Thomas E. Ethridge, III v. Christy Ward Ethridge

226 So. 3d 1261, 2017 WL 4251655, 2017 Miss. App. LEXIS 576
CourtCourt of Appeals of Mississippi
DecidedSeptember 26, 2017
DocketNO. 2016-CA-00785-COA
StatusPublished
Cited by5 cases

This text of 226 So. 3d 1261 (Thomas E. Ethridge, III v. Christy Ward Ethridge) 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
Thomas E. Ethridge, III v. Christy Ward Ethridge, 226 So. 3d 1261, 2017 WL 4251655, 2017 Miss. App. LEXIS 576 (Mich. Ct. App. 2017).

Opinion

IRVING, P.J.,

FOR THE COURT:

¶ 1. Thomas Ethridge III appeals the judgment of the Forrest County Chancery Court, arguing that the court erred in awarding Christy Ethridge physical custody of their minor child and in not awarding him a new trial after learning of Christy’s alleged perjured testimony.

¶ 2. Finding no error, we affirm.

FACTS

¶ 3. Thomas and Christy were married February 20, 2015, and one child was born to the marriage. Thomas and Christy filed competing complaints for divorce, and the chancery court consolidated the complaints. The parties later withdrew all fault grounds and agreed to a divorce on the ground of irreconcilable differences, leaving the issue of custody, among other issues, to be determined by the chancery court. At the conclusion of the trial, the court conducted an on-the-record Al-bright 1 analysis to determine custody and visitation. The court awarded physical custody to Christy and joint legal custody to Christy and Thomas.

¶4. After the court’s ruling, Thomas filed a motion for reconsideration pursuant to Mississippi Rules of Civil Procedure 59 and 60, arguing that Christy perjured herself during her testimony and, given the Albright analysis, he should have -been awarded custody of the child or more extensive visitation. He contended that the failure of the trial court to award custody to him was based solely upon the court’s excessive reliance upon the tender-years doctrine and was therefore- an abuse of discretion. Thomas’s motion was denied, and this appeal followed.

DISCUSSION

¶ 5. “In reviewing a child custody decision, we will affirm unless the chancellor was manifestly wrong, [the decision] was clearly erroneous, or [the chancellor] applied an erroneous legal standard. Error arises if the chancellor’s .decision is not supported by substantial evidence in the record.” Limbaugh v. Limbaugh, 749 So.2d 1244, 1246 (¶ 9) (Miss. Ct. App. 1999).

¶ 6. Before discussing the issues raised by Thomas, Christy has raised an issue that requires addressing. She argues that Thomas’s notice of appeal states that he is appealing from the April 26, 2016 ruling on his motion for a new trial. The notice does not state that he is appealing from the judgment of divorce and custody that was entered by the court on January 5, 2016. Therefore, she argues the notice of appeal is limited to the April 26, 2016 order, and the custody issue is not properly before the court.

¶7. We disagree. Thomas timely filed his motion for reconsideration of the January 5, 2016 judgment of divorce; therefore, the January 5, 2016 judgment did not become final and appealable until the court disposed .of the motion on April 26, 2016. Thomas’s notice of appeal reflects that he is appealing the denial of relief sought in all of his pleadings and all relief granted to Christy. Consequently, the issues that Thomas asserts on appeal are properly before this Court, as those issues were placed before, the chancery court during the course of the trial and in Thomas’s timely filed motion for a new trial.

I. Custody and Visitation

¶ 8. Thomas argues that the trial court incorrectly applied the tender-years doctrine and the fact that he is a male, when it decided the issues of custody and visitation, and, in so doing, incorrectly considered and applied the Albright factors. He notes that the chancellor stated that “both parents can certainly care for, feed, bathe, change diapers, rock, hold, put to sleep, [and] get up at night with their child when she is with them.” He contends that there was no testimony ever presented by any witness, including Christy, that he was incapable of caring for his child. In spite of all of this testimony regarding his ability to care for the child, the court denied him custody and limited his visitation until the child reaches the age of twenty-four mopths.

¶9. Next, Thomas argues that in the absence of the tender-years doctrine, he would have been awarded either physical custody or “standard” visitation with his daughter. He further argues that such a limitation of visitation based upon his gender and the tender-years doctrine is an abuse of discretion, and in the absence of any evidence of a need for restrictions on the visitation to protect the child from harm, the chancellor committed reversible error,

¶ 10. Christy responds that the court did not abuse its discretion by awarding her physical custody, nor did the court improperly rely on the tender-years doctrine, despite Thomas’s representations to the contrary. The child was only eight months old at the time of the custody determination, clearly a child of “tender years.” She notes that, even though the tender-years doctrine has been weakened, “there is still a presumption that a mother is generally better suited to raise a young child.” See Passmore v. Passmore, 820 So.2d 747, 750 (¶ 9) (Miss. Ct. App. 2002). Therefore, according to Christy, the court’s reliance on the tender-years doctrine was not improper. In addition, she notes that out of all the Albright factors addressed by the chancellor, two were in her favor and the rest were neutral. Although not a delineated factor, the chancellor also stated that “personal values” were in Christy’s favor because of Thomas’s alcohol consumption.

¶ 11. In response to Thomas’s arguments regarding visitation, Christy states that the court did not restrict his visitation. She states that the court awarded him all reasonable visitation as the parties could agree upon but, at a niinimum, the schedule contained in the judgment of divorce.

¶ 12. In reviewing the chancellor’s thorough on-the-record analysis of the Albright factors, we are satisfied that he considered all applicable facts and law before he reached his decision. Despite Thomas’s argument’s that the court relied too heavily on the tender-years doctrine in determining custody, the chancellor stated the following: “[T]he [court] is aware of ... a presumption under the law that used to be what is called' the [t]ender[-][y]ears [doctrine that still applies[,] but not with the weight that it did previously.” See Law v. Page, 618 So.2d 96, 101 (Miss. 1993). The chancellor also indicated his thorough understanding that the tender-years doctrine “is only one factor out of the numerous Albright factors” and is-not a “presumption that the best interests of the child in general should favor the mother ....” The court further acknowledged that “a child is no longer of tender years when that child can be equally cared for by persons other than the mother.” (Quoting Mercier v. Mercier, 717 So.2d 304, 307 (¶ 15) (Miss. 1998)).

¶ 13. Lastly, the court declared that “the Albright analysis is not a formula[,] and it does not involve who wins how many factors to get custody. It is a balancing test and an analysis that the law requires for the [c]ourt to consider custody .... ” See O’Briant v. O’Briant, 99 So.3d 802, 805 (¶ 15) (Miss. Ct. App. 2012). '“[T]he chancellor has the ultimate discretion to weigh the evidence the way he sees fit.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Stephanie Scott v. Nicholas Boudreau
Court of Appeals of Mississippi, 2023
Houston Corey Grantham v. Julia Taylor Ginn
Court of Appeals of Mississippi, 2023
Bryan Avants v. Shawn Hamilton
Court of Appeals of Mississippi, 2019
Robert O. Baumbach v. Jennifer Anne Baumbach
242 So. 3d 193 (Court of Appeals of Mississippi, 2018)

Cite This Page — Counsel Stack

Bluebook (online)
226 So. 3d 1261, 2017 WL 4251655, 2017 Miss. App. LEXIS 576, Counsel Stack Legal Research, https://law.counselstack.com/opinion/thomas-e-ethridge-iii-v-christy-ward-ethridge-missctapp-2017.