity and custody. Adam was then deployed again, which delayed the

completion of DNA testing. In May 2013, DNA testing confirmed that Adam was B.H.’s

father, and he met B.H. for the first time the next month.

¶5. In a September 2013 order, the Iowa court determined custody and visitation. The

court awarded Adam and Priscilla joint legal custody, awarded physical custody to Priscilla,

and awarded visitation to Adam. At the time, Adam was in a residency program in Ohio.

In January 2014, Priscilla married Shawn Riley, who was also in the Navy.

¶6. In November 2014, the Iowa court found Priscilla in contempt for denying Adam

visitation with B.H. The court sentenced Priscilla to thirty days in jail, which was suspended

on the condition that she comply with a new visitation schedule. The court granted Adam

additional visitation to make up for time he had lost because of Priscilla’s actions and

modified his visitation schedule to allow him two weeks of visitation during each eight-week

period. Around the same time, Priscilla, Shawn, and B.H. moved to Meridian.

¶7. In August 2015, B.H., who was then three-and-a-half years old, visited Adam in Ohio.

Adam had to work during part of the visit, and he left B.H. in the care of a babysitter, Mandy.

During the visit, Adam noticed small burn marks on B.H.’s finger and forearm. He

mentioned the marks to Mandy, and she pointed out another mark she had noticed on B.H.’s

buttock. When Adam asked B.H. about the marks, she said she had been burned on the stove

or oven while Shawn was cooking. Adam decided to take B.H. to the hospital to document

the burns, and a doctor concluded that the burns were in the latter stages of healing. Hospital

3 records reflect that B.H. told hospital staff that she had been burned at Priscilla’s house.

¶8. Priscilla and Shawn travelled to Ohio to pick up B.H. at Adam’s house. Priscilla

alleged that she and Shawn discovered all three burn marks while Shawn was still in the

process of putting B.H. in their car outside Adam’s house. According to Priscilla, they asked

B.H. about the marks, and she told them that she had been burned at their home in Meridian.

Priscilla decided to take B.H. to the local police department to file a report about the burns.

B.H. also told the police that she had been burned in Meridian. Priscilla also took B.H. to

the hospital for treatment, and the records from this visit to the hospital are similar to those

from her prior visit with Adam. After she returned home, Priscilla reported to the Mississippi

Department of Child Protective Services (MDCPS) that she suspected that B.H. had been

abused and neglected while in Adam’s care.

¶9. Priscilla unilaterally denied Adam his next scheduled visitation based on the burn

marks. MDCPS, in coordination with Ohio’s child protection agency, investigated Priscilla’s

allegations and found them to be “unsubstantiated.” Nonetheless, Priscilla filed a petition

in the Lauderdale County Chancery Court to enroll the Iowa judgment and to suspend and/or

modify Adam’s visitation with B.H. Priscilla also continued to deny Adam his visitation

with B.H.

¶10. Adam filed an answer and a counterclaim to enforce the Iowa judgment, to modify

custody, and to find Priscilla in contempt. Due to Priscilla’s allegation of abuse and neglect,

the chancellor appointed attorney Frances Stephenson to serve as a guardian ad litem (GAL).

Because Adam had been denied visitation and had not seen B.H. for several months, the

4 GAL first met with B.H. and Adam in her office. Because B.H. was uncomfortable around

Adam, the GAL recommended that B.H. receive counseling from a child psychologist. The

chancellor adopted the GAL’s recommendation and ordered B.H. to see Dr. Jennifer

Whitcomb. The chancellor also ordered the GAL to continue working with B.H., Priscilla,

and Adam to determine if and how Adam’s visitation with B.H. should resume.

¶11. Dr. Whitcomb and the GAL determined that Adam should have visitation with B.H.

in Meridian first, and, if it went well, B.H. would go to Ohio with Adam for a week-long

visit. The Meridian visitation ultimately was a success, and B.H. resumed regular visitation

with Adam in Ohio.

¶12. The first trial in this case was held in September 2016. Adam requested visitation

with B.H. while he was in Meridian for the trial, but Priscilla refused. Priscilla also refused

to allow any post-trial visitation. She told Adam that she would not allow further visitation

without a specific court order.

¶13. At trial, Priscilla claimed that she never intended to accuse Adam personally of

burning B.H., but she suspected that the burns had occurred while B.H. was in Mandy’s care,

and she faulted Adam for leaving B.H. with Mandy. Priscilla claimed that she had denied

Adam visitation “[t]o protect [B.H.] from being harmed further.” Priscilla asked that Adam

only be allowed supervised visitation with B.H. in Mississippi.

¶14. Adam denied that B.H. was burned while she was in Ohio. He believed that B.H. was

burned at Priscilla’s house in Meridian, as B.H. had stated on multiple occasions. Adam also

testified about Priscilla’s repeated denials of his court-ordered visitation.

5 ¶15. Adam acknowledged that B.H. and Priscilla were close, but he testified that Priscilla

was not a good parent because she was trying to exclude him from B.H.’s life. Adam

maintained that it would be in B.H.’s best interest for him to have physical custody.

¶16. Dr. Whitcomb testified as an expert in child development. She testified that B.H.

denied that Adam had ever hurt her in any way. Dr. Whitcomb concluded that B.H. had a

good relationship with Adam, and she had no concerns about B.H.’s safety with Adam in

Ohio. Dr. Whitcomb reported that Priscilla cancelled or failed to show up for two of B.H.’s

court-ordered counseling sessions, and she opined that Priscilla’s continued interference with

Adam’s relationship with B.H. was tantamount to “emotional abuse.” Dr. Whitcomb also

suspected that Priscilla had attempted to coach B.H. to accuse Adam of burning her.

¶17. In November 2016, the chancellor entered the first final judgment in this case. The

chancellor found that Adam had not abused or neglected B.H. Therefore, he denied

Priscilla’s petition to suspend visitation or to require supervised visitation. The chancellor

also denied Priscilla’s request to modify Adam’s visitation under the Iowa court order.

¶18. The chancellor next found Priscilla in contempt for willfully violating the Iowa court

order by denying multiple visitation requests by Adam. The chancellor found that Priscilla’s

contempt warranted incarceration, but he suspended her incarceration on several conditions,

including her compliance with the court-ordered visitation schedule and continued

cooperation in B.H.’s counseling sessions with Dr. Whitcomb.

¶19. The chancellor found that there had been a material change in circumstances related

to B.H.’s custody—namely, Priscilla’s persistent interference with Adam’s visitation and

6 relationship with B.H. The chancellor also found that this change had adversely affected

B.H. because Priscilla’s misconduct had undermined B.H.’s relationship with Adam.

However, after considering the Albright factors, the chancellor found that it was in B.H.’s

best interest to remain in Priscilla’s physical custody. Adam appealed.

¶20. After the first trial, Adam filed a petition for contempt, and subsequently he filed an

amended petition for contempt. Adam alleged that Priscilla was in contempt because, among

other things, she had continued to deny him visitation, failed to comply with the court’s order

requiring counseling sessions for B.H. with Dr. Whitcomb, and failed to provide him with

a birth certificate. In October 2017, following a hearing, the court entered an agreed order

that Adam’s contempt petitions would be held “in abeyance indefinitely subject to being later

asserted and/or heard.” The court also ordered Priscilla to (1) pay Adam $3,000 in attorney’s

fees, (2) obtain a new birth certificate to “clearly reflect” B.H.’s surname as “Riley-

Heisinger,” and (3) provide Adam with a certified copy of the new birth certificate. The

court further ordered that “[g]iven the break in Adam’s visitation” prior to the entry of the

order, “the parties shall re-engage the services of [Dr. Whitcomb], should the need arise as

Adam exercises his visitation with B.H. hereafter.”

¶21. In this Court’s subsequent decision in the first appeal, we reversed and remanded the

denial of Adam’s petition to modify custody. We first held that “[t]he chancellor’s finding

of a material change in circumstances [was] supported by substantial, credible evidence.”

Heisinger, 243 So. 3d at 257 (¶32). Indeed, we noted that “Priscilla [did] not directly

challenge [that] finding on appeal.” Id. Therefore, “the chancellor was required to conduct

7 an Albright analysis” as part of his custody determination, which he did. Id. at (¶33).

¶22. This Court reversed and remanded the case for a new Albright analysis because the

chancellor had erred by weighing two factors—continuity of care and the emotional ties

between the parents and child—in favor of Priscilla. Id. at 257-58 (¶¶34-40). Applying prior

precedent of this Court, we held that those two factors could not be weighed in Priscilla’s

favor because her own misconduct had prevented Adam from providing care to B.H. and had

undermined his emotional ties to B.H. Id. (discussing Story v. Allen, 7 So. 3d 295, 298-99

(¶¶21-23) (Miss. Ct. App. 2008)). Therefore, “equity dictate[d]” that those factors should

not have favored Priscilla but, at most, should have been “neutral.” Id. at 258 (¶39) (quoting

Story, 7 So. 3d at 299 (¶22)). We concluded that a new Albright analysis was required

because “[t]he error relate[d] to two important Albright factors” and “the evidence could

have supported a different ruling and a modification of custody.” Id. at 258 (¶40). We stated

that although we were required to reverse and remand for further consideration by the

chancellor, “we [would] not substitute our judgment for the chancellor’s by rendering a final

custody decision.” Id. at 259 (¶43).

¶23. On remand, the chancellor set the case for a new trial on Adam’s petition to modify

custody and pending contempt petitions.4 The parties stipulated that the chancellor could

consider all evidence and testimony from the first trial in his decision on remand. The new

trial was held on December 3-4, 2018.

4 Adam had filed a third contempt petition after this Court’s decision on appeal.

8 ¶24. Frances Stephenson, who previously served as the GAL,5 testified that Priscilla

continued to interfere with Adam’s visitation after the 2016 trial. At the first trial,

Stephenson did not recommend a modification of custody. However, on remand, Stephenson

testified that she would recommend a change of custody based on Priscilla’s continuing

misconduct.

¶25. Dr. Whitcomb testified that she continued her counseling sessions with B.H. after the

2016 trial. At that time, Dr. Whitcomb was concerned that Priscilla was coaching B.H. to

say that she wanted to visit with Adam “in Mississippi” rather than at Adam’s home. Even

so, B.H. told Dr. Whitcomb that she was excited to see Adam at Christmas in 2016. In April

2017, Dr. Whitcomb released Priscilla from her obligation to continue B.H.’s counseling

sessions, as the court’s judgment permitted. She told Priscilla and Adam that she could see

B.H. again if either of them had any concerns. Dr. Whitcomb testified that B.H. and Adam

had a stable and loving relationship at that time.

¶26. Dr. Whitcomb next saw B.H. in September 2018. At that time, she met with B.H. and

Adam, and she testified that B.H. was happy and flourishing and that there was a clear

emotional bond between B.H. and Adam. Dr. Whitcomb testified that she still had concerns

about Priscilla’s parenting. She testified that some of Priscilla’s parenting decisions

amounted to “emotional abuse,” but she did not elaborate.

¶27. Adam testified that since the first trial, he had completed both his residency in Ohio

and a one-year orthopaedic surgery fellowship in Virginia. Since 2018, he has practiced in

5 Stephenson was released as the GAL after filing her final report in July 2017.

9 La Grande, Oregon, in eastern Oregon. At his new practice, he works four days per week

from 8:30 a.m. to 4:30 p.m. He is on call at the hospital ten nights per month, but he rarely

needs to go to the hospital to see a patient while on call. Adam testified that he has a good

life in Oregon. B.H. had enjoyed herself when visiting him in Oregon, and he felt that she

would have a good life there too.

¶28. Adam testified that his schedule would allow him to take B.H. to school each morning

and pick her up from daycare each afternoon. On days when he did not work, she would not

have to attend daycare. He also would be able to take her to her extracurricular activities.

B.H.’s school would be only one block from the hospital where he worked, and several of

his friends’ children attended the school.

¶29. Adam testified that Priscilla repeatedly denied his requests for visitation between

September 2016 and October 2017 with only two exceptions: a visit in December 2016 that

the chancery court’s prior judgment specifically ordered and a visit in February 2017. Adam

requested visitation in June 2017 so that B.H. could attend his graduation from his residency

program and visit with his mother and sister. However, Priscilla refused his request.

Priscilla finally allowed Adam regular visitation beginning in October 2017 after he pursued

contempt petitions against her.

¶30. Adam testified that he had been able to communicate with B.H. via Skype more

regularly than before the first trial, but there were still problems. He testified that his

communications with B.H. were often difficult because of poor internet service or excessive

background noise at Priscilla’s house, because B.H.’s device would run out of battery, or

10 because Priscilla hovered nearby.

¶31. Adam also testified that Priscilla had failed to obtain a new birth certificate to show

that B.H.’s name was “Riley-Heisinger” and had failed to provide him with a copy of her

birth certificate—even though the Iowa court had ordered her to do so in 2015 and the

chancery court had ordered her to do so again in the October 2017 agreed order. Indeed, at

the time of trial on remand, Adam still had not received an official copy of B.H.’s birth

certificate. Priscilla also failed to use Adam’s last name in Priscilla’s school and medical

records, which made it difficult or impossible for Adam to communicate with B.H.’s school

and doctors. Priscilla admitted that as recently as July 2018—i.e., even after this Court’s

decision in the first appeal—she continued to omit “Heisinger” from B.H.’s school forms.

She finally updated B.H.’s school records just a few weeks before the trial on remand. In

medical records, Priscilla continued to identify her husband as B.H.’s father. In addition,

Priscilla told B.H. that her name was “[B.] Riley.”6

¶32. Adam testified that Priscilla had refused to re-engage Dr. Whitcomb for additional

counseling for B.H. Specifically, after Adam’s visitation resumed in 2017, Priscilla began

claiming that B.H. would “freak out” when she was “forced” to visit Adam. In response,

Adam suggested that B.H. see Dr. Whitcomb again—as provided for in the October 2017

agreed order. See supra ¶20. However, Priscilla refused.

¶33. At the time of the trial on remand, Priscilla was still living in Lauderdale County, but

6 Priscilla has regularly identified B.H. by the surname “Riley,” which is Priscilla’s current (married) surname. However, as of the time of the trial on remand, B.H.’s birth certificate continued to show her surname as “Strong,” which was Priscilla’s maiden name and surname when B.H. was born.

11 she had moved two or three times since the first trial. At the time of the first trial, Priscilla

was a stay-at-home mother. After the first trial, she returned to work for about ten months,

but she quit her most recent job in a dental office about two weeks before the trial on remand,

and she testified that she was again a stay-at-home mother. At the time of the first trial,

Shawn was in the Navy and stationed at the Naval Air Station in Meridian. At the time of

the trial on remand, Shawn had retired from the Navy and was working for a drilling

company. Shawn’s new job required him to travel frequently, and he was away from home

two of every four weeks. Priscilla was caring for four children: her fifteen-year-old stepson,

B.H., a four-year-old son, and a two-year-old daughter. Priscilla testified that B.H. and her

half-siblings are close.

¶34. Priscilla claimed that she had never denied Adam’s visitation requests in bad faith.

She claimed that she believed she was following prior court orders. Priscilla testified that

she denied Adam’s request for visitation to coincide with his graduation and on another

occasion because Adam requested beginning and ending dates that were not Saturdays.

Priscilla claimed that Saturday-to-Saturday visitation was a requirement of a 2013 Iowa order

that had carried forward to the present. Priscilla admitted that she had previously allowed

Adam to start visitation in the middle of a week, but she claimed that she had only made an

exception to the court order as a “kindness” to Adam.

¶35. Priscilla claimed that she still had not been able to change B.H.’s birth certificate

because the 2015 Iowa order included a misspelling of B.H.’s middle name. Priscilla also

claimed that she had told B.H.’s doctors and schools that B.H.’s surname was Riley-

12 Heisinger, but she acknowledged that B.H.’s school and medical records continued to

identify her surname as “Riley.” Priscilla testified that Adam was a good father, although

she had numerous complaints about him and his parenting.

¶36. After trial, the chancellor found Priscilla in contempt for violating prior orders by

denying Adam visitation and failing to obtain a corrected birth certificate. The chancellor

awarded Adam a judgment of $8,000 for Priscilla’s contempt. The chancellor also conducted

a new Albright analysis based on the circumstances at the time of remand and found that it

would be in B.H.’s best interest for Adam to have custody. We discuss the chancellor’s

analysis in more detail below. Based on his determination of B.H.’s best interest, the

chancellor granted Adam’s petition to modify custody and awarded physical and legal

custody to Adam. Priscilla was granted visitation.

¶37. Priscilla filed a motion for a new trial or to amend the judgment and a separate

emergency motion to stay the judgment. The chancery court denied Priscilla’s emergency

motion to stay the judgment. Priscilla then withdrew her motion for a new trial or to amend

the judgment and filed a notice of appeal.

ANALYSIS

¶38. On appeal, Priscilla argues that the chancellor (1) failed to follow this Court’s prior

decision because he did not focus on the circumstances at the time of the trial on remand; (2)

clearly erred by finding a material change in circumstances warranting a modification of

custody; (3) clearly erred by finding that a modification of custody was in B.H.’s best

interest; (4) erred by not appointing a guardian ad litem; and (5) erred by finding her in

13 contempt and awarding attorney’s fees to Adam. We address these issues in turn below.

I. The chancellor followed this Court’s instructions on remand.

¶39. Priscilla first argues that the chancellor did not follow this Court’s instruction to

determine custody based “on the best interest of the child and the circumstances as they exist

‘at the time of the remand hearing.’” Heisinger, 243 So. 3d at 263 (¶59) (quoting Vaughn

v. Davis, 36 So. 3d 1261, 1267 (¶18) (Miss. 2010)). Priscilla makes this argument even

though the chancellor expressly stated in his opinion on remand that his “new Albright

analysis [was] based upon the circumstances as they exist[ed] ‘at the time of the remand

hearing.’” Priscilla argues that the chancellor failed to follow this Court’s instruction

because he considered evidence from the 2016 trial and events that occurred prior to the

October 2017 agreed order. Indeed, she seems to argue that the chancellor should have not

have considered anything that occurred prior to the October 2017 agreed order.

¶40. We disagree. In our prior opinion, we recognized that more than eighteen months had

passed since the prior custody hearing, and we held that the chancellor should determine

B.H.’s best interest based on present circumstances. Id. We did not hold that evidence from

the first trial or the events prior to the agreed order were irrelevant to that decision. Indeed,

Priscilla’s history of denying visitation was clearly relevant to a determination of B.H.’s

present best interest. Priscilla repeatedly denied Adam visitation prior to the first trial, and

she was held in contempt for it. As soon as she “won” the first trial, she began denying him

visitation again. She stopped only after Adam filed yet another contempt petition and

14 pursued it to a hearing. The chancellor was within his discretion to consider that history in

determining what custodial arrangement would be in B.H.’s best interest. As the saying goes,

“[t]hose who cannot remember the past are condemned to repeat it.” George Santayana, The

Life of Reason: The Phases of Human Progress, Volume One: Reason in Common Sense 284

(1905). Priscilla cites no authority that would preclude the chancellor from considering such

highly relevant evidence. This issue is without merit.7

II. Based on this Court’s prior decision, the chancellor’s finding of a material, adverse change in circumstances was the law of the case.

¶41. “To modify child custody, ‘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 interest mandates

a change of custody.’” Strait v. Lorenz, 155 So. 3d 197, 203 (¶20) (Miss. Ct. App. 2015)

(quoting A.M.L. v. J.W.L., 98 So. 3d 1001, 1013 (¶24) (Miss. 2012)). Thus, the chancellor

must first determine whether there has been a material change in circumstances that

adversely affects the child. If the chancellor makes such a finding, “the chancellor must then

perform an Albright analysis to determine whether modification of custody is in the child’s

best interest.” Id.

¶42. Much of Priscilla’s brief in this appeal is devoted to challenging the chancellor’s

finding of a material, adverse change in circumstances. However, the chancellor already

made such a finding in his 2016 opinion and judgment, and this Court affirmed the

7 We further note that the parties expressly stipulated on remand that “all evidence, including testimony, admitted at the [first] trial” could be “considered by the chancellor for his subsequent opinion and/or judgment.”

15 chancellor’s finding in our prior decision. Heisinger, 243 So. 3d at 256-57 (¶¶27-32).

Specifically, “[t]he chancellor found that Priscilla’s willful and extensive interference with

Adam’s visitation and relationship with B.H. was a material change in circumstance because

of the harm it had done to Adam’s relationship with B.H.” Id. at 257 (¶32). On appeal, this

Court held that the chancellor’s finding “was supported by substantial, credible evidence,”

and we noted that Priscilla did not challenge that finding on appeal. Id.

¶43. Given this Court’s decision in the first appeal, the chancellor’s finding of a material,

adverse change in circumstances was the law of the case on remand. See, e.g., Lewis v.

Pagel, 172 So. 3d 162, 174 (¶23) (Miss. 2015); Griner v. Griner, 282 So. 3d 1243, 1250

(¶¶23-25) (Miss. Ct. App. 2019). On remand, the chancellor properly recognized that this

Court reversed and remanded the case for a new Albright analysis, and he committed no error

by proceeding directly to that issue. Accordingly, Priscilla’s arguments that there had been

no material change in circumstances are without merit.

III. The chancellor did not commit any clear or manifest error in applying the Albright factors or by finding that a modification of custody was in B.H.’s best interest.

¶44. As noted just above, if the chancellor finds that there has been a material, adverse

change in circumstances, “the chancellor must then perform an Albright analysis to determine

whether modification of custody is in the child’s best interest.” Strait, 155 So. 3d at 203

(¶20). “A chancellor’s custody decision will be reversed only if it was manifestly wrong or

clearly erroneous, or if the chancellor applied an erroneous legal standard.” Smith v. Smith,

97 So. 3d 43, 46 (¶7) (Miss. 2012). “[T]his Court cannot reweigh the evidence and must

16 defer to the chancellor’s findings of the facts, so long as they are supported by substantial

evidence.” Hall v. Hall, 134 So. 3d 822, 828 (¶21) (Miss. Ct. App. 2014). Thus, the issue

on appeal is not whether this Court “agrees with the chancellor’s ruling,” but only whether

“the chancellor’s ruling is supported by credible evidence.” Hammers v. Hammers, 890 So.

2d 944, 950 (¶14) (Miss. Ct. App. 2004).

¶45. “[T]he polestar consideration in child custody cases is the best interest and welfare

of the child.” Albright, 437 So. 2d at 1005. The chancellor’s evaluation of the child’s best

interest must consider the following factors: (1) the age, health, and sex of the child; (2)

which parent has had “continuity of care”; (3) the parties’ “parenting skills”; (4) the parties’

“the willingness and capacity to provide primary child care”; (5) the parties’ employment

responsibilities; (6) the parties’ “physical and mental health and age”; (7) the “emotional ties

of parent and child”; (8) the parties’ “moral fitness”; (9) “the home, school and community

records of the child”; (10) the child’s preference, if the child is at least twelve years old; (11)

the stability of the home environment and employment of each party; and (12) any “other

factors relevant to the parent-child relationship” or the child’s best interest. Id.

¶46. The chancellor must address each Albright factor that is applicable to the case, Powell

v. Ayars, 792 So. 2d 240, 244 (¶10) (Miss. 2001), but the chancellor need not decide that

each factor favors one parent or the other. Weeks v. Weeks, 989 So. 2d 408, 411 (¶12) (Miss.

Ct. App. 2008). Nor does Albright require the chancellor to award custody “to the parent

who ‘wins’ the most factors.” Blakely v. Blakely, 88 So. 3d 798, 803 (¶17) (Miss. Ct. App.

2012). “[T]he chancellor has the ultimate discretion to weigh the evidence the way he sees

17 fit.” Johnson v. Gray, 859 So. 2d 1006, 1013-14 (¶36) (Miss. 2003). We review the

chancellor’s application of the factors for manifest error, giving deference to the weight that

he assigned each factor. Smith v. Smith, 206 So. 3d 502, 513 (¶24) (Miss. 2016).

¶47. On remand, the chancellor found that most of the Albright factors were neutral: the

age, sex, and health of the child; the parties’ physical and mental health and age; continuity

of care; emotional ties; the parties’ willingness and capacity to provide child care; and the

stability of the parties’ home environments and employment. The school and community

record factor favored Priscilla. Parenting skills and moral fitness favored Adam. After

considering all factors, the chancellor found that it would be in B.H.’s best interest for Adam

to have custody.

¶48. On appeal, Priscilla argues that the chancellor’s finding that the emotional ties and

continuity of care factors were neutral “was based on outdated and erroneous information and

did not evaluate the current circumstances of the parties.” In addition, Priscilla argues that

the evidence does not support the chancellor’s findings regarding the parties’ parenting skills

and employment; that the chancellor clearly erred by finding that the moral fitness factor

favored Adam; and that the chancellor failed to consider B.H.’s separation from her

stepbrother and half-siblings. We address these specific arguments in turn below. We then

briefly address the different arguments advanced by the dissent.8

¶49. However, we begin with the broader observation that our prior opinion specifically

concluded that this was “a case in which the evidence could have supported . . . a

8 The separate opinion concurs on the issues of contempt and attorney’s fees but dissents on the issue of custody.

18 modification of custody.” Heisinger, 243 So. 3d at 258 (¶40). That is why we remanded the

case for the chancellor to conduct a new Albright analysis and to make a new custody

decision—rather than simply affirming the award of custody to Priscilla or rendering an

award of custody to Adam. Id. at 258-59 (¶¶40, 43). Thus, the chancellor’s ultimate finding

that it was in B.H.’s best interest for Adam to have custody is entirely consistent with this

Court’s prior decision.

A. Emotional Ties and Continuity of Care

¶50. In this Court’s prior decision, we specifically held that the emotional ties and

continuity of care “factors may not be weighed in favor of Priscilla to any degree because

‘equity dictates’ that she not benefit from her own misconduct,” i.e., her repeated, wrongful

denial of Adam’s visitation. Id. at 258 (¶40) (quoting Story, 7 So. 3d at 298-99 (¶¶21-22)).

We held that at most, these factors should be “neutral.” Id. On remand, consistent with this

Court’s holding, the chancellor held that the factors were “neutral.” The chancellor

committed no error by following this Court’s instructions.

¶51. Priscilla essentially argues that this Court’s holding was not binding on remand—and

that the chancellor should have weighed these factors in her favor—because she finally

began allowing Adam regular visitation while the first appeal in this case was pending (about

a year before the trial on remand). We disagree. Priscilla complied with the visitation

provisions of the chancery court’s judgment only after Adam filed yet another contempt

petition while the case was pending on appeal. Her belated compliance does not alter our

prior holding that these factors should not be weighed in her favor.

19 B. Parenting Skills

¶52. Priscilla argues that the chancellor erred by finding that this factor favors Adam

because she has had primary responsibility for raising B.H., and there is no dispute that B.H.

is a healthy, well-adjusted, and well-behaved child, as well as an honor roll student. In

addition, although Priscilla admitted at trial that Adam was a good father, she continues to

assert various criticisms of him.

¶53. The chancellor found that this factor favored Adam because Priscilla had repeatedly

denied Adam visitation, failed to obtain a new birth certificate with Adam’s name, failed to

use Adam’s name in B.H.’s school records, and failed to utilize Dr. Whitcomb for counseling

for stress that (Priscilla claimed) B.H. was experiencing. The chancellor specifically found

“that Priscilla has intentionally and irresponsibly attempted to adversely impact the

relationship between Adam and B.H.” The chancellor’s findings are supported by substantial

evidence and are not clearly erroneous. While Priscilla appears to be a good and fit parent

in her own right, the chancellor did not abuse his discretion by finding that this factor favors

Adam based on Priscilla’s continued interference in B.H.’s relationship with her father.

C. Employment and Employment Responsibilities

¶54. The chancellor found that the employment responsibilities factor was neutral. On

appeal, Priscilla argues that the factor should favor her because she is a stay-at-home mother,

whereas Adam is an orthopaedic surgeon.

¶55. Priscilla was working in a dental office until she voluntarily quit just two weeks prior

to the trial on remand. Her husband, Shawn, had started a new job that required him to be

20 away from home for two out of every four weeks, leaving Priscilla to care for B.H., a teenage

stepson, a two-year-old, and a four-year-old.

¶56. Adam works from 8:30 a.m. to 4:30 p.m. four days per week (with Mondays off) and

testified that his on-call duty only rarely requires him to leave home. He testified that he

could take B.H. to school every morning, that he could pick her up from school on Monday

and from daycare the other weekdays, and that he could take her to all of her extracurricular

activities and be home with her in the evenings.

¶57. The parties’ respective lives and schedules are obviously different, but there is no

compelling evidence that either situation would be in B.H.’s best interest. Therefore, the

chancellor did not clearly err or abuse his discretion by finding this factor neutral.

D. Moral Fitness

¶58. The chancellor found that the moral fitness factor favored Adam, citing Priscilla’s

continued failure to use Adam’s surname in B.H.’s school and medical records. Although

Priscilla disagrees with the chancellor’s finding on this issue, there is substantial evidence

to support the chancellor’s factual finding, and we find no abuse of discretion by the

chancellor as to this factor.

E. Other Factors

¶59. Priscilla next argues that the chancellor did not give sufficient weight to the fact that

Mississippi law favors keeping siblings together. Priscilla testified that her other children

and B.H. have a close relationship and that B.H. views them as her full siblings, not step- or

half-siblings.

21 ¶60. “There is no rule that requires chancellors to keep siblings together. There is a

preference for keeping siblings together, but the paramount concern is the best interest of the

child.” Kimbrough v. Kimbrough, 76 So. 3d 715, 726 (¶64) (Miss. Ct. App. 2011). “In

essence, the rule from our case law is that the non-separation of a child from his or her

siblings is usually in a child’s best interest.” Owens v. Owens, 950 So. 2d 202, 212 (¶35)

(Miss. Ct. App. 2006). And “[a]lthough there is a preference for siblings to remain together,

this is only one factor” in a chancellor’s custody decision. Wells v. Wells, 35 So. 3d 1250,

1257 (¶28) (Miss. Ct. App. 2010). A desire to avoid “the separation of siblings should not

override a child’s best interest in a custody determination[.]” Owens, 950 So. 2d at 212

(¶35); see also Wells, 35 So. 3d at 1257 (¶27) (“As the chancellor found it would be in the

best interests of the children to award custody to [their father], it would be unfair to deny him

custody because it would separate [the children] from their half-brother.”).

¶61. In the present case, the chancellor did consider Priscilla’s testimony that B.H. had a

good relationship with her stepbrother and half-siblings. The chancellor also discussed

several decisions of this Court and the Supreme Court that have addressed this issue. The

chancellor ultimately found that Adam had “clearly shown circumstances contrary to the

assumption” that it is in B.H.’s best interests to remain with her step- and half-siblings. In

essence, the chancellor found that it was in B.H.’s best interest to be in Adam’s custody

notwithstanding that it would separate her from her stepbrother and half-siblings. The

chancellor’s finding on this issue is not clearly erroneous or an abuse of discretion.

¶62. In summary, the chancellor’s Albright analysis and his determination of B.H.’s best

22 interest were neither clearly erroneous nor an abuse of discretion. Therefore, we affirm

modification of custody to Adam.

F. The Dissent

¶63. Whereas Priscilla argues that the chancellor erred by not following this Court’s

instructions on remand (see supra Part I), the dissent asserts that we should reverse the

chancellor because he followed the holding of this Court’s prior unanimous opinion. We

decline to do so. As we put it in another case,

The original decision on appeal was [two] years ago. [Priscilla] neither sought rehearing in this court nor certiorari from the supreme court. Since that time further proceedings have been held in the trial court structured around our previous opinion. Based on what she argues should have been our conclusions [two] years ago, [Priscilla] requests that we reverse and remand again—not because the trial court failed to understand or comply with our remand order, but precisely because the court did understand and comply.

The reasons for the law of the case doctrine could not be more clearly presented. We will address what was determined before and how it affects what has returned on this second appeal. Only if an earlier conclusion is found to be manifestly and palpably erroneous will we deviate from it.

Pearson v. Columbus & Greenville Ry. Co., 737 So. 2d 390, 402 (¶¶44-45) (Miss. Ct. App.

1998) (paragraph numbering omitted).

¶64. This Court’s unanimous decision in the first appeal was not “manifestly and palpably

erroneous.” Id. To the contrary, it was a straightforward application of our 2008 decision

in Story, 7 So. 3d 295, 298-99 (¶¶21-22). Story squarely held that “equity dictates” that the

emotional ties and continuity of care factors should not favor a parent who has repeatedly

interfered with the other parent’s visitation and relationship with the child. Id.9 In Story, this

9 The dissent would also overrule Story. See post at ¶98.

23 Court reversed and remanded for a new Albright analysis for precisely that reason. Id. at 299

(¶23). In our prior opinion in this case, this Court did exactly the same. Heisinger, 243 So.

3d at 257-58 (¶¶34-40). Indeed, the relevant part of our opinion quoted Story verbatim and

then explained why this case was not materially distinguishable. Id.10

¶65. The dissent’s claim that Story and our prior opinion somehow tied the chancellor’s

hands (post at ¶97) is also incorrect. The Albright factors are not “a mathematical formula,”

and we have never suggested that a chancellor must award custody “to the parent who ‘wins’

the most factors.” Blakely, 88 So. 3d at 803 (¶17). Chancellors are required to consider the

Albright factors not because the factors dictate a result but rather “to ensure that the

chancellor follows a process that leads to consideration of all facts that are relevant to the

child’s best interest.” Vassar v. Vassar, 228 So. 3d 367, 375 (¶27) (Miss. Ct. App. 2017).

At the end of that process, it remains up to the chancellor to determine what custody

arrangement is in the best interest of the minor child involved.

¶66. Moreover, we made it very clear in our prior opinion that the conflicting evidence in

this case would support an award of custody to either Adam or Priscilla. Heisinger, 243 So.

3d at 258-59 (¶¶40-43). That is why, as we explained, we would “not substitute our

judgment for the chancellor’s” but were instead remanding the case for the chancellor to

10 The dissent’s assertion that the chancellor’s initial ruling in this case “complied with Story” (post at ¶95) is incorrect. We specifically explained in our prior opinion how the chancellor’s original ruling in this case tracked the ruling that we reversed in Story. Heisinger, 243 So. 3d at 258 (¶39). The dissent’s assertion that “[i]n Story, the chancellor failed to acknowledge or factor in the actions of the wrongdoer” (post at ¶93) is equally incorrect. As the Story opinion made clear, the chancellor in that case expressly acknowledged and considered the mother’s interference in his discussion of these factors. Story, 7 So. 3d at 298-99 (¶¶21-22).

24 determine what custody arrangement would be in B.H.’s best interest. Id. at 259 (¶43). The

chancellor in this case, who has since retired after thirty-seven years on the bench, entered

a detailed opinion on remand. His opinion made clear that he considered all relevant

evidence and determined that it was in B.H.’s “best interest” to modify custody and grant

custody to Adam. There is nothing to indicate that this experienced chancellor felt like his

hands were tied or misunderstood this Court’s opinion as dictating a particular result.

¶67. Finally, we address the dissent’s assertion that the chancellor did not “properly

weigh[]” certain “facts” in his Albright analysis. Post at ¶91. It is evident that the dissent

disagrees with the chancellor’s ruling on custody. However, “on appeal in a child custody

case, the issue is not whether this Court agrees with the chancellor’s ruling, but only whether

the chancellor’s ruling is supported by credible evidence.” Vassar, 228 So. 3d at 374 (¶24)

(quotation marks omitted). “[T]he chancellor,” not this Court, “has the ultimate discretion

to weigh the evidence the way he sees fit.” Johnson, 859 So. 2d at 1013-14 (¶36).

¶68. The chancellor specifically considered all of the various facts the dissent emphasizes

and simply weighed them differently than the dissent. In context, the chancellor’s ruling is

perfectly understandable, not clearly erroneous. For example, the dissent finds it compelling

that Priscilla is a “stay-at-home mother” and that B.H. “rode the bus home” and “did not

attend daycare” in Mississippi—whereas Adam is “unmarried” and will be B.H.’s “sole care

giver” in Oregon. Post at ¶¶89-90. However, Priscilla quit her job at a dental office just two

weeks before the trial on remand. In addition, Priscilla’s husband is away from home two

of every four weeks, meaning that half of the time Priscilla was the “sole care giver” for B.H.

25 and two small children. Adam testified that in Oregon, B.H. would go to daycare Monday

through Thursday for two to three hours after school.11 These facts are all relevant, and the

chancellor’s opinion expressly considered all of them. Obviously, however, a custody

arrangement may be in a child’s best interest even if it involves time at daycare.

¶69. As another example, the dissent repeatedly refers to the “church [B.H.] regularly

attended” in Mississippi. Post at ¶92. However, according to Priscilla, B.H. only began

attending that church about one month before the trial on remand. Adam testified that he also

attends church in Oregon. There is no evidence that B.H.’s spiritual or emotional well-being

will be harmed if she attends Adam’s church in Oregon rather than the church she attended

for one month in Mississippi. The same can be said of the various other activities that the

dissent cites, such as horseback riding, cheerleading, and beauty pageants. Adam testified

that B.H. had already attended dance classes when she visited him in Oregon, that he had

looked into other opportunities for her, and that he could take her to all the extracurricular

activities she enjoyed. Again, the chancellor’s opinion expressly considered these facts, but

the chancellor weighed them differently than the dissent. The chancellor did not abuse his

discretion or clearly err by doing so.

¶70. In summary, the chancellor (a) followed the prior unanimous decision of this Court,

(b) considered all relevant evidence, and (c) found, based on substantial evidence, that it was

11 As discussed above, Adam testified that he works from 8:30 a.m. to 4:30 p.m. four days per week and is only rarely required to go to the hospital when he is “on call.” There is nothing in the record to contradict Adam’s testimony, and the chancellor appears to have accepted it as fact. The dissent, in contrast, seems suspicious of Adam’s testimony (post at n.17), but that is not the role of an appellate court. See, e.g., Irle v. Foster, 175 So. 3d 1232, 1237 (¶22) (Miss. 2015).

26 in B.H.’s best interest to modify custody and grand Adam custody. Accordingly, we affirm

the chancellor’s ruling on custody.

IV. The chancellor was not required to appoint a new GAL.

¶71. Priscilla argues that the chancellor was required to appoint a new GAL because of Dr.

Whitcomb’s testimony during the trial on remand that she had “seen evidence of emotional

abuse.” On cross-examination, Dr. Whitcomb agreed that B.H. was a well-adjusted child.

She also agreed that B.H.’s “positive development” was at least partially attributable to

Priscilla’s parenting, although she also stated that she had “some issues with some of the

decisions that [Priscilla had] made” and Priscilla’s “extreme behavior.” Dr. Whitcomb then

testified as follows:

Q: . . . [B]ut you don’t see any evidence of abuse, do you?

A: I’ve seen evidence of emotional abuse.

Q: Okay. Have you seen any evidence of physical abuse?

A: No, no physical.

Q: Okay, and you’re saying that you’ve seen evidence of emotional abuse, yet she is well-adjusted and she is developing well?

A: She is developing well.

Q: Okay. So does a child who is developing well and is adjusted well, can they be emotionally abused and still have that positive development?

A: They can still have that hurt inside and . . . there can still be some emptiness there that’s disguised. . . . [T]here can still be some unresolved . . . issues going on within the child, but . . . she appears to be highly intelligent. She’s friendly; she’s kind. . . . [S]he has all those aspects of her personality. . . . I think that can override . . . some of the other issues.

27 This was the extent of Dr. Whitcomb’s testimony about “emotional abuse.” Dr. Whitcomb

did not elaborate as to what conduct by Priscilla concerned her. Nonetheless, Priscilla argues

that this testimony required the chancellor to appoint a new GAL sua sponte.12

¶72. “In child-custody cases where [allegations of] abuse and/or neglect are raised, the

chancellor’s decision to appoint a guardian ad litem may be mandatory or discretionary.”

Carter v. Carter, 204 So. 3d 747, 758-59 (¶50) (Miss. 2016). “The appointment is

mandatory where the allegations of abuse and/or neglect rise to the level of a ‘charge of

abuse and/or neglect,’ and in those cases ‘the court shall appoint a guardian ad litem for the

child as provided under [Mississippi Code Annotated section] 43-21-121, who shall be an

attorney.’” Id. at 759 (¶50) (quoting Miss. Code Ann. § 93-5-23 (Rev. 2013)). “In these

situations the chancellor is required to appoint a guardian ad litem, whether the parties

requested a guardian ad litem or not.” Id.

¶73. “However, under Mississippi Code Section 93-5-23, the chancellor is provided

discretion to determine if issues of abuse or neglect have sufficient factual basis to support

the appointment of a guardian ad litem.” Id. at (¶51). The statute gives “the chancellor some

discretion in determining whether there is a legitimate issue of neglect or abuse even in those

situations where one party elects to make such an assertion in the pleadings.” Id. (quoting

Johnson v. Johnson, 872 So. 2d 92, 94 (¶8) (Miss. Ct. App. 2004)). The chancellor is not

12 As noted above, attorney Frances Stephenson was appointed as the GAL in 2016 based on Priscilla’s allegations that Adam abused or neglected B.H. by causing or allowing her to be burned while she was in his care. Stephenson ultimately found that there was no merit to Priscilla’s allegations, and she was released from her appointment while the case was on appeal in 2017. Neither party asked the chancellor to appoint a GAL on remand.

28 required to “appoint[ ] . . . a guardian ad litem based merely on an unsubstantiated assertion

found in the pleadings of one of the parties.” Id. at (¶52) (quoting Johnson, 872 So. 2d at 94

(¶8)).

¶74. This Court recently summarized:

[T]he appointment of a GAL is mandatory only if there is a “sufficient factual basis to support” an allegation of abuse or neglect. The chancery court has “discretion” to determine whether such an allegation is “legitimate.” If the court concludes that there is no factual basis for the allegation, then the appointment of a GAL is not mandatory.

Brown v. Hewlett, 281 So. 3d 189, 197 (¶30) (Miss. Ct. App. 2019) (citations omitted)

(quoting Carter, 204 So. 3d at 759 (¶¶51, 53)); accord Monk v. Fountain, 296 So. 3d 761,

765 (¶16) (Miss. Ct. App. 2020).

¶75. Applying these precedents, we disagree with Priscilla that the chancellor was required

to appoint a GAL sua sponte.13 Neither party made a formal allegation of abuse. In essence,

Dr. Whitcomb expressed a concern that unspecified actions by Priscilla (presumably her

interference in B.H.’s relationship with Adam) could emotionally harm B.H. The chancellor

was within his discretion not to appoint a GAL based solely on Dr. Whitcomb’s concern.

V. The chancellor’s findings of contempt and award of attorney’s fees are supported by substantial evidence.

¶76. Adam filed three contempt petitions since the end of the first trial: in October 2016,

in March 2017, and in August 2018. Each petition alleged that Priscilla was in violation of

13 Although Priscilla did not request a GAL, the issue is not procedurally barred. “The mandatory appointment of a GAL in cases of abuse or neglect is to protect the child, not the parties.” Monk, 296 So. 3d at 765 (¶17). Therefore, in cases in which a GAL is mandatory, “the chancellor is required to appoint a guardian ad litem, whether the parties requested a guardian ad litem or not.” Id. (quoting Carter, 204 So. 3d at 759 (¶50)).

29 court orders. The first two petitions alleged violations of the 2015 Iowa order. Adam’s

August 2018 petition alleged violations of the October 2017 agreed order.

¶77. On remand, the chancellor found Priscilla in contempt on each of the three petitions.

The chancellor found that Priscilla violated the 2015 Iowa order and the October 2017 agreed

order by failing to obtain a new birth certificate showing B.H.’s surname as Riley-Heisinger.

The chancellor also found that Priscilla violated the 2015 order by denying Adam visitation

(prior to the October 2017 agreed order). The chancellor awarded Adam a judgment for

$8,000 in attorney’s fees based on Priscilla’s contempt.

¶78. On appeal, Priscilla primarily argues that the chancellor erred by considering events

that occurred prior to the October 2017 agreed order. In other sections of her brief, she also

challenges the chancellor’s findings of contempt. We find no error in the chancellor’s

findings or award of attorney’s fees.

¶79. To begin with, we reject Priscilla’s argument that the chancellor erred by finding her

in contempt and awarding attorney’s fees based on misconduct that predated the October

2017 agreed order. In the agreed order, the parties specifically stipulated that Adam’s then-

pending “claims and allegations of contempt against Priscilla [would be] held in abeyance

indefinitely subject to being later asserted and/or heard.” In addition, the chancellor’s pretrial

order on remand specifically set all three of Adam’s contempt petitions for trial. Therefore,

the chancellor did not err by addressing these issues following the trial on remand.

¶80. With respect to the chancellor’s specific findings of contempt, we note that “[w]hether

a party is in contempt is a question of fact to be decided on a case-by-case basis. A

30 chancellor has substantial discretion in deciding contempt matters because of the chancellor’s

temporal and visual proximity to the litigants.” Voss v. Doughty, 242 So. 3d 952, 958-59

(¶25) (Miss. Ct. App. 2018) (quotation marks omitted) (quoting Gilliland v. Gilliland, 984

So. 2d 364, 369-70 (¶19) (Miss. Ct. App. 2008)). “This Court will not reverse a contempt

citation where the [chancellor’s] findings are supported by substantial credible evidence.”

Riley v. Riley, 196 So. 3d 1159, 1162 (¶9) (Miss. Ct. App. 2016) (quoting Witters v. Witters,

864 So. 2d 999, 1004 (¶18) (Miss. Ct. App. 2004)).

¶81. The chancellor’s findings that Priscilla was in contempt for failing to change B.H.’s

birth certificate and use her correct name are supported by substantial evidence. The

chancellor noted that the Iowa court ruled that B.H.’s surname was Riley-Heisinger, and the

chancellor found that Priscilla had made no effort to ensure that B.H. went by that name. In

addition, the October 2017 agreed order specifically required Priscilla to obtain a new birth

certificate that would clearly show B.H.’s surname as “Riley-Heisinger.” Yet, the evidence

at trial showed that Priscilla made no real effort to comply with this requirement until

October 2018, i.e., shortly before the trial on remand. As of the trial on remand, Priscilla still

had not obtained a new birth certificate or provided Adam with an official copy of any birth

certificate. Thus, there is substantial evidence to support the chancellor’s finding of

contempt on this issue.

¶82. In addition, the chancellor found that Priscilla failed to comply with the 2015 Iowa

order’s visitation requirements and wrongfully denied Adam visitation in the aftermath of

the September 2016 trial. Specifically, the chancellor held that the 2015 order’s visitation

31 provisions remained in effect (until modified by the October 2017 agreed order), and the

chancellor found Priscilla in contempt for denying Adam visitation from March 2017 until

October 2017. Priscilla argues that she was entitled to deny Adam visitation because he

requested visits to begin and end on days other than Saturday. She contends that such

requests violated a 2013 Iowa order providing for one-week, Saturday-to-Saturday, visits.14

The chancellor rejected Priscilla’s argument, holding that the 2013 order was superseded by

the 2015 order’s visitation provisions, which permitted Adam to request two-week periods

of his “choosing.” We agree with the chancellor’s interpretation of the orders, and the

chancellor’s finding of contempt is again supported by substantial evidence.15

¶83. Because Priscilla was in contempt, Adam was entitled to an award of attorney’s fees.

In our prior decision in this case, we summarized the law governing such an award:

The matter of awarding attorney’s fees is largely entrusted to the sound discretion of the chancellor. When a party is held in contempt for violating a valid judgment of the court, attorney’s fees should be awarded to the party that has been forced to seek the court’s enforcement of its own judgment. Fees awarded on this basis, though, should not exceed the expense incurred as a result of the contemptuous conduct. That is, fees incurred litigating other matters—such as custody modification or child support—are not recoverable based on the contempt.

Heisinger, 243 So. 3d at 259 (¶45) (citations and quotation marks omitted).

14 On another occasion, in response to Priscilla’s repeated denials of his requests for visitation, Adam asked Priscilla to pick a two-week period that would be acceptable to her. Priscilla refused this offer as well. She testified that she refused because the 2015 order required Adam, not her, to select the dates of his visitation. 15 This issue is unfortunately similar to one that we addressed in the first appeal. See Heisinger, 243 So. 3d at 260-61 (¶49) (affirming the chancellor’s finding that Priscilla was in contempt for denying Adam visitation and rejecting Priscilla’s argument to the contrary because it was “based on frivolous interpretations of the [2015] Iowa order”).

32 ¶84. Adam’s attorney testified and presented a summary of his billing statements for fees

actually incurred by Adam related to the contempt petitions. Adam requested fees incurred

from October 2016 (when Priscilla again denied him visitation) through August 2018. He

excluded any charges related to the first appeal. He also did not request any fees for time

related to the actual trial on remand. He requested a total of $23,925 based on 105.1 hours

of attorney time at $225 per hour plus 3.75 hours of paralegal time at $75 per hour. The

chancellor found that Priscilla should not have to pay all of the fees paid by Adam but

awarded $8,000 in attorney’s fees for Priscilla’s contempt. There is substantial evidence to

support the chancellor’s award and finding that $8,000 was a reasonable amount for the

contempt petitions. See Miss. Code Ann. § 9-1-41 (Rev. 2014). Therefore, we also affirm

the award of attorney’s fees.

CONCLUSION

¶85. We affirm the chancellor’s modification of B.H.’s custody. The chancellor followed

our instructions on remand, and his Albright analysis and best-interest determination are

supported by substantial evidence and are not clearly erroneous. We also affirm the

chancellor’s finding of contempt and award of attorney’s fees to Adam. Priscilla’s various

arguments on appeal are without merit.

¶86. AFFIRMED.

CARLTON, P.J., GREENLEE AND WESTBROOKS, JJ., CONCUR. McCARTY, J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION. McDONALD, J., CONCURS IN PART AND DISSENTS IN PART WITHOUT SEPARATE WRITTEN OPINION. LAWRENCE, J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION, JOINED IN PART BY McDONALD AND McCARTY, JJ. BARNES, C.J., NOT

33 PARTICIPATING.

LAWRENCE, J., CONCURRING IN PART AND DISSENTING IN PART:

¶87. I agree with the majority that there was sufficient evidence to justify the chancery

court’s order of contempt against Priscilla and the payment of attorney’s fees. I disagree with

the majority in affirming the chancellor’s Albright16 analysis because I am concerned that it

was inadvertently constrained by this Court’s remand language in Heisinger v. Riley (Riley

I), 243 So. 3d 248 (Miss. Ct. App. 2018). I also disagree with the majority’s reliance on

Story, specifically where this Court ordered neutrality determinations on some of the Albright

factors on remand. In my opinion, that part of the Story holding impermissibly intrudes on

fact-finding decisions better left for chancellors.

¶88. The law concerning custody issues is well settled in Mississippi: “the polestar

consideration in child custody cases is the best interest and welfare of the child.” Albright,

437 So. 2d at1005. In aiding chancery courts to achieve that laudable goal, the supreme court

developed the Albright factors for courts to consider. Id. But those factors are not

exhaustive and are not completely outcome determinative. Id.

¶89. In the present case, the chancellor found the following facts were proven at trial and

recited them in his judgment. Priscilla and Adam were never married. B.H. was conceived

as a result of their relationship, which occurred while both were in the military and stationed

in Virginia. B.H. was a female child born in January 2012. On October 28, 2014, Priscilla

moved to Meridian, Mississippi. She lived in Meridian with her new husband, B.H., and

16 Albright v. Albright, 437 So. 2d 1003, 1005 (Miss. 1983).

34 B.H.’s step-siblings, J.R. and T.R. Priscilla and B.H. initially attended Arkadelphia Church

in Bailey, Mississippi, but changed to Antioch Southern Methodist Church because B.H.

liked the children’s program and several of her friends attended church there. B.H. attended

school and was an honor-roll student. Priscilla, a stay-at-home mother, took care of B.H.

during the day. B.H. did not attend daycare. Rather, B.H. rode the bus home each day, had

a snack, did homework, and then had playtime. She participated with friends in activities

such as horseback riding and cheerleading. She also participated in beauty pageants and won

several trophies. She was in good health. In addition, B.H. had a strong relationship with

her step-siblings and mother and had never been away from her mother more than three

weeks at a time. Overall, B.H. had a good life in Mississippi, where she excelled in school

and extracurricular activities. Most importantly, she was surrounded by friends and

family—the only family she had known since memory came to her.

¶90. Adam testified that he was an orthopedic surgeon living and working in La Grande,

Oregon. Adam explained that La Grande is a small rural type town which has one hospital

and approximately 15,000 people. Adam testified he worked from 8 to 4:30 four days a

week, Tuesday through Friday. Adam was unmarried and would be the sole care giver for

B.H. if she moved to Oregon. Instead of going home every day to her mother and step-

siblings after school, in Oregon, B.H. would go to daycare. Adam testified that on some days

when his work hours were long, his friends could assist him and pick up B.H. from daycare.

Adam testified he would split emergency calls with his other partners and explained that he

35 would be responsible for every third day or approximate ten days a month.17 In Oregon, B.H.

would have to essentially start anew with friends, schools, church, and activities without the

step-siblings and family with which she had lived the last four years of her eight years of life.

¶91. I dissent because I do not believe those facts were properly weighed in the

chancellor’s Albright analysis. Instead, I fear the weight was given to Priscilla’s contempt

for interfering with Adam’s visitation and not having B.H.’s birth certificate changed. To

be clear, I do not pardon or condone Priscilla’s actions. But in giving so much weight to

Priscilla’s actions, the chancellor, albeit unintentionally, punished the child for her mother’s

actions.

¶92. The supreme court has opined that “a change in custody will not be made for the

purpose of rewarding one parent or punishing the other.” Ash v. Ash, 622 So. 2d 1264,

1266 (Miss. 1993) (emphasis added). B.H. did none of the actions complained of by Adam

or found contemptuous by the court. Yet, she was taken as a young child and moved to

Oregon from a home and family she loved, from a school in which she excelled, from a

church she regularly attended, and from cheerleading, horseback riding, and beauty pageant

activities with friends she cherished.18

17 Adam explained that most calls just involved a phone call and would not affect his care and supervision of B.H. However, he also explained that on those days he was the on- call surgeon and he had B.H., he would simply send “emergent cases” that required immediate surgery to other hospitals. Whether his partners would acquiesce in such a loss of potential business proposition was not discussed at trial. 18 The majority’s argument about this opinion’s recitation of certain facts in the life of this eight-year-old child confuses the point of this opinion. I certainly not do opine that B.H. will not attend church, school, or have hobbies with new friends in Oregon. I am sure those things will eventually come to her. The issue is not whether the child will have new

36 ¶93. I fear the chancellor’s Albright analysis was irrevocably skewed by this Court’s

remand order in Riley I. The chancellor relied on this Court’s ruling in Riley I, which relied

on this Court’s ruling in Story v. Allen, 7 So. 3d 295 (Miss. Ct. App. 2008). There is no

doubt that the first part of the Story ruling was well intended. A wrongdoer should not

benefit from that wrong and the chancellor must consider the wrongdoer’s conduct in

weighing the Albright factors. In Story, the chancellor failed to acknowledge or factor in the

actions of the wrongdoer. This Court held the chancellor’s findings were “inconsistent” with

the factual record. Then, this Court went to the next step which is the part I fear problematic

for an Albright analysis. This Court then instructed the chancellor how to find a certain

factor by ordering the chancellor to at the very least find the factor as neutral.

¶94. Riley I relied on Story to remand with specific instructions for the chancellor to find

certain Albright factors neutral when a parent interferes with a court order. See Riley I, 243

So. 3d at 257-58 (¶36).19 In doing so, Riley I took Story’s well-intended pronouncement and

inadvertently altered and modified the chancellor’s discretion in performing an

Albright analysis on remand. Riley I ordered the chancellor to apply a neutral weight to two

factors because Priscilla was engaged in contemptuous conduct in violation of court orders.

friends eventually or a new church eventually—the issue is whether it was in her best interest that she no longer have those places, those friends, her mother, or step-siblings she has known most of her life in Mississippi. To be clear, this dissent does not presuppose the ultimate custody outcome. I merely mentioned those pertinent facts to explain the concerns that by ordering certain factors be declared neutral, this Court may have skewed the Albright analysis on remand in determining the larger scheme of the child’s best interest. 19 The Story opinion was not petitioned for writ of certiorari in the supreme court and, at present, stands as precedent for this Court until overruled.

37 While that conduct should absolutely be considered by the chancellor, I take issue with this

Court ordering a neutral application to a particular factor. This Court is not the decision

maker in custody matters. That role belongs to the chancellors. Our standard of review in

custody matters emphasizes that distinction. “In a custody case, ‘the chancellor has the

ultimate discretion to weigh the evidence the way he sees fit.’” Riley I, 243 So. 3d at 259

(¶43) (quoting Johnson v. Gray, 859 So. 2d 1006, 1013-14 (¶36) (Miss. 2003)). “We review

the chancellor’s decision for manifest error, giving deference to the weight that he assigned

each factor.” Id. (citing Smith v. Smith, 206 So. 3d 502, 513 (¶24) (Miss. 2016)). “We do

not ‘second guess’ the chancellor’s ultimate decision in the absence of some legal or manifest

error.” Id. (citing Irle v. Foster, 176 So. 3d 25, 31 (¶26) (Miss. Ct. App. 2013)).

¶95. I stand concerned that the precedent set in Riley I weakens the oft-quoted standards

listed above and places this Court in an inevitable position to second guess chancellors.

When a chancellor weighs the Albright factors, there are three possible outcomes that can be

attributed to each factor—favors father, favors mother, or is neutral. When this Court

eliminates any one of those three options or outright orders a certain finding on some of those

factors, the fact-finding role of the chancellor is inhibited. For example, in Riley I, the

chancellor complied with Story and obviously considered and factored Priscilla’s conduct

into his Albright analysis; it was clearly written in his opinion and even mentioned in this

Court’s opinion reversing the chancellor:

[W]hen the chancellor found that the continuity of care factor favored Priscilla, he reasoned as follows:

Priscilla has had the care of B.H. since the child was born and she has had the

38 primary care of B.H. since September 2013. Of course, she has had more care for B.H. than anticipated [since] September 2013 because she has denied Adam visitation. This Court finds that the continuity of care factor favors Priscilla as the custodial parent.

As to the emotional ties factor, the chancellor’s reasoning was similar:

Related to the continuity of care factor is the emotional ties of the parent and child factor. B.H. has stronger emotional ties with Priscilla than she has with Adam. However, Priscilla interfered with Adam’s development [of] emotional ties with B.H. when she refused and interrupted his visitation with B.H. This Court finds that the emotional ties of the parent and child factor favor Priscilla as the custodial parent, but Priscilla’s refusal and interruption with Adam’s visitation diminishes the significance of this factor.

Riley I, 243 So. 3d at 257-58 (¶¶37-38) (emphasis added). But that was not good enough.

This Court told the chancellor he had to find that factor at least neutral:

In addition, the chancellor did state that Priscilla’s misconduct “diminishes the significance” of the emotional ties factor to some unstated extent. However, in Story, this Court held that “equity dictates that the chancellor should have at least found this factor to be neutral.” As to both the continuity of care and emotional ties factors, the chancellor’s ruling is inconsistent with this Court’s holding in Story. These factors may not be weighed in favor of Priscilla to any degree because “equity dictates” that she not benefit from her own misconduct.

Id. at (¶39) (emphasis added) (citations omitted).

¶96. This Court remanded with the instructions for the chancellor to find two factors at

issue neutral due to one parent’s misconduct despite the fact that the chancellor clearly

considered the mother’s actions and determined that custody best rested with the mother. Id.

at (¶¶39-40). This Court should not “second guess” chancellors when they follow the law

and determine the best interest of the child. Otherwise, this Court puts itself on a slippery

slope by telling chancellors how to view certain factors when the chancellor is the one who

39 listens to the evidence and judges the credibility of the witnesses. That slippery slope could

someday justify this Court telling chancellors how to view other factors depending on the

facts of the particular case on appeal at that particular time. If that continues, then ultimately,

this Court is the one deciding custody cases and not the chancellor. While the first part of

the Story case was well intended and is good law and good policy, I am concerned that the

second part of the Story case, the order dictating how a chancellor should weigh certain

Albright factors on remand, muddies the principle that the best interest of the child should

be supreme.

¶97. I do not believe this Court should be in the business of telling chancellors how to view

or how to weigh certain factors. Again, I agree with the first part Story’s pronouncement that

a parent should not benefit from his or her wrongdoing and that the parent’s actions must and

should be factored in when considering the Albright factors. I disagree with the second part

that this Court should tell chancellors what weight to give that evidence or how certain

factors must be weighed on remand. There could be additional evidence on remand. There

could be credibility issues on remand. There could be other considerations on remand that

require a chancellor to weigh a certain factor in favor of the parent who has committed

wrongdoing. This Court should not presume to predict the evidence introduced on remand

by telling the chancellor he must find certain factors neutral. If the best interest of the child

is truly the goal and the “polestar” consideration, then we should not have to direct neutrality

as to certain factors when the chancellors, especially after the instruction of the Story case,

can weigh those factors in light of all of the parents’ actions and all of the evidence

40 presented. If a chancellor failed to consider what I call the Story corollary to the Albright

factors, then reversal should be ordered for consideration of the potential effect a parent’s

wrongdoing could have on the Albright factors. But what this Court should not do is send

the case back, tying the chancellor’s hands on remand by ordering a neutrality of a certain

factor when this Court does not know what additional information, if any, may be available

to the chancellor.20

¶98. Simply put, I think Riley I went too far in telling chancellors how to rule on certain

factors on remand, and this Court should withdraw from the second part of the Story

pronouncement. I respectfully dissent because I believe the chancellor’s decision in this case

should be reversed and this case should be remanded for a new Albright analysis free from

a command from this Court that certain factors be neutral or in Adam’s favor. Rather, the

chancellor should be allowed to consider all of the evidence in the manner he determines

under the Albright factors, give each factor what weight the evidence demands, including any

misconduct of the parties and thereby determine the best interest of the child.

McDONALD AND McCARTY, JJ., JOIN THIS OPINION IN PART.

20 The majority opinion and this dissent diverge on one very important issue. This dissent has serious concerns with the second part of Story; that the appellate court can order a chancellor to find certain factors neutral in a remand Albright analysis. That remand order from this Court could usurp the traditional fact-finding role of chancellors and has the potential to adversely impact the chancellor’s Albright analysis on remand, especially considering that the appellate court does not know what additional evidence or credibility issues the chancellor may receive on remand. This dissent simply argues that this Court should not compel a finding on any of the Albright factors, one way or another. The evidence and the law should guide the chancellor’s decision, and then confidence can ensue that the best interest of the child was determined.