Shirley v. Whitehead

283 So.3d 736

Melvin SHIRLEY Jr., a Minor, BY AND THROUGH His Next Friend and Mother, Eva SHIRLEY, Appellant

v.Marcheyell WHITEHEAD, a Minor, BY AND THROUGH Her Next Friend and Mother, Jennifer MORGAN, Appellee

NO. 2018-CA-00568-COA

Court of Appeals of Mississippi.

October 15, 2019

ATTORNEY FOR APPELLANT: GARY GOODWIN, COLUMBUS

ATTORNEY FOR APPELLEE: LISA LYNN MEGGS, OXFORD

BEFORE J. WILSON, P.J., TINDELL AND LAWRENCE, JJ.

J. WILSON, P.J., FOR THE COURT:

¶1. Melvin Shirley Jr. and Marcheyell Whitehead had a daughter, Paisley, in 2014. Shirley and Whitehead were both minors and were not married or dating when Paisley was born. When Paisley was five months old, Whitehead filed a petition for custody, and the chancellor granted her temporary custody with visitation for Shirley. The chancellor also appointed a "best interests" guardian ad litem ("GAL") for Paisley.

¶2. The GAL found that the issue of custody was a close call but recommended that the court award physical custody to Shirley. However, after a trial and a thorough Albright analysis,¹ the chancellor granted permanent physical custody to Whitehead with visitation for Shirley. On appeal, Shirley argues that the chancellor's findings are not supported by substantial evidence and that the chancellor abused his discretion by awarding custody to Whitehead. We find no reversible error and affirm.

FACTS AND PROCEDURAL HISTORY

¶3. Whitehead became pregnant with Shirley's child while they were still in high school. She gave birth to their daughter, Paisley, in 2014. When Paisley was born, Whitehead and Shirley were no longer dating. Whitehead and Paisley initially lived with LaRhonda Weatherspoon, a close family friend, in Columbus. Shirley lived with his mother in Columbus when Paisley was born, but he later moved to Jackson to attend Belhaven University, where he was on the football team. Shirley visited Paisley and Whitehead every day during the first few weeks after Paisley's birth, but he visited less often when Whitehead started dating another man. Shirley later left Belhaven and moved back to Columbus, where he found a full-time job and took some online courses.

¶4. In September 2014, Whitehead and Paisley moved to Arkansas to live with Whitehead's mother, Jennifer Wallace. About two weeks later, Weatherspoon asked if Paisley could visit her in Columbus. Whitehead agreed, and Weatherspoon drove to Arkansas and returned to Mississippi with Paisley. On October 13, 2014, Weatherspoon enrolled Paisley in a daycare in Columbus.

¶5. On October 24, 2014, Shirley attempted to sign Paisley out of daycare. The police were called, but after Shirley showed them a birth certificate identifying him as Paisley's father, he was allowed to leave with her. On October 29, Whitehead filed a petition for custody and other relief and a petition for a writ of habeas corpus. Shirley answered and also sought custody of Paisley.

¶6. In December 2014, the chancellor granted Whitehead temporary physical custody of Paisley with specified visitation for Shirley. The chancellor also ordered the parties not to take Paisley out of state without prior court approval. Finally, the chancellor appointed a GAL to investigate and make recommendations regarding Paisley's "best interests."

¶7. The GAL interviewed Whitehead and Shirley and their respective mothers. She also reviewed Whitehead's deposition, text messages and Facebook posts, photographs, a video of a fight between Whitehead and another woman, and Paisley's medical records. After her investigation, the GAL prepared a report that included an Albright analysis. The GAL found that two factors favored Whitehead, three factors favored Shirley, and all other factors were neutral. The GAL stated that she was "leaning toward" recommending Shirley as Paisley's custodial parent, but she reserved her final recommendation until after trial. After hearing the evidence at trial, the GAL did not change her recommendation.

¶8. A one-day trial on custody was held in August 2017. Whitehead testified that she had moved four times since Paisley's birth. As noted above, she moved to Arkansas to live with her mother in September 2014. She moved back to Columbus the next month due to the dispute over Paisley's custody. Whitehead remained in Columbus until approximately May 2016, when she moved to Texas. Around November 2016, she moved to Gautier, Mississippi, to live with her mother, who had relocated there.

¶9. At the time of trial, Whitehead was living in a three-bedroom apartment in Gautier with Paisley and her son from another relationship. She was working the night shift at the front desk of a hotel while also taking classes at Virginia College in Biloxi. Paisley was in daycare while Whitehead was in school. Whitehead's mother kept Paisley when Whitehead worked at night.

¶10. Whitehead admitted that there was a five-month period beginning around November 2016, when she did not allow Shirley to see Paisley. Whitehead testified that she withheld visitation because Shirley was allowing a woman who had allegedly assaulted her to spend time with Paisley.² Whitehead admitted at trial that she was wrong to withhold visitation.

¶11. Whitehead's mother (Wallace) testified that she keeps Paisley when Whitehead has to work at night. Wallace lives near Whitehead, and she testified that Whitehead is a good mother and takes good care of her children while working and going to school.

¶12. At the time of trial, Shirley was living with his mother in Columbus and working full-time. He claimed that he had been unable to continue college in Jackson because of the custody dispute. His current job required him to travel four days per week, but he testified that he was about to get a new job as a correctional officer at the Lowndes County Detention Center, which would not require him to travel. He testified that he took care of Paisley when she was with him and that he loved spending time with her. He testified that they play, read books, and spend time with his family. He is close with friends and family in the area and takes Paisley to church regularly. Shirley believed that he would be a better custodial parent for Paisley because he would spend more time with her and provide better care. He testified that he intends to get his own apartment once he has saved enough money.

¶13. Shirley criticized Whitehead for keeping Paisley from him. He also alleged that Whitehead had not done a good job of providing or caring for Paisley. He testified that Paisley had gotten a staph infection and that Whitehead had not provided proper treatment for it. In her testimony, Whitehead acknowledged that Paisley had a staph infection in the past, but she denied that she had neglected Paisley or failed to treat the infection. Whitehead also testified that Paisley was clean and that she took good care of her.

¶14. Shirley's mother, Eva, testified that Shirley was a family-oriented person and spent as much time as possible with Paisley. Eva said that Paisley would benefit from a close-knit extended family in the Columbus area. Eva testified that Shirley had come home from Belhaven every weekend that he could to see Paisley. Eva testified that Shirley played with Paisley and took full responsibility for her care whenever he had visitation. She said Shirley was a good father and would take good care of Paisley.

¶15. Eva expressed concerns that Whitehead was not doing everything that she could to keep Paisley clean and healthy. Eva testified about an incident when Whitehead called to tell her that she had taken Paisley to the emergency room for a staph infection and was on her way to the drugstore for a prescription medicine. When Eva met Whitehead at the drugstore, Whitehead discovered that Paisley's Medicaid registration had expired. Eva then paid for the prescription, and she took Paisley home to help treat the staph infection. Eva testified that she took photographs of Paisley that night because she did not appear to have been bathed and her clothes were dirty.

¶16. After the hearing, the chancellor entered an opinion and final judgment granting joint legal custody to Whitehead and Shirley, physical custody to Whitehead, and specified visitation to Shirley. The chancellor found that three Albright factors favored Shirley, two favored Whitehead, and all other factors were neutral. The chancellor also found that two "other factors" were relevant under Albright : that Paisley loved her younger half-brother (Whitehead's son), who also lived with Whitehead, and that Whitehead had violated a prior court order by removing Paisley from the state and withholding visitation. The chancellor explained that he disagreed with the GAL's custody recommendation because Paisley had been with Whitehead her entire life, because Whitehead appeared to have matured, and because he was reluctant to separate Paisley from her half-brother.

ANALYSIS

¶17. On appeal, Shirley argues that the chancellor's findings regarding several Albright factors are not supported by substantial evidence, that the chancellor failed to address the primary basis of the GAL's recommendation, and that the chancellor's custody decision was an abuse of discretion.³

¶18. "A chancellor's custody decision will be reversed only if it was manifestly wrong or clearly erroneous, or if the chancellor applied an erroneous legal standard." Smith v. Smith , 97 So. 3d 43, 46 (¶7) (Miss. 2012). "[T]his Court cannot reweigh the evidence and must defer to the chancellor's findings of the facts, so long as they are supported by substantial evidence." Hall v. Hall , 134 So. 3d 822, 828 (¶21) (Miss. Ct. App. 2014). The relevant question is whether the chancellor's decision is supported by the evidence, not whether we agree with it. Hammers v. Hammers , 890 So. 2d 944, 950 (¶14) (Miss. Ct. App. 2004).

¶19. In child custody cases, the "polestar consideration ... is the best interest and welfare of the child." Albright , 437 So. 2d at 1005. In determining where the child's...