Tilley v. Gibbs

387 So.3d 64

Tiffany Michelle TILLEY, Appellant

v.John Michael GIBBS, Appellee

NO. 2022-CA-01150-COA

Court of Appeals of Mississippi.

05/21/2024

LOWNDES COUNTY CHANCERY COURT, HON. RODNEY PURVIS FAVER, JUDGE

ATTORNEY FOR APPELLANT: WILLIAM PAUL STARKS II, Starkville

ATTORNEY FOR APPELLEE: HAL H. H. McCLANAHAN III, Columbus

BEFORE WILSON, P.J., WESTBROOKS AND SMITH, JJ.

SMITH, J., FOR THE COURT:

¶1. Tiffany Tilley appeals from the Lowndes County Chancery Court’s judgment awarding her ex-husband John Gibbs physical custody of their daughter V.G.¹ Tiffany claims the chancellor was manifestly wrong in his Albright analysis and erred by awarding custody of V.G. to John. Finding no reversible error, we affirm the chancellor’s judgment.

FACTS AND PROCEDURAL HISTORY

¶2. John and Tiffany were married on April 6, 2019, in Lowndes County, Mississippi.² The parties had one child, V.G., born prior to the marriage on December 19, 2018. On December 14, 2021, John filed his original complaint for divorce against Tiffany. Tiffany filed her answer to the complaint and a counterclaim, and the matter was set for a temporary hearing. On the date of the hearing in January 2022, the parties agreed to a temporary order granting Tiffany custody of the minor child and granting John visitation. At trial in May 2022, the parties agreed to withdraw fault grounds for divorce and proceeded on the contested issue of custody and child support. Both sides presented several witnesses at trial and the chancery court took the matter under advisement.

¶3. While awaiting the court’s decision, Tiffany filed a supplemental motion for a protective order against John concerning messages he sent to her containing possible threats and harassment. John filed a response admitting he sent the messages but denying the messages were directed at Tiffany. The matter was set for a hearing on September 13, 2022, but Tiffany requested that the court hold the matter in abeyance without a hearing.

¶4. On September 16, 2022, the chancery court issued its opinion and final judgment, granting an irreconcilable differences divorce, awarding joint legal custody with John being awarded physical custody. The court awarded Tiffany visitation and ordered her to pay child support of $490.00 per month. Thereafter, Tiffany filed a motion for a new trial, or to alter or amend the final judgment, advancing arguments including failure to consider certain material and substantial evidence in making an Albright analysis.³ On October-20, 2022, the chancery court entered an order amending the opinion and final judgment to correct dates and names but denied Tiffany’s request for reconsideration of custody. Tiffany subsequently filed the instant appeal.

STANDARD OF REVIEW

[1, 2] ¶5. Our "standard of review for a child-custody case is a narrow one." Munday v. McLendon, 287 So. 3d 303, 309 (¶25) (Miss. Ct. App. 2019). We "will affirm the child-custody decree if the record shows any ground upon which the decision may be justified." Brumfield, v. Brumfield, 49 So. 3d 138, 142 (¶9) (Miss. Ct. App. 2010) (emphasis added). This Court "will not reverse unless the [chancellor] made findings that are manifestly wrong or clearly erroneous or applied an improper legal standard." Munday, 287 So. 3d at 309 (¶25).

DISCUSSION

[3–5] ¶6. On appeal, Tiffany claims the chancellor erred in his consideration and application of the factors utilized to determine custody of V.G. For cases "appeal[ing] from child-custody decisions, ‘our polestar consideration,’ like the chancellor’s, ‘must be the best interest of the child.’ " Id. at 309 (¶26) (quoting Montgomery v. Montgomery, 20 So. 3d 39, 42 (¶9) (Miss. Ct. App. 2009)). To determine the result that would be in the child’s best interest, the chancellor considers the Albright factors set out as follows:

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

Street v. Street, 936 So. 2d 1002, 1009 (¶20) (Miss. Ct. App. 2006) (quoting Albright, 437 So. 2d at 1005). " ‘All the factors are important, but the chancellor has the ultimate discretion to weigh the evidence the way [he] sees fit’ in determining where the child’s best interest lies." Blakely v. Blakely, 88 So. 3d 798, 803 (¶17) (Miss. Ct. App. 2012) (quoting Johnson v. Gray, 859 So. 2d 1006, 1013-14 (¶36) (Miss. 2003)).

¶7. Tiffany claims that many of the factors that were either weighed in John's favor or found to be neutral should have been found in her favor, including continuity of care; age, health, and sex of the child; parenting skills and willingness to provide primary care; employment of the parent and responsibilities of employment; physical and emotional fitness and age of the parents; stability of home environment; and separation of siblings. We address each challenged factor in turn.

1. Age and Sex of the Child

[6] ¶8. On appeal, Tiffany argues "that the chancellor did not give sufficient weight to the sex of the children when considering a female child in the tender years[,]" and that "there is still a presumption that a mother is generally better suited to raise a young child." The chancellor found that at the time of trial, V.G. was a three-and-a-half-year-old female child. But the chancellor determined that V.G. was not dependent on Tiffany for her physical welfare and that John was capable and equally adept at caring for her. The court’s order noted that the tender years doctrine is only a presumption and concluded that this factor was neutral.

[7, 8] ¶9. "Mississippi law does not support [the] argument that a child’s mother, as opposed to the father, is the best caregiver by default." Sellers v. Rinderer, 248 So. 3d 930, 934 (¶12) (Miss. Ct. App. 2018). Defining the tender years presumption,

The tender years doctrine is not a rule, but merely a presumption that, ‘in all cases where any child is of such tender age as to require the mother’s care for its physical welfare, it should be awarded to her custody, at least until it reaches that age and maturity where it can be equally well cared for by other persons.'

Street, 986 So. 2d at 1010 (¶23) (quoting Law v. Page, 618 So. 2d 96, 101 (Miss. 1993)). The tender years presumption has weakened over time. See Kerr v. Kerr, 323 So. 3d 462, 477 (¶56) (Miss. 2021).

¶10. Tiffany’s argument implies that she should have been favored under this factor by default as the mother. But John had the opportunity to overcome the presumption with evidence showing that he was equally capable of caring for her. Ample evidence in the record shows that Tiffany was absent from the marital home and V.G.’s care for a significant period during the marriage (approximately 170 days over a span of twelve months, give or take a few contested dates), leaving John to care for the child without her mother. Further diminishing the tender years presumption, evidence demonstrated the role of additional family members who provided assistance as caregivers, including William Gibbs, John’s father, and Albert Baker, Tiffany’s grandfather. John testified to numerous examples of his pattern of care to illustrate that he was equally capable of providing the care needed by his daughter. Further, Tiffany did not offer evidence to dispute that John was equally capable of taking care of their daughter, nor did she demonstrate any reason as to why she is better suited to raise her. Substantial evidence supports the court’s ruling that the tender years presumption was overcome based on the ability of others to equally care for her. As such, the chancellor did not abuse his discretion by finding this factor neutral or in the weight he assigned to it.

2. Continuity of Care

[9] ¶11. Tiffany also claims the chancery court erred in its application of the continuity of care factor. She argues the chancellor’s conclusion that John or his father were the primary caregiver was erroneous because of his work schedule's affect on his ability to be present during the hours of the day when V.G. was awake. She also argues the chancellor’s finding was unfounded due to the fact that she had primary custody during the temporary order, changed her actions, and ended up being the parent with the most continuity of care. She contends that neither she nor John had an advantage for the factor of continuity of care prior to separation because both were heavily assisted in their care by family.

¶12. As previously noted, the chancellor determined that Tiffany spent the night away from the marital home at least 170 times from December 2020 until November 2021. The chancellor also found that regardless of the disputes over a few contested dates and reasons for her absence, Tiffany admitted she was away from V.G. on these nights with another man. Thus, the chancellor concluded that "John and/or his father were the primary caregivers for V.G. prior to separation" and held that this factor favored John.

¶13. We first address Tiffany’s argument that care of V.G. prior to their marriage separation should not have favored John. Tiffany’s claim that it was impossible for John to be the primary caregiver narrowly focuses on the nighttime care of their daughter, but the continuity of care factor is not limited in such a way. Although John often worked nights and she was in William’s or Baker’s care at night, there is substantial evidence in the record showing that John...