Hendrix v. Whitt

373 So.3d 778

Heather HENDRIX, Appellant

v.Jacob WHITT, Appellee

NO. 2022-CA-00611-COA

Court of Appeals of Mississippi.

10/31/2023

GEORGE COUNTY CHANCERY COURT, HON. D. NEIL HARRIS SR., JUDGE

ATTORNEY FOR APPELLANT: CAMERON MATTHEW McCORMICK, Pascagoula

ATTORNEYS FOR APPELLEE: MATTHEW STEPHEN LOTT WILLIAM BRYAN BEDWELL

BEFORE BARNES, C.J., McDONALD AND SMITH, JJ.

McDONALD, J., FOR THE COURT:

¶1. Heather Hendrix appeals from the George County Chancery Court’s judgment granting custody of her minor child, TCW, to the child’s father, Jacob Whitt.¹ Hendrix contends that the chancery court erred by failing to determine the best interest of the child according to the Albright² factors and by treating the case as one of custody modification instead of an initial determination of custody. After a review of the record and the arguments of counsel, we reverse the chancery court’s judgment and remand for further proceedings consistent with this opinion.

Facts

¶2. Hendrix and Whitt lived together off and on between 2013 and 2019. They never married, but together they had one child, TCW. After they separated, the parties managed to share custody of TCW while the child was very young. But when TCW reached school age, Whitt sought a court order giving him custody, and the chancery court was positioned to decide what was best for the child.

¶3. The parties’ relationship began in 2013 when Whitt moved in with Hendrix and her parents in Baton Rouge, Louisiana, Whitt worked as a welder, and Hendrix worked as a waitress at Red, Lobster. According to Whitt, when the restaurant cut her hours, Hendrix quit. She worked briefly at a hotel as a cleaning lady, but that job was short-lived.

¶4. Sometime in 2015, the couple moved to Gulfport, Mississippi, where Hendrix worked briefly for a trucking company and then became pregnant. When TCW was born in September 2015, Whitt signed the birth certificate, acknowledging that he was the child’s father. Hendrix experienced medical complications before and after TCW’s birth. During the pregnancy, she developed preeclampsia, and then after the birth, fluid built up around her heart. She underwent gallbladder surgery and remained in the hospital for two extra weeks. According to her, these complications led to her having a tubal ligation.

¶5. In addition to these physical medical problems, Hendrix suffered from post-partum depression, which Whitt said lasted for years. Hendrix admitted her struggles, and Whitt’s parents helped by taking TCW to live with them for several months shortly after the child’s birth. Whitt said that this began a pattern of the child staying with his parents for extended lengths of time and then staying with him and/or Hendrix for other periods. In 2016, the three of them lived with Whitt’s parents in Lucedale, Mississippi, for a while, but then Hendrix left to live with her mother in Baton Rouge. According to Whitt, Hendrix later had an altercation with her mother and moved to Gulfport. Afterward, Hendrix took TCW and moved to South Carolina for a few months. Whitt said he sometimes would go visit TCW there, and at other times, he brought TCW back to Mississippi to stay with him at his parents’ home. By the end of the year, Hendrix and the child finally returned to live in Mississippi with Whitt and his parents.

¶6. In 2017, Whitt moved to Tennessee for work, and Hendrix and TCW joined him. A year later, in 2018, they moved to Baton Rouge; where Whitt found an out-of-state job that required him to be gone for twenty-eight days at a time. Whitt said that during this time, TCW would periodically stay with his parents, then sometimes with Hendrix, and at other times with Hendrix’s mother. But Whitt said that because he did not like leaving his child for so long, he found another job so he could be home every night.

¶7. During these years, Whitt contended that he was TCW’s primary caregiver even though Hendrix did help him. To support his claim, Whitt presented a reconstructed calendar that he and his mother had prepared to show the dates and times that TCW had been in Whitt’s or his parents’ custody, going back to September 2015. Whitt also said that when he would bring the child back from staying at his parents’ home, Hendrix wanted to keep TCW only for a short time before she said she could not handle him. Whitt said Hendrix never objected to his taking the child to stay with his parents, and this back-and-forth pattern continued even when Whitt and Hendrix moved to Tennessee for a year. Whitt said that TCW would have to stay with his parents for one to two weeks at a time because Hendrix would get overwhelmed or because she was recuperating from a medical problem. Hendrix confirmed that since the tubal ligation, she experienced continuing medical complications that ultimately resulted in her having a hysterectomy in February 2018. She said that these medical issues affected her ability to care for TCW for a time because, for example, after surgery, she was limited to lifting no more than ten pounds.

¶8. Hendrix disagreed with Whitt’s characterization of her care for the child when she was not limited by her medical conditions. Although Hendrix admitted that she needed help when she suffered from postpartum depression, she said she did not get help from Whitt. She stated that when the child was a baby, the child’s room had a full-size bed where she slept so she could get up and tend to TCW. This arrangement enabled Whitt to sleep alone in their bedroom so he could be rested when he got up for work. Hendrix contended that she was the one who changed the child’s diapers, bathed him, and fed him. She said that Whitt never cared for TCW without assistance from either her or his parents. Hendrix testified that she taught TCW the alphabet, and shapes and that by the time the child was two, TCW could count to thirty. However, Hendrix admitted that Whitt was a very involved father and that Whitt’s parents, who kept the child for weeks on end, were also a part of the child’s life.

¶9. In 2019, when they were still living in Baton Rouge, Hendrix’s parents bought a bar and pool hall. Whitt said Hendrix started going to the pool hall two to three times a week and staying until midnight. He said that he would be home taking care of TCW if the child was not with his parents. Hendrix countered that when her parents bought the bar, she worked, as a bartender’s assistant on weekends. She said she would go to the bar one other night during the week and play pool from 7 p.m. to 11 p.m. But she said Whitt often went with her when TCW was staying with Whitt’s parents.

¶10. Whitt and Hendrix finally separated in May 2019. Initially Whitt moved into his own apartment in Baton Rouge, but then in July 2019, he moved back to Lucedale, Mississippi, to live with his parents. Whitt said that he took TCW with him and the child stayed with him and his parents until mid-August. TCW then returned to Louisiana to live with Hendrix and he started attending daycare, which Whitt paid for. At this point, Hendrix was living with her parents.

Pre-litigation Custody Agreement

¶11. In the fall of 2019, the parties signed an agreement that Hendrix drafted concerning TCW’s custody. Whitt said this agreement came about because his truck broke down and he asked Hendrix for the ear he was paying for and had let her use. According to Whitt, when he asked for the vehicle, Hendrix became angry. Hendrix told him that in order for him to "get everything," meaning his car, his TV, and his computer, he would need to sign an agreement concerning TCW. According to Whitt, Hendrix told him that if he did not sign the agreement, she would keep TCW and he would have to take her to court if he wanted custody. Whitt said that he signed the agreement because it gave him custody of TCW, which is what he really wanted.

¶12. Although she admitted that she told Whitt he had to sign the agreement or she would keep TCW and Whitt would have to go to court, Hendrix said she drafted the agreement because she was starting school, and she wanted something in writing concerning TCW’s custody. Hendrix said that on her school days, she would have to get up at 4:30 in the morning and would not get home until 6:00 p.m. Because she would be in school Wednesdays through Saturdays, Hendrix said Whitt would have the child. She would have TCW on the other days. However, the agreement only provided that each parent would have the child on "specified days" without identifying the particular days. Significantly, the agreement specifically stated that Whitt would be the child’s "primary custodian." Hendrix understood that per this agreement, TCW would be in Mississippi most of the week. The agreement was set to end in September 2020 when Hendrix graduated.

¶13. Despite the terms of the agreement, Whitt said that TCW pretty much lived with him and his parents thereafter. Whitt said he would take TCW to visit Hendrix on weekends when she asked. At that point, Hendrix was living with her parents. Whitt testified that sometimes the child would stay the weekend; other times Hendrix only wanted to visit for a few hours. After the visit, Whitt would drive the child back with him to his parents’ home in Lucedale.

¶14. Between December 2019 and March 2020, Whitt worked out-of-state in Pennsylvania. He testified that when he came home at Christmas, he took TCW to visit Hendrix. He then returned to work and learned that after Christmas Hendrix’s parents had made her leave their, home. Whitt stated that afterward, Hendrix saw the child only once in February for a few hours. Although Hendrix had some video chats with the child, to Whitt’s knowledge, she did not often ask to see the child. Hendrix disagreed and said that Whitt’s parents brought the child to visit Hendrix in Baton Rouge once but that they often refused her requests for video chats.³

¶15. In March 2020, Whitt’s job sent him home because of COVID-19. Although Hendrix asked him to take TCW to visit her in...