Scott v. Le

373 So.3d 1067

Nannette Leighanne SCOTT, Appellant

v.Chris LE, Appellee

NO. 2022-CA-00887-COA

Court of Appeals of Mississippi.

11/14/2023

HARRISON COUNTY CHANCERY COURT, SECOND JUDICIAL DISTRICT, HON. MARGARET ALFONSO, JUDGE

ATTORNEY FOR APPELLANT: WILLIAM BRIAN ATCHISON

ATTORNEY FOR APPELLEE: MARK VINCENT WATTS, Biloxi

BEFORE CARLTON, P.J., McCARTY AND SMITH, JJ.

McCARTY, J., FOR THE COURT:

¶1. After moving to Virginia and getting married, a mother sought physical custody of her young daughter. The father of the child counterclaimed, arguing his family life was more stable and also seeking physical custody. The trial court found in favor of the father. Now the mother appeals, claiming the application of the Albright factors was flawed. Finding the chancery court’s decision was supported by substantial evidence, we affirm.

FACTS

¶2. Nannette Scott and Chris Le never married, but their relationship resulted in a child, Megan,¹ in 2013. At the time of the Megan’s birth, Nannette and Chris lived together at Chris’s mother’s house in Ocean Springs. The couple stayed there for approximately four months before ending their relationship. After the split, Nannette and her daughter stayed at her grandfather’s house in Biloxi. During this time, Megan remained with Nannette during the week, and Chris would have her each weekend. So for really all of Megan’s life, her parents lived separately.

¶3. In 2016, the parties agreed to joint legal and physical custody of Megan, which was ratified by the chancery court. The parties agreed to rotate custody during the Thanksgiving holiday as well as split and rotate custody during the Christmas holiday. Additionally, Chris was ordered to pay $200 per month in child support. This arrangement continued until March 2020 when Nannette moved to New Orleans with her then-boyfriend.

¶4. Nannette moved to New Orleans when Megan was six years old. Her motivation was to "provide a better life for [her] daughter," as she was offered a higher-paying job. Because Nannette did not want to "uproot" Megan with only "three months left in the school year," Nannette did not take her daughter with her to Louisiana. Instead, Megan remained with her father in Ocean Springs during the week, and Nannette drove to pick her up each weekend.

¶5. In December 2020, Nannette’s boyfriend, a member of the Navy, received orders stationing him at Norfolk, Virginia. Nannette then moved for a second time, joining him in Virginia. The couple mar- ried later that same month. Soon after, Nannette joined the Navy herself.

¶6. Throughout the transitions in her mother’s life, Megan remained with Chris in Mississippi. In 2021, she visited her mother in Virginia, where she stayed for the summer.

¶7. At the end of August that year, Nannette entered boot camp. She did not physically see her daughter until the following summer when Megan visited Virginia again.

PROCEDURAL HISTORY

¶8. Nannette sought a change in custody in January 2022. She asked the court for sole physical custody of Megan, alleging a material change in circumstances occurred since the original agreed order. Chris counterclaimed, also alleging a material change in circumstances and seeking sole physical custody of Megan.

¶9. After finding a material change in circumstances, the chancery court conducted an analysis to determine the best interest of the child. Both Nannette and Chris testified at trial, as well as Nannette’s husband and Chris’ mother. After the hearing, the chancery court awarded Chris sole physical custody of Megan. Aggrieved, Nannette appealed.

STANDARD OF REVIEW

[1–3] ¶10. Our standard of review in child custody cases is limited. Gateley v. Gateley, 158 So. 3d 296, 300 (¶19) (Miss. 2015). And "our polestar consideration must be the best interest of the child." Montgomery v. Montgomery, 20 So. 3d 39, 42 (¶9) (Miss. Ct. App. 2009). "[I]t is not our role to substitute our judgment for the chancellor’s." Id. "[W]e must affirm the chancellor’s findings of fact if they are supported by substantial evidence unless the chancellor abused his discretion, was manifestly wrong, [or] clearly erroneous or [if the chancellor applied] an erroneous legal standard …." Gateley, 158 So. 3d at 300 (¶19) (internal quotation marks omitted).

DISCUSSION

The Albright findings were supported by substantial evidence.

¶11. Nannette presents us with two assignments of error on appeal, both of which are focused on the same argument: whether the chancery court applied the Albright factors correctly.

¶12. Both parties had joint physical custody of Megan prior to the modification proceedings. In cases where modification of joint physical custody is sought, "a material change that makes the arrangement unworkable, such as one parent’s relocation" is deemed to be a triggering event. Deborah H. Bell, Bell on Mississippi Family Law § 12.12[5][a], at 468 (3d ed. 2020). Our Supreme Court as well as this Court have long recognized that relocation of one joint custodian "will almost always be a material change in circumstances warranting a change to sole physical custody in one parent." Id.; see Lackey v. Fuller, 755 So. 2d 1083, 1088-89 (¶27) (Miss. 2000) (finding mother’s move to New York made exchange of custody every two weeks inconceivable); Sobieske v. Preslar, 755 So. 2d 410, 413 (¶12) (Miss. 2000) (modifying joint custody after mother decided to move to Atlanta); McRee v. McRee, 723 So. 2d 1217, 1219-20 (¶11) (Miss. Ct. App. 1998) (finding mother’s move to Texas made alternating joint custody impractical).

[4] ¶13. Here, both parties sought modification based on Nannette’s move to Virginia, arguing it made the original joint custody arrangement "unworkable." This constitutes a material change in circum- stances, which requires an Albright analysis.

[5] ¶14. This Court has long held "that the polestar consideration in child custody cases is the best interest and welfare of the child." Albrigkt v. Albright, 437 So. 2d 1003, 1005 (Miss. 1983). "To determine the best interest of the child, Mississippi courts are guided by the factors set forth in Albright." Martin v. Martin, 282 So. 3d 703, 708 (¶16) (Miss. Ct. App. 2019). The Albright factors are as follows:

(1) age, sex and health of the child; (2) which parent had the "continuity of care prior to the separation;" (3) parenting skills; (4) each parent’s "willingness and capacity to provide primary child care;" (5) the parent’s employment and its associated responsibilities; (6) physical and mental health and age of the parents; (7) "emotional ties of parent and child;" (8) "moral fitness of parents;" (9) the child’s "home, school, and community record;" (10) "preference of the child at the age sufficient to express a preference by law;" (11) "the stability of the home environment and employment of each parent;" and (12) any other "factors relevant to the parent-child relationship."

Hackler v. Hackler, 296 So, 3d 773, 777 (¶19) (Miss. Ct. App. 2020) (quoting Albright, 437 So. 2d at 1005).

¶15. Nannette attacks most of the factors that were weighed either in favor of Chris or were found to be neutral. We address each challenged factor in turn.

1. Age, Bex, and Health of Child

[6] ¶16. The chancery court found this factor favored neither parent. Nannette argues this factor should have weighed in her favor. Specifically, she points to the tender-years doctrine, arguing that since Megan "will enter puberty" in a few years she will "need her mother to answer any questions." She also points to Megan’s medical documents, arguing she provided the "only evidence presented during trial regarding medical and dental treatment" of the child.

[7] ¶17. "However, it is well established that the tender-years doctrine is only a presumption and one of several factors to be considered." Case v. Case, 339 So. 3d 796, 804 (¶18) (Miss. Ct. App. 2022) (citing Mercier v. Mercier, 717 So. 2d 304, 307 (¶15) (Miss. 1998)).

¶18. By the close of trial, Megan was eight years old. Additionally, Chris testified that he has a large extended family who live about "ten minutes" from one another and "get together often." He also lives with his mother and stepfather, Megan’s grandparents.

¶19. Although Nannette presented evidence she had obtained medical treatment for Megan, Chris also testified that he took her to the pediatrician and to the dentist "every three months."

¶20. The chancery court ultimately found this factor favored neither parent. After review, we find that there is substantial evidence to support this conclusion.

2. Continuity of Care

[8] ¶21. The chancery court found this factor favored Chris because he took care of Megan and all her needs since Nannette’s move to New Orleans in 2020. Nannette argues this factor should have weighed in her favor because her work schedule allows her to take better care of Megan. She also asserts that although she was not required to pay child support, she paid for all Megan’s needs while the child was with her.

¶22. This Court has affirmed a chancery court’s finding in favor of a father as to continuity of care when he "had temporary physical custody of [a child] for the two years preceding the final judgment." Hackler, 296 So. 3d at 777 (¶22).

¶23. Chris testified that despite his work schedule, he still takes Megan to school and picks her up. On nights he cannot put Megan to bed because he is working, Chris’ parents help out. Chris has lived with his parents for the entirety of Megan’s life, and they "work with him" to care for Megan. Chris further testified that he cooks for Megan and helps her get ready for bed and school. He also takes her to the doctor and dentist.

¶24. The chancery court found Nannette had not even physically seen her daughter from August 2, 2021, through May 24, 2022. And since Nannette’s move in 2020, she had "not provided any school clothing, school supplies, or child support to Chris" for Megan. The chancery court noted it was clear that she "did not take the initiative to assist in...