Davis v. Stevens

85 So.3d 943

Sarah DAVIS, Appellant

v.Jason STEVENS, Appellee.

No. 2010–CA–01400–COA.

Court of Appeals of Mississippi.

April 17, 2012.

Wendy C. Hollingsworth, attorney for appellant.

Jennifer Sekul Harris, Ocean Springs, attorney for appellee.

Before LEE, C.J., BARNES and MAXWELL, JJ.

MAXWELL, J., for the Court:

¶ 1. Sarah Davis appeals the Harrison County Chancery Court's award of physical custody of her six-year-old daughter, Amy Stevens, to the child's father, Jason Stevens.¹ She contests several aspects of the chancellor's Albright² analysis, including the determination Davis deliberately made false accusations of sexual abuse against Stevens. Finding no manifest error in the chancellor's judgment, we affirm.

FACTS

¶ 2. Davis and Stevens dated for several years but never married. The two had one child together but separated when the child, Amy, was approximately ten months old. Soon after the separation, Davis filed a paternity suit against Stevens. Stevens admitted paternity but counterclaimed for legal and physical custody of Amy. The chancellor awarded primary physical custody to Stevens, with the parties having joint legal custody. The chancellor granted visitation to Davis and ordered her to pay child support based on the child-support guidelines. On appeal, Davis challenges the chancellor's Albright findings.

STANDARD OF REVIEW

¶ 3. "Chancellors are afforded wide latitude in fashioning equitable remedies in domestic relations matters, and their decisions will not be reversed if the findings of fact are supported by substantial credible evidence in the record." Henderson v. Henderson, 757 So.2d 285, 289 (¶ 19) (Miss.2000). We will not disturb a chancellor's factual findings unless the chancellor's decision was manifestly wrong or clearly erroneous, or the chancellor applied an improper legal standard. Wallace v. Wallace, 12 So.3d 572, 575 (¶ 12) (Miss.Ct.App.2009). We do not substitute our "judgment for that of the chancellor, even if [we disagree] with the findings of fact and would arrive at a different conclusion." Coggin v. Coggin, 837 So.2d 772, 774 (¶ 3) (Miss.Ct.App.2003). When reviewing a chancellor's interpretation and application of the law, our standard of review is de novo. Tucker v. Prisock, 791 So.2d 190, 192 (¶ 10) (Miss.2001).

DISCUSSION

I. Chancellor's Albright Findings

¶ 4. "In all cases involving child custody ... the polestar consideration is the best interest and welfare of the child." D.M. v. D.R., 62 So.3d 920, 923 (¶ 11) (Miss.2011). The Albright factors are a guide for chancellors in weighing the facts to determine the child's best interest. Lee v. Lee, 798 So.2d 1284, 1288 (¶ 15) (Miss.2001) (citing Albright, 437 So.2d at 1005). An Albright analysis is not, by any means, a mathematical equation. Id. And the factors are not meant to be weighed equally in every case. Divers v. Divers, 856 So.2d 370, 376 (¶ 27) (Miss.Ct.App.2003). In some cases, one or two factors may weigh more heavily and control the custody determination. Id. The supreme court has held that "[a]ll the [ Albright ] factors are important, but 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).

¶ 5. The Albright factors include: (1) the child's age, health, and sex; (2) which parent had the continuity of care before the separation; (3) parenting skills and the willingness and capacity to provide the primary child care; (4) each parent's employment and its responsibilities; (5) each parent's physical and mental health and age; (6) the emotional ties between the child and each parent; (7) each parent's moral fitness; (8) the child's home, school, and community record; (9) the child's preference, if the child is of sufficient age to express a preference by law; (10) the stability of the home environment; and (11) any other equitable factor relevant to the parent-child relationship. Albright, 437 So.2d at 1005.

¶ 6. Here, the chancellor made findings of fact and conclusions of law on each Albright factor, finding four of the factors favored Stevens, three favored Davis, and two favored neither party. The chancellor observed the demeanor of both Davis and Stevens as well as Amy's demeanor with each of her parents. Considering the totality of the circumstances, the chancellor held Stevens should be awarded primary physical custody of Amy.

(1) Age, Health, and Sex of the Child

¶ 7. Finding this factor favored Stevens, the chancellor focused in part on the fact that since a young age Amy has suffered from allergies and other respiratory ailments. He found these health issues were "caused by her exposure to second hand smoke of primarily her mother and[,] now, also her step-father." The chancellor also addressed Amy's "repeated vaginal infections brought on by bubble baths," which he determined Amy "apparently has continued to be given [by Davis] even though physicians have advised against them." Amy has also suffered from acid reflux and constipation. The chancellor noted Stevens's testimony that these symptoms subside when she is provided a healthy diet while in his care.

(2) Continuity of Care

¶ 8. The chancellor found this factor favored Davis, pointing out that Davis has cared for Amy "the vast majority of the time" since the parties' relationship ended when Amy was about ten months old. Since that time, Stevens's visitation has been "sporadic at best" until recently when court-ordered visitation has occurred on a regular basis.

(3) Parenting Skills/Willingness and Capacity to Provide Primary Care

¶ 9. Concluding this factor favored Stevens, the chancellor emphasized that Davis has taken Amy "to far too many doctors and other health care specialists for non-issues and has failed to care for the real medical and psychological needs of the child." The chancellor again emphasized the negative impact of Davis's cigarette smoking around Amy, and that Stevens's care "dramatically improves" the child's health.

(4) Employment and Employment Responsibilities

¶ 10. The chancellor found this factor favored Davis in part because Stevens's income is "sporadic and his work is usually out of town," although Stevens is home each night. Davis works part time at her husband's family electrical business. Stevens has been paying $300 per month in child support.

(5) Physical and Mental Health and Age of the Parents

¶ 11. The chancellor found this factor slightly favored Stevens. He noted Stevens does not smoke and is in good health. The chancellor also pointed out that Stevens's spouse, until recently, was a smoker. The chancellor found Davis has smoked cigarettes since Amy was born, despite being advised that quitting this habit would greatly improve her daughter's health. The chancellor also observed that Davis's husband smokes cigarettes. Davis suffers from hyperlipidemia and hypertension requiring her to take medication. Further, the chancellor noted Davis's "tendency towards anorexia," and that Davis had been diagnosed with "anxiety disorder and mixed personality disorder with dependent features."

(6) Emotional Ties of Parent and Child

¶ 12. The chancellor found this factor favored Stevens but that both parents have a bond with the child. The chancellor emphasized that Davis had denied Stevens reasonable visitation with Amy until ordered by the court. The chancellor concluded Davis had "wrongfully" and "deliberately" accused Stevens of sexually abusing their child. As a result, [e]xtensive investigations and testing of [Amy] were required costing thousands of dollars of public funds." Amy "was separated from both parents and exposed to further questioning by experts, as well as being wrongfully denied a relationship with her father." The chancellor found the investigation "was injurious to [Amy]," and that she "will probably require years of therapy to recover from the experience." The chancellor commented that the evidence suggests "the child is carrying the burden of her mother's psychiatric disabilities and is adversely affected by her mother's insecurities." The chancellor found that despite Davis's actions, Stevens has developed a "very strong bond" with his daughter since the court-ordered visitation.

(7) Moral Fitness

¶ 13. Again noting Davis's false accusations of sexual abuse which were "drawn out over an extended period of time," the chancellor found this factor favored Stevens.

(8) Home, School, and Community Record of the Child

¶ 14. The chancellor found this factor favored neither party, acknowledging that Amy "is a very bright child who has not yet attended school."

(9) Preference of the Child

¶ 15. The chancellor found this factor inapplicable due to Amy's young age.

(10) Stability of Home Environment

¶ 16. The chancellor found this factor favored Davis in part because she "has a longer history of both marriage and a home."

(11) Other Relevant Factors

¶ 17. Under this factor, the chancellor repeated many of the same observations he had discussed when addressing other factors. The chancellor again emphasized the "false and unsubstantiated claims of sexual abuse against [Stevens]."

II. Davis's Arguments

¶ 18. Davis takes issue with several aspects of the chancellor's judgment. She contends the chancellor erroneously found Davis initiated baseless claims of sexual abuse against Stevens and gave this consideration excessive weight. And she makes several factor-specific challenges to the chancellor's Albright findings. She finally contends the chancellor's rejection of the guardian ad litem's recommendation regarding custody was unsupported by adequate findings.

A. Unsubstantiated Allegations of Child Sexual Abuse

¶ 19. Davis's primary challenge concerns the chancellor's conclusion that she deliberately falsely accused Stevens of sexually abusing their child.

¶ 20. In explaining how the accusations arose, Davis testified she had taken Amy to a licensed social worker, Kathy Roberts, because Amy was having "emotional issues" with visitation. They met with...