Joint Custody and the Consent Divorce, and a Maxim Bonus

March 20, 2014 § 1 Comment

The COA decision in Keyes v. Keyes, handed down March 11, 2014, is noteworthy for a couple of points.

Melanie and Dustin Keyes entered into a consent for an irreconcilable differences divorce, leaving custody of their two children to the judge to decide. After a hearing, the chancellor awarded the parties joint physical and legal custody.

Melanie appealed, raising two issues: (1) the chancellor erred in failing to determine whether the parties could cooperate, which is a prerequisite to joint custody; and (2) the chancellor’s decision violated the maxim of equity that “equity delights to do complete justice, and not by halves.”

The COA affirmed. Judge Carlton wrote the opinion for a unanimous court (James not participating). Here’s her take on the first issue:

¶13. [MCA] Section 93-5-24(2) provides that in an irreconcilable-differences divorce the chancellor may, at her discretion, award joint custody “upon application of both parents.” In Crider [v. Crider], the parties filed a written consent to an irreconcilable-differences divorce and asked the chancellor to decide the issues of primary custody, property settlement, and support. Crider, 904 So. 2d at 143 [(Miss. 2005)] (¶3). The supreme court held “that when parties consent in writing to the court’s determination of custody, they are consenting and agreeing to that determination.” Id. at 148 (¶15). The supreme court further stated:

It is logical and reasonable that “application of both parties” exists when both parties consent to allowing the court to determine custody. The fact that the parties request that the court determine which parent is to receive “primary custody” does not alter this. The parties are allowing the court to determine what form of custody is in the best interest of the child. If joint custody is determined to be in the best interest of the child using court-specified factors, i.e., the Albright factors, the parties should not be able to prohibit this by the wording of the consent. . . . To be sure, unless the parents are capable of sharing joint custody cooperatively, it is incumbent upon a chancellor not to award joint custody. This is for the chancellor to determine as he or she is in the best position to evaluate the credibility, sincerity, capabilities[,] and intentions of the parties.

Id. at 147 (¶¶12-13). “The Crider court held that it is logical that when both parties consent for the court to determine custody, they fulfill the ‘application of both parents’ requirement of section 93-5-24(2).” Phillips, 45 So. 3d at 695 (¶33) (citation omitted).

¶14. In the present case, the parties do not dispute that they both consented to the chancellor’s determination of custody and that the “application of both parents” requirement discussed in Crider was met. Therefore, we turn our focus to whether the chancellor erred in awarding joint custody because of the parents’ inability to “shar[e] joint custody cooperatively.” Crider, 904 So. 2d at 147 (¶13). The supreme court has concluded that section 93-5-24(2) “should be interpreted to allow the chancellor to award joint custody in an irreconcilable[-]differences divorce if it is in the best interest of the child.” Phillips, 45 So. 3d at 695 (¶33) (citing Crider, 904 So. 2d at 148 (¶16)).

The decision goes on to find that the chancellor did, in her analysis of the facts, adequately weigh the parties’ ability to cooperate, and that she was in the best position as the trier of fact to determine how to resolve conflicting evidence at trial for the best interest of the minor children. The court concluded that this issue lacked merit.

As for the maxim argument, Judge Carlton addressed it as follows:

¶18. Melanie next argues that the award of joint custody essentially ensures future litigation; therefore, the chancellor violated the maxim that “[e]quity delights to do complete justice, and not by halves.” Melanie asserts that future litigation is likely because the chancellor failed to determine in which county the children should reside or where they should reside once they begin kindergarten. Melanie and Dustin reside in different counties, and Melanie contends that the children will be put “in the unenviable position of shifting back and forth from home to home during the school year.”

¶19. In support of her argument, Melanie relies on this Court’s decision in Daniel v. Daniel, 770 So. 2d 562 (Miss. Ct. App. 2000). The chancellor in Daniel awarded both parents joint legal custody of their minor child, with custody alternating every two weeks. Id. at 563 (¶2). This arrangement was to continue until the child turned five and entered kindergarten, at which time the father would receive physical custody. Id. In affirming the chancellor’s determination of the custody arrangement, we stated:

We are aware of the fact that a practice of constantly alternating a child back and forth to each parent is not a habit that should be encouraged. The Mississippi Supreme Court has spoken on this issue on more than one occasion, ruling that it is not in the best interest of a small child to be shifted from parent to parent. However, in this case, we are mindful that the child is nearing the age of five[-]year[-]old kindergarten and has been subjected to the rotating custody order since the chancellor’s judgment was handed down on December 15, 1998. We therefore can see no reason why what has become the child’s regular routine should be interrupted. Nonetheless, we agree with the chancellor that at such time as the child begins kindergarten, it will be necessary for the child to maintain the stability that is crucial at the beginning stages of her education.

Id. at 567 (¶15) (internal citations and quotation marks omitted).

¶20. In the present case, Melanie argues that the parties’ two minor children need the same stability given to the minor child in Daniel. She asserts that the parties’ children should reside with her in Warren County, where they currently attend daycare. In light of the Court’s decision in Daniel, and to provide the parties’ children with the stability that is crucial at the beginning stages of education, Melanie asks that the case be remanded with instructions for the chancellor to determine which parent should be the primary physical custodian.

¶21. As previously discussed, the decision to award the parties joint legal and physical custody was within the chancellor’s discretion since the parties agreed to submit this issue to her for determination. Bearing in mind our limited scope of review on appeal, we find that the chancellor did not commit manifest error in awarding joint custody. Therefore, this issue also lacks merit.

Bravo to Melanie’s appellate counsel for making the maxim argument. I thought it was apropos. Don’t let the fact that the COA didn’t buy the argument in this case discourage you from asserting claims based on the maxims in other cases. I’ve stressed here before that the maxims underly all actions in and relief granted by chancery courts, so they are always a legitimate basis for advocating for your client’s position.

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§ One Response to Joint Custody and the Consent Divorce, and a Maxim Bonus

  • Bob Wolford says:

    Oh, by “Maxim Bonus” you’re talking about those equity points. I thought you were going to include some material from, uh, err, never mind . . . I’m out.

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