IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2022-CA-01006-COA
ROBERT LANE McLELLAN, JR. APPELLANT
v.
DAWN RAINEY McLELLAN APPELLEE
DATE OF JUDGMENT: 08/10/2022 TRIAL JUDGE: HON. WILLIE JAMES PERKINS SR. COURT FROM WHICH APPEALED: LEFLORE COUNTY CHANCERY COURT ATTORNEY FOR APPELLANT: JONATHAN RYAN TAYLOR ATTORNEYS FOR APPELLEE: A. LEE ABRAHAM JR. JACOB MICHAEL JENKINS NATURE OF THE CASE: CIVIL - CUSTODY DISPOSITION: REVERSED, RENDERED, AND REMANDED - 04/16/2024 MOTION FOR REHEARING FILED:
BEFORE WILSON, P.J., WESTBROOKS AND SMITH, JJ.
WILSON, P.J., FOR THE COURT:
¶1. Dawn and Robert (Robbie) McLellan consented to irreconcilable differences divorce
and stipulated that the chancellor would determine custody of their three children. The
chancellor found that three Albright factors1 favored Robbie and that all other factors were
neutral. The chancellor then granted Robbie physical custody of the parties’ two teenage
sons but granted Dawn physical custody of their five-year-old daughter.2 On appeal, Robbie
argues that the chancellor abused his discretion and unjustifiably separated the children by
1 Albright v. Albright, 437 So. 2d 1003, 1005 (Miss. 1983). 2 The chancellor also granted the parties joint legal custody of all three children and granted both parties visitation. granting Dawn physical custody of their daughter. After review, we agree that the decision
to grant Dawn physical custody of the parties’ daughter was arbitrary and an abuse of
discretion, is not supported by substantial evidence, and unjustifiably separated the siblings.
Therefore, we reverse and render on that issue. We remand the case for the chancellor to
determine visitation for Dawn.
FACTS AND PROCEDURAL HISTORY
¶2. Dawn and Robbie married in 2005 and had three children: Frank (born in 2006), Joe
(born in 2007), and Ruth (born in 2017).3 In 2019, Dawn and Robbie separated. In 2021,
Robbie filed for divorce, and Dawn answered and filed a counterclaim for divorce. In 2022,
the parties consented to an irreconcilable differences divorce and stipulated that the
chancellor would determine custody of their children, visitation, and child support.
¶3. Post-separation, Dawn and Robbie temporarily divided custody of their children on
a voluntary basis without a court order. Frank lived with Dawn in Belzoni and attended
Humphreys Academy, while Joe lived with Robbie in Greenwood and attended Pillow
Academy.4 Dawn and Robbie alternated custody of Ruth every four days, and at the time of
trial, Ruth was attending pre-kindergarten at Pillow. Dawn and Robbie both testified that all
three children were rarely together under their temporary arrangement. Because both parties
wanted their children to live together regularly, their temporary arrangement was not
3 We use fictitious names for the minor children in the interest of their privacy. Tragically, Frank died while this appeal was pending. 4 Dawn’s mother, Liz Rainey, testified that Frank actually stayed with her “[m]ost of the time” when Dawn did not have Ruth, and even when Dawn did have Ruth, Frank stayed with Liz three to four days a week on average.
2 acceptable to either of them. Thus, they stipulated that the chancellor would decide the
custody of their children, and the chancellor heard two days of testimony on that issue.
¶4. On the first day of trial, Joe told the chancellor he wanted to live with Robbie5 because
Robbie is “more predictable to live with,” Joe can “count that [Robbie] is always going to
be there,” and Robbie “takes care of” him. Joe described his relationship with Robbie as
“good” and “stable.” Moreover, Joe said Robbie had good parenting skills and helped him
with his schoolwork. Joe testified that Robbie was also attentive to Ruth, taught Ruth her
letters and numbers, cooked, and did laundry. Joe thought it would be in his and his siblings’
best interests to live with Robbie.
¶5. Joe acknowledged he had struggled in some of his classes at Pillow Academy, had
“failed . . . one nine weeks in science,” and was required to attend summer school. He
testified that his grades were better when he attended Humphreys Academy in the seventh
grade but only because his classes at Humphreys covered material he had already learned “in
previous grades at Pillow.” Joe also testified that he studied just as hard at Pillow as he had
at Humphreys, but Pillow was more academically challenging than Humphreys. In addition,
Joe testified that Robbie requires him to study and helps him with homework daily and will
“ground” him if he “do[es] bad on a test or something.” Dawn acknowledged Joe had
“always struggled some academically,” even when he attended Humphreys and before the
parties separated. Joe believed he was getting a better education at Pillow, and Dawn and
her mother both acknowledged that Pillow was academically “better” than Humphreys.
5 Joe had previously signed a sworn statement that he wanted Robbie to be his custodial parent. The statement was admitted into evidence during the hearing.
3 ¶6. Diane McLellan, Robbie’s mother, echoed Joe’s testimony regarding Robbie’s good
parenting skills. Robbie lives only four blocks away from Diane, and they see one another
almost daily. Diane testified that both Joe and Ruth are very close to Robbie and respect him.
Diane ordinarily takes Joe and Ruth to school in the morning because Robbie has to be at
work at 6:30 a.m., but she testified that Robbie always has their clothes laid out, backpacks
ready, and lunches packed.
¶7. Joe was concerned about the prospect of living with Dawn because of her emotional
issues and a lack of structure at her house. Joe testified that on one occasion, he awoke in
the middle of the night at Dawn’s house and could not find Dawn because she had left him
and Ruth at home alone. He also testified that Dawn exhibited “road rage” and often cursed
while driving. He described Dawn as “kind of bipolar, because she’ll be just fine one
second, and she’ll drop something or forget where something is[,] she’ll start crying[,] and
then she’ll get mad all at once.”
¶8. Joe also testified that the curfew at Robbie’s house is 8 or 8:30 p.m. on school nights
and 9:30 or 10 p.m. on weekends, while Dawn allows Joe to stay out until midnight. Diane
similarly testified that at Dawn’s house, the children “are free to come and go as they please,”
“don’t really have a curfew,” and “are allowed to drink.”
¶9. Joe testified that under Dawn’s supervision, Frank drank beer, smoked marijuana, and
vaped. Joe knew that Dawn had caught Frank drinking and vaping. According to Joe, Dawn
also allowed Frank to drive his truck on public roads and highways without an adult before
he obtained his driver’s license. Joe testified that Dawn had allowed him and Ruth to ride
4 with Frank without an adult before Frank obtained his license. Joe testified that he had been
in a car with Frank and his friend while they were smoking marijuana.
¶10. While Frank was visiting Robbie’s home, Robbie found a vape, syringe, marijuana,
and rolling papers inside one of Frank’s bags. When Robbie confronted Frank about it,
Frank “said that Dawn already knew about it, knew he had done it before.” Frank then
returned to Dawn’s house. Frank told Dawn that the marijuana and vape were not his and
belonged to a friend. Dawn testified that she believed Frank and had seen no evidence that
he was using marijuana or vaping.
¶11. Robbie testified that Frank “prefers to stay [at Dawn’s house] because he has an easier
route to do things that he wants to do and not necessarily be disciplined.” He further
testified, “No doubt I would love for Frank to live with me,” “but he’s 16 years old” and
“wishes to live in Belzoni,” as “[t]hat’s where the majority of his friends are, where he’s been
going to school.” Robbie testified that Dawn was a “suitable parent” “for the most part,” and
he felt that if Frank were forced to live with him, Frank “would do nothing but rebel, and it
would be a problem for everyone.” Robbie also felt “it just wouldn’t be good for [Frank’s]
mental health to be [forced to be] somewhere he doesn’t want to be.” Accordingly, Robbie
did not request physical custody of Frank on the first day of trial.
¶12. Dawn has been involved in multiple verbal or physical altercations at Joe’s and Ruth’s
sporting events. On two different occasions, Dawn went into the dugout during a baseball
game while yelling and cursing at Robbie, who was coaching. At one of those games, Dawn
5 had seen “Maggie,” whom she believed to be Robbie’s “girlfriend,”6 sitting with Diane.
Dawn testified that she had already “had a discussion [with Maggie] about her sleeping with
[Robbie].” Dawn testified she was angry that she could not “show up to watch [Joe’s] game
without [Maggie] being thrown in [her] face.” Dawn admitted that she “probably was guilty
of saying a cuss word or two,” but she denied that she was “yelling, kicking, [or] screaming.”
However, Joe testified that Dawn “started yelling at Maggie,” and “cussing her out.”
According to Joe, Dawn “dropp[ed] the ‘F’ bomb and accus[ed Maggie] of doing stuff with
[Robbie]” in front of “maybe 10 [or] 15 people.” Joe testified that at another game Dawn
was “cussing” at Robbie during the game while Robbie was trying to coach third base.
¶13. Diane testified that on another occasion Dawn yelled at Maggie during a baseball
game and later assaulted her in the parking lot. According to Dawn, the altercation began
when Maggie approached her car as she was leaving with Ruth. Dawn claimed that as she
was trying to get into her car, Maggie spit on her. In response, she “grabbed [Maggie] by the
back of the head . . . and threw her down on the ground.” Dawn testified that she was then
confronted by two individuals, including “an old lady [who came] after [her] with a chair”
and a tall man who got in her face, cursed, and threatened her. Dawn testified that she left
the baseball fields quickly to “get [Ruth] to safety,” but she was arrested a couple of days
later as a result of the incident.
¶14. Joe and Diane testified about another incident when Dawn became angry in the
6 Robbie testified that he did not have a “girlfriend.” Joe also testified that Robbie did not have a girlfriend and that, to his knowledge, Maggie had never been to his house. Diane and Robbie’s friend Lee Wiggins also testified that, to their knowledge, Robbie did not have a girlfriend.
6 parking lot after a game and threw a drink in Robbie’s face. This incident occurred in front
of a large crowd, including Joe and Ruth. According to Diane, “Robbie was holding [Ruth],
[Ruth’s] teammates were around,” and Dawn “threw Coca-Cola all over everybody and was
screaming and cussing.” Diane testified that Ruth “was terrified and crying.” However,
Dawn testified that she threw only a “little water” at Robbie as she “shook [her] bottle at
him,” and Ruth spilled her own drink, which caused her to cry and scream.
¶15. Diane also testified that Dawn had pulled into Diane’s driveway behind Robbie and
Ruth, “yelling and screaming and cussing.” According to Diane, Dawn came onto her porch
and “pushed Robbie into the storm door with [Ruth] in his arms and hit him in the face with
her fist.” Diane testified that Ruth “was screaming and crying.” Diane took Ruth inside, and
Ruth “was so upset that she threw up on [Diane] and wet her pants.” Robbie testified that
Dawn “tried to snatch Ruth from [his] arms,” and Ruth “was screaming at [Dawn] . . . to
stop” and trying to tell Dawn “she was hurting her.”
¶16. In contrast, Dawn testified that she went to Diane’s house because Robbie would not
answer her phone calls, and she (Dawn) did not know where Ruth was. Dawn testified that
Robbie had just pulled into Diane’s driveway when she arrived, and he got out of his truck
and immediately began yelling at her. As Dawn removed Ruth from her car seat in Robbie’s
truck, she showed Ruth a photo of “Maggie,” and she asked Ruth, “[W]ho is this?” When
Ruth identified the woman as “Maggie,” Dawn “realized that [Ruth] had been around
Maggie.” At that point, according to Dawn, Robbie “shoved” her, “grabbed [Ruth] from
her[,] and took off towards the front door of [Diane’s] house.” Dawn testified that Robbie
7 grabbed her phone during the altercation and threw it inside the house. Diane testified that
she called the police, and the police arrived soon thereafter.
¶17. About six weeks after the first day of trial, Robbie filed a motion to reopen the
evidence, and the chancellor entered an agreed order granting the motion. The chancellor
then heard testimony from Dawn and Robbie about two events that occurred after the first
day of trial.
¶18. Robbie testified that Humphreys Academy’s headmaster had notified him that Frank
had failed a drug test, testing positive for cocaine and marijuana at a level indicating
“everyday [marijuana] usage for an unknown period of time.”7 Robbie stated that while he
had been “willing to let [Frank] live [with Dawn], as long as things could be all right,” Frank
“testing positive for cocaine . . . change[d] that whole perspective.” Robbie now believed
it would be in Frank’s best interest to live with him. Dawn testified that she had scheduled
a counselor for Frank to address his drug use. She also testified that she had begun checking
Frank’s room and truck and had “placed an app on [Frank’s] phone” that would “give [her]
notification” of “anything drug related, sex related, alcohol, [or] cussing.”
¶19. Robbie also testified about a recent incident at a restaurant in Greenwood. Robbie,
Dawn, their three children, Diane, and Robbie’s father all met for supper to celebrate Joe’s
7 Robbie testified that he “discussed the [drug test results] thoroughly with the headmaster,” who had “discussed it with the lab tech.” Dawn later objected to Robbie’s testimony about what the headmaster said the “lab tech” said. After Dawn objected, the chancellor instructed Robbie’s attorney not “to ask [Robbie] about what the headmaster said,” but the chancellor noted that Dawn “sat on [her] rights” by not objecting to Robbie’s prior testimony. The drug test results, which were admitted into evidence without objection, show that Frank testified positive for cocaine, cocaine metabolites, and THC metabolites at levels above the screening and confirmation cutoff levels.
8 fifteenth birthday. According to Robbie, the dinner itself was amicable and enjoyable. But
in the parking lot after dinner, Dawn “started yelling and hollering and cursing” and then
attacked Diane, punching her twice in the eye. Diane had to go to the doctor because her eye
was swollen to the point “[s]he couldn’t see out of it.” Photographs of Diane’s swollen eye
were admitted into evidence. According to Robbie, all three children witnessed the assault
and were upset, and Frank and Ruth were crying. Robbie testified that when Dawn attempted
to attack Diane again, Joe tried to stop her, and Dawn pushed Joe out of the way. The police
arrived, put Dawn in handcuffs, and placed her in a patrol car.
¶20. Dawn claimed that Diane started the altercation by yelling at Ruth in the parking lot.
According to Dawn, both Diane and Robbie then began yelling at Dawn, and Diane called
Dawn a “coke head in front of her kids.” Dawn responded by “slapp[ing]” Diane. Dawn
testified that Diane and Robbie then attempted to video the altercation, and Dawn wrested
Diane’s phone from her. The police then arrived and arrested Dawn for simple assault.
¶21. As noted above, Robbie did not request physical custody of Frank during the first day
of trial, but at the conclusion of the second day of trial, he requested custody of all three
children. Dawn also requested custody of all three children.
¶22. The chancellor subsequently entered an opinion and final judgment addressing
custody and related matters. The chancellor discussed each Albright factor, found that three
factors—parenting skills, moral fitness, and Joe’s preference—favored Robbie, and found
that all other factors were neutral. The chancellor then stated, “Based on the Albright factors,
. . . the parties shall have joint legal custody of the minor children, . . . [Robbie] shall have
9 paramount physical custody of [Frank and Joe,] and [Dawn] shall have paramount physical
custody of [Ruth.]” The chancellor also granted Robbie visitation with Ruth and granted
Dawn visitation with Frank and Joe. Each party was granted visitation every other weekend
and during holidays, spring break, and summer. Under the parties’ visitation schedules, all
three children would be together during all visitation periods, including every weekend.
¶23. Robbie filed a motion to alter or amend the judgment or for a new trial in which he
argued that the chancellor erred by (1) awarding Dawn custody of Ruth despite finding that
no Albright factors favored Dawn and (2) separating the siblings without making any
findings to justify the separation. The chancellor denied Robbie’s motion, reasoning that
there was no “per se rule” against separating siblings and that a “desire to avoid separation
of siblings should not override a child’s best interest in a custody determination.” The
chancellor stated that he had “considered all the evidence, including the fact that the parties
made an agreement wherein [Dawn] had custody of [Frank and Ruth,8] and [Robbie] had
custody of [Joe].” The chancellor stated he had also considered that Frank probably would
have remained in Dawn’s custody but for Frank’s failed drug test and Dawn’s “lack of
immediate response.” Finally, the chancellor stated he had considered that Robbie
“continued to allow [Joe] to participate in sports” even though Joe had failed a science class.
¶24. Robbie appealed. On appeal, Robbie raises the same issues he raised in his post-trial
motion to alter or amend the judgment or for a new trial.
8 The chancellor’s statement was incorrect with respect to Ruth. As discussed above, Dawn, Robbie, Diane, and Liz all testified that the parties’ temporary agreement was to share custody of Ruth, alternating custody every four days.
10 ANALYSIS
¶25. “This Court will not reverse the chancellor’s custody decision unless the chancellor
abused [his] discretion, was manifestly wrong, or clearly erroneous, or applied an erroneous
legal standard.” Smith v. Bellville, 301 So. 3d 678, 682 (¶8) (Miss. Ct. App. 2020) (quotation
marks and brackets omitted). “So long as there is substantial evidence in the record that, if
found credible by the chancellor, would provide support for the chancellor’s decision, this
Court may not intercede simply to substitute our collective opinion for that of the
chancellor.” Hammers v. Hammers, 890 So. 2d 944, 950 (¶14) (Miss. Ct. App. 2004). In
other words, the issue is not whether this Court “agrees with the chancellor’s ruling” but only
whether “substantial evidence” supports the chancellor’s ruling. Id. We review questions
of law de novo. Vassar v. Vassar, 228 So. 3d 367, 374 (¶23) (Miss. Ct. App. 2017).
¶26. “[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 party has had “continuity of care”; (3) the parties’ “parenting skills”; (4) the parties’
“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.
11 ¶27. The chancellor must address each applicable Albright factor, 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). Rather, “the
chancellor has the ultimate discretion to weigh the evidence the way he sees fit.” Johnson
v. Gray, 859 So. 2d 1006, 1013-14 (¶36) (Miss. 2003). Thus, we review the chancellor’s
application of the Albright factors for abuse of discretion, giving deference to the weight he
assigned each factor. Smith v. Smith, 206 So. 3d 502, 513 (¶24) (Miss. 2016).
¶28. While the Albright factors help to determine the best interest of the child, our law also
recognizes “a preference for keeping siblings together.” Kimbrough v. Kimbrough, 76 So.
3d 715, 726 (¶64) (Miss. Ct. App. 2011). To be sure, “the paramount concern [remains] the
best interest of the child,” id., and “the separation of siblings should not override a child’s
best interest.” Owens v. Owens, 950 So. 2d 202, 212 (¶35) (Miss. Ct. App. 2006). But
“siblings should be kept together whenever possible. In essence, the rule from our case law
is that the non-separation of a child from his or her sibling is usually in a child’s best
interest.” Id.9
9 In some cases, our Supreme Court has articulated the preference against separating siblings in even stronger terms. In Mixon v. Bullard, 217 So. 2d 28, 30-31 (Miss. 1968), the Supreme Court stated that a “court should in all cases attempt, insofar as possible, to keep the children together in a family unit. It is well recognized that the love and affection of a brother and sister at the ages of these children [(nine and thirteen)] is important in the lives of both of them and to deprive them of the association ordinarily would not be to their best interest.” In Sparkman v. Sparkman, 441 So. 2d 1361, 1362-63 (Miss. 1983), the Court stated that Mixon’s language, though “dicta,” “expresses a common sense recognition of the
12 ¶29. We review the chancellor’s decision in this case with these principles in mind. The
chancellor found that the parenting skills and moral fitness factors and Joe’s preference all
favored Robbie. Regarding parenting skills, the chancellor found that Robbie was more
“willing[] to hold [Frank] accountable for smoking . . . marijuana” and using cocaine and that
Dawn allowed Frank to drive a truck without a driver’s license. Regarding moral fitness, the
chancellor found that Dawn had been “in several altercations” at the children’s sporting
events and had been arrested for assaulting the children’s grandmother. In contrast, there
was no evidence of any similar behavior by Robbie. The chancellor also found that Joe
wanted to live with Robbie because Robbie “is predictable and more stable” than Dawn.
¶30. The chancellor found that the remaining Albright factors were neutral. He found that
“[p]rior to the separation, . . . both parties supported and cared for all minor children,” and
post-separation, they had divided responsibility pursuant to their shared custody arrangement.
He also found that both parties had jobs10 that allowed them to care for the children, as well
as family members who lived nearby who would help them. In addition, the chancellor found
that the “emotional ties” factor did not favor either party—although Robbie had a better
relationship with Joe, Dawn had a better relationship with Frank. Regarding the home,
school, and community record of the children, the chancellor noted that Dawn thought
ordinary facts of life, that in the absence of some unusual and compelling circumstance dictating otherwise, it is not in the best interest of children to be separated.” Finally, in Carson v. Natchez Children’s Home, 580 So. 2d 1248, 1257 (Miss. 1991), the Court stated that “the imperative that siblings should not be required to live apart” is “[a]lmost as strong” as the natural-parent presumption. 10 Robbie was employed as a welder for Viking Range. Dawn worked as a customer service representative for Heartland Catfish.
13 “sports may be the cause of [Joe’s] low grades” but that Robbie disagreed. The chancellor
found this factor did not favor either party. The chancellor deemed the remaining factors
neutral with relatively little discussion.
¶31. Although the chancellor’s original opinion included a sufficient discussion of the
Albright factors, the opinion did not mention or consider the law’s longstanding preference
for keeping siblings together.11 Moreover, following the chancellor’s discussion of the
Albright factors, the opinion simply declared—in a single sentence—that Robbie would have
custody of Frank and Joe, while Dawn would have custody of Ruth. The opinion did not
explain why Dawn should have custody of Ruth despite an Albright analysis that clearly
favored Robbie. Nor did the opinion explain why the children should be separated.
¶32. After Robbie raised these issues in his post-trial motion, the chancellor observed
(correctly) that there is no “per se rule” against separating siblings. The chancellor then
provided three justifications for separating Ruth from her brothers: (1) the parties’ temporary
“agreement wherein [Dawn] had custody of [Frank and Ruth,] and [Robbie] had custody of
[Joe]”; (2) the fact that but for Frank’s failed drug test and Dawn’s “lack of immediate
response,” Frank might “have remained in [Dawn’s] custody”; and (3) the fact that Robbie
“continued to allow [Joe] to participate in sports” despite his academic struggles. Finally,
the chancellor stated that “[t]he evidence revealed no issue with [Ruth]” and that it was “in
[Ruth’s] best interest” to be in Dawn’s custody.
¶33. The difficulty we have with the chancellor’s custody decision is that despite two
11 The chancellor’s Albright analysis concluded as follows: “Other Relevant Factors: The Court finds any other factors not considered . . . herein shall be considered neutral.”
14 opportunities to address these issues, the chancellor did not identify any factually accurate
reason for separating Ruth from her siblings or awarding custody to Dawn. The chancellor’s
first reason simply misstated the facts. As discussed above, the parties shared custody of
Ruth on an equal basis under their temporary agreement. As to the chancellor’s second
reason, neither Frank’s failed drug test nor Dawn’s “lack of immediate response” explains
why Dawn should be granted custody of Ruth. If anything, those facts weigh against granting
custody to Dawn. Finally, as to the chancellor’s third reason, all witnesses, including Dawn
and her mother, testified that Joe had always struggled in school—even before the parties
separated. All witnesses also agreed that his grades had dropped when he returned to Pillow
because Pillow was more academically challenging and a better school than Humphreys.
There was no evidence that Joe’s struggles were attributable to Robbie. To the contrary, Joe
testified that Robbie required him to study and helped him daily with his schoolwork.
¶34. As stated above, Albright does not require the chancellor to award custody “to the
parent who ‘wins’ the most factors.” Blakely, 88 So. 3d at 803 (¶17). Indeed, the Albright
“factors are not variables in a mathematical formula,” Smith, 206 So. 3d at 512 (¶24), and are
not “to be given equal weight in every case.” Divers v. Divers, 856 So. 2d 370, 376 (¶27)
(Miss. Ct. App. 2003). In addition, “the chancellor has the ultimate discretion to weigh the
evidence the way he sees fit,” Johnson, 859 So. 2d at 1013-14 (¶36), and even a “single
factor” may be so important to a child’s best interest or “weigh so heavily in favor of one
party that equity would require granting custody to that parent.” Divers, 856 So. 2d at 376
(¶27). But at the same time, “[t]he Albright factors are not to be used . . . in an arbitrary
15 manner.” Id.
¶35. Here, we cannot avoid the conclusion that the chancellor’s application of Albright was
arbitrary and an abuse of discretion. Substantial evidence supports the chancellor’s findings
that the parenting skills and moral fitness factors favor Robbie. The chancellor also properly
credited Joe’s testimony that Robbie is a more stable and dependable parent and provides a
more structured home environment than Dawn. These factors all strongly favored granting
custody of all three children to Robbie. In contrast, the chancellor identified no reason that
custody should be granted to Dawn. Given our deferential standard of review, we would
affirm if the chancellor had identified some reason, supported by the evidence, why it was
in Ruth’s best interest to be in Dawn’s custody. But absent any evidence or reason that the
chancellor’s decision is in Ruth’s best interest, we are compelled to say that the chancellor’s
decision was arbitrary and an abuse of discretion.12
¶36. In addition, our law clearly recognizes “a preference for keeping siblings together.”
Kimbrough, 76 So. 3d at 726 (¶64). The description of that preference has varied over time.
In some cases, our Supreme Court has referred to it as an “imperative” that applies “in the
12 See Miss. State Dep’t of Health v. Sw. Miss. Reg’l Med. Ctr., 580 So. 2d 1238, 1240 (Miss. 1991) (“An act is arbitrary when it is done without adequately determining principle; not done according to reason or judgment, but depending upon the will alone[.]”); White v. State, 742 So. 2d 1126, 1136 (¶42) (Miss. 1999) (“Judicial discretion is defined as a sound judgment which is not exercised arbitrarily, but with regard to what is right and equitable in circumstances and law, and which is directed by the reasoning conscience of the trial judge to just result. Rather than implying bad faith or an intentional wrong on the part of the trial judge, an abuse of discretion is viewed as a strict legal term that is clearly against logic and effect of such facts as are presented in support of the application or against the reasonable and probable deductions to be drawn from the facts disclosed upon the hearing.” (quotation marks and citations omitted)).
16 absence of some unusual and compelling circumstance.” Carson, 580 So. 2d at 1257;
Sparkman, 441 So. 2d at 1363. In other cases, we have said it “‘is only one factor’ to be
considered in making a custody award.” Davis v. Stevens, 85 So. 3d 943, 951 (¶35) (Miss.
Ct. App. 2012) (quoting Wells v. Wells, 35 So. 3d 1250, 1257 (¶28) (Miss. Ct. App. 2010)).
We also recognize that the preference “should not override a child’s best interest in a custody
determination.” Owens, 950 So. 2d at 212 (¶35). But regardless of the precise weight
attached to the preference, the chancellor’s decision or the evidence in the record should at
least provide some reason why a custody order that separates siblings is in the children’s best
interest.
¶37. In this case, the chancellor properly granted Robbie custody of Frank and Joe because
the totality of the Albright factors clearly favored Robbie. But the chancellor then granted
Dawn custody of Ruth without articulating any rationale for doing so. Given our deferential
standard of review, we would affirm if the chancellor’s opinion or the evidence in the record
provided some logical reason for separating these children. However, as recounted above,
the chancellor identified no logical reason for this result—even after Robbie filed a post-trial
motion raising this precise issue. For this reason as well, we are bound to conclude that the
decision was arbitrary and an abuse of discretion on this record. Sparkman, 441 So. 2d at
1363 (reversing and rendering a custody order that separated siblings because neither the
chancellor’s opinion nor anything in the record “indicate[d] any compelling reason” for
separating the children); Sootin v. Sootin, 737 So. 2d 1022, 1027-28 (¶15) (Miss. Ct. App.
1998) (reversing a custody order that separated siblings because the chancellor “gave no
17 specific basis for the split custody,” and “the record itself contain[ed] no substantial evidence
to account for the ruling”); see also Owens, 950 So. 2d at 207 (¶16) (affirming a custody
order that kept siblings together because “our case law makes it clear that keeping siblings
together is assumed to be in the best interest of a child, absent a showing that the
circumstances in a particular case are to the contrary”).
CONCLUSION
¶38. The decision to grant Dawn custody of Ruth was arbitrary and an abuse of discretion
and is not supported by substantial evidence because neither the chancellor’s opinion nor any
evidence in the record provides a logical reason for the decision or for separating these
siblings. Accordingly, the decision to grant custody of Ruth to Dawn is reversed and
rendered. Robbie is granted custody of Ruth, and the case is remanded for further
proceedings consistent with this opinion, including a determination of Dawn’s visitation.
¶39. REVERSED, RENDERED, AND REMANDED.
BARNES, C.J., CARLTON, P.J., GREENLEE, WESTBROOKS, McDONALD, LAWRENCE, McCARTY, SMITH AND EMFINGER, JJ., CONCUR.