Story v. Allen

7 So. 3d 295, 2008 Miss. App. LEXIS 738, 2008 WL 5146388
CourtCourt of Appeals of Mississippi
DecidedDecember 9, 2008
DocketNo. 2007-CA-00312-COA
StatusPublished
Cited by5 cases

This text of 7 So. 3d 295 (Story v. Allen) is published on Counsel Stack Legal Research, covering Court of Appeals of Mississippi primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Story v. Allen, 7 So. 3d 295, 2008 Miss. App. LEXIS 738, 2008 WL 5146388 (Mich. Ct. App. 2008).

Opinion

GRIFFIS, J.,

for the Court.

¶ 1. Randy T. Story filed a petition to modify custody and to hold Cindy F. Allen in contempt because she repeatedly interfered with his court-ordered visitation with his daughter, Francesca Haze Allen. The chancellor granted Randy’s petition for contempt, but he denied Randy’s petition to modify custody. On appeal, Randy argues that the chancellor committed manifest error in finding that it was in Francesca’s best interest to remain in Cindy’s custody. We reverse and remand for sufficient findings consistent with this opinion.

FACTS

¶ 2. In an order dated January 12, 2000, both Randy and Cindy agreed that Randy is Francesca’s father. The order provided that Cindy was to have physical custody of Francesca, and Randy was to have standard visitation.

¶3. Since the date that the order was entered, Cindy has repeatedly interfered with Randy’s visitation. On March 23, 2000, the chancery court found Cindy to be in contempt of the agreed order because she and Francesca moved, and Cindy told Randy that she and Francesca were moving to an address that Randy later determined was false. The chancellor ordered Cindy to pay Randy’s attorney’s fees and expenses. Again, in December 2001, Cindy was held in contempt for not adding Randy’s name to Francesca’s birth certificate.

¶ 4. In 2002, Cindy filed a complaint with the Hinds County Youth Court accusing Randy of sexually abusing Francesca. The Hinds County Youth Court case was closed in October 2003, and no government agency brought criminal proceedings against Randy for sexual abuse. From the institution of the youth court proceedings until 2004, Randy had only supervised contact with Francesca during his visitation.

¶ 5. In the summer of 2006, Cindy again interfered with Randy’s visitation. She told Randy that Francesca needed to attend summer school because her grades were bad. The school’s records revealed that Francesca had adequate grades, and she was scheduled to proceed to the next grade.

¶ 6. Cindy also interfered with Randy’s telephonic visitation. During the trial, Randy stated that Cindy would not answer the phone when he called Francesca during the hours authorized by the court. Randy produced his phone records, which support this contention.

¶ 7. On December 9, 2005, Randy informed Cindy that he wanted to exercise his Christmas visitation and that he would pick up Francesca in Casper, Wyoming where Cindy and Francesca lived. After Randy traveled to Wyoming, he learned that Francesca was at Cindy’s brother’s house in Mississippi. Randy testified that he had planned to take Francesca to his parent’s house. Instead, Randy spent that Christmas alone.

¶ 8. After the conclusion of the trial, the chancellor found Cindy to be in contempt. The chancellor ordered that “(A) [Cindy] shall strictly comply with all orders of this Court including this Order and shall foster a good father/daughter relationship with [Randy] and Francesca. (B) [Randy] is awarded a judgment against [Cindy] for $31,285.24 for attomeyfs] fees and expenses.”

¶ 9. Also, in the order, the chancellor determined that there had been a material [297]*297change in circumstances that adversely affected Francesca. The chancellor then conducted an Albright analysis. The chancellor ended his Albright analysis by stating, “[d]espite [Cindy’s] conduct, the Court, with serious reservation, believes that Francesca’s best interest is served by [Cindy] having ... physical custody. The Court assures [Randy] that her further interference with [Randy’s] relationship with his daughter will have serious consequences.” (Emphasis added). It is from this order that Randy now appeals.

STANDARD OF REVIEW

¶ 10. “In domestic relations cases, [the appellate court’s] scope of review is limited by the substantial evidence/manifest error rule.” Samples v. Davis, 904 So.2d 1061, 1063-64(¶ 9) (Miss.2004) (citing Jundoosing v. Jundoosing, 826 So.2d 85, 88(¶ 10) (Miss.2002)). “[We] will not disturb the chancellor’s opinion when supported by substantial evidence unless the chancellor abused his discretion, was manifestly wrong, clearly erroneous, or an erroneous legal standard was applied.” Id at 1064(¶ 9) (quoting Holloman v. Holloman, 691 So.2d 897, 898 (Miss.1996)).

ANALYSIS

¶ 11. In Mabus v. Mabus, 847 So.2d 815, 818(¶ 8) (Miss.2003) (citations omitted), the supreme court stated the legal standard for a child custody modification proceeding is as follows:

[The] burden of proof is on the movant to show by a preponderance of the evidence that a material change in circumstances has occurred in the custodial home.
In the ordinary modification proceeding, 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 interests mandate a change of custody.

¶ 12. The chancellor determined that Cindy’s intentional interference with Francesca’s relationship with Randy constituted a material change in circumstances which adversely affected Francesca. The chancellor, however, determined that it was in Francesca’s best interest for Cindy to retain physical custody. Randy argues that this determination constitutes manifest error.

¶ 13. The supreme court has enumerated several factors to help chancellors determine what is in the “best interest” of the child in a custody dispute. Albright v. Albright, 437 So.2d 1003, 1005 (Miss.1983). These factors include:

[age,] health, and sex of the child; a determination of the parent that has had the continuity of care prior to the separation; which has the best parenting skills and which has the willingness and capacity to provide primary child care; the employment of the parent and responsibilities of that employment; physical and mental health and age of the parents; emotional ties of parent and child; moral fitness of parents; the home, school and community record of the child; the preference of the child at the age sufficient to express a preference by law; stability of home environment and employment of each parent, and other factors relevant to the parent-child relationship.

Id. at 1005. The Albright factors are not to be treated as “the equivalent of a mathematical formula.” Lee v. Lee, 798 So.2d 1284, 1288(¶ 15) (Miss.2001).

¶ 14. During his Albright analysis, the chancellor concluded that the following factors favored Cindy: the continuity of care; the emotional ties of parent and child; and [298]*298the home, school, and community record of the child. The chancellor then concluded that the following factors favored Randy: the stability and responsibilities of employment, moral fitness of the parent, and the stability of the home environment. The chancellor found all other factors to be neutral and allowed Cindy to retain custody.

¶ 15. While addressing a case similar to this one, our supreme court stated that:

a non-custodial parent’s right to visitation is a “right more precious than any property right.” One parent ... cannot be permitted to unilaterally deny the other’s right to visit with his child.

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Bluebook (online)
7 So. 3d 295, 2008 Miss. App. LEXIS 738, 2008 WL 5146388, Counsel Stack Legal Research, https://law.counselstack.com/opinion/story-v-allen-missctapp-2008.