The Albright Tie

June 12, 2018 § Leave a comment

If the chancellor finds that neither party prevails over the other in Albright factors, may the chancellor find merely that and not make detailed findings? Like this:

The court has considered all of the evidence and testimony in light of the enumerated Albright factors and finds that these two parents are comparatively equal regarding those factors—or put another way, that neither party is favored over the other party in employing the Albright balancing test—and, therefore, the court will and does hereby order joint legal and physical custody to be exercised by both of these parents with regard to the two children that are the subjects of this lawsuit.

There actually is authority to the effect that the chancellor may do exactly that, as we will see, but the COA reversed and remanded a recent case where the chancellor used the language above and did not make detailed findings.

In the case of Robles v. Gonzales, handed down May 15, 2018, Judge Carlton wrote for the court:

¶24. In Adoption of Wright v. Wright, 160 So. 3d 737, 742-43 (¶16) (Miss. Ct. App. 2015), this Court followed the supreme court’s prior holding in Powell, 792 So. 2d at 249 (¶33), [Fn 4] in determining that a chancellor erred by failing to make specific findings regarding each applicable Albright factor. This Court found that “the chancellor’s opinion arguably discussed several of the Albright factors” but explained that “it did so unintentionally and did not address all of the factors applicable in this case.” Id. at 742 (¶16). This Court then reversed the chancellor’s judgment and remanded the case with instructions for “the chancellor to support his decision with an on-the-record Albright analysis.” Id. at 743 (¶16).

[Fn 4] In Powell, 792 So. 2d at 249 (¶33), the supreme court reversed the chancellor’s judgment after finding that the chancellor failed to make specific findings for each Albright factor when making his custody determination.

¶25. However, in Sobieske v. Preslar, 755 So. 2d 410, 413 (¶12) (Miss. 2000), the supreme court affirmed the chancellor’s judgment despite its determination that the chancellor failed to make any express findings as to the Albright factors. In Sobieske, the chancellor provided only the following language in his custody determination:

Considering the factors set forth in Albright, it appears that both parents have the desire and capacity to have the primary custody of [the minor child], however, [the minor child] has close ties to the home she has lived in since birth as well as to her friends and family in Alcorn County, Mississippi. [The minor child] has close ties to Mrs. Sobieske’s twin sister, Mary Allred, and to Ms. Allred’s daughter, Meagan, who is approximately the same age as [the minor child]. [The minor child] also has, in Alcorn County, other family and friends who she is close to. Mrs. Sobieske and her new husband are living in Atlanta, Georgia, and since [the minor child] does not have any other family in that area, there are uncertainties for her there.

Id. at 411-12 (¶4). In Sobieske, the chancellor’s ruling “appears to recognize that both parents are fit under Albright[.]” Id. at 412 (¶4). The supreme court held “it can be inferred from his citation to Albright that [the chancellor] felt that both parents were fit under Albright” but expressed that “it certainly would have been preferable for the [c]hancellor to have expressly considered each Albright factor[.]” Id. at 412, 413 (¶¶4, 12). However, the Sobieski Court explained that “it is perhaps understandable that [the chancellor] did not do so in the present case, given that the testimony established that both [parents] were fit and loving[.]” Id. at 412 (¶4). In affirming the chancellor’s judgment, the Sobieske Court recognized the deference that an appellate court “must show to the [c]hancellor in the exercise of his discretion.” Id. at 413 (¶12).

¶26. In the more recent case of Huseth v. Huseth, 135 So. 3d 846, 858 (¶36) (Miss. 2014), the supreme court again affirmed a chancellor’s judgment awarding physical custody of the minor child to the mother despite finding that the chancellor failed to conduct a detailed, on-the-record analysis of the Albright factors. The supreme court recognized that the chancellor “state[d] that she had weighed the [Albright] factors, . . . [plus] significant evidence was adduced by each party [that] was relevant to the Albright factors and the determination of custody.” Id. Finding its prior precedent in Sobieske controlling, the supreme court affirmed the chancellor’s custody determination and held as follows:

In light of the amount of evidence adduced at trial that was relevant to the Albright factors, the fact that each parent was shown to be a good parent, and the chancellor’s indication that she had considered the factors by noting the stability achieved by the child’s staying with his mother, we find that Sobieske is controlling, and consequently, we affirm the chancellor’s custody determination.

Id. at 859 (¶39). [Fn 5]

[Fn 5] “The chancellor is only required to address those Albright factors that are applicable to the case before him.” Rayner v. Sims, 228 So. 3d 353, 357 (¶12) (Miss. Ct. App. 2017).

¶27. In the case before us, although the chancellor failed to provide an express, on-the-record determination regarding each Albright factor in his final judgment, the chancellor did state that in making his child-custody determination, he “consider[ed] and balanc[ed] the factors set forth by the Mississippi Supreme Court in Albright[.]” The trial transcript also reflects that the chancellor explained that he “considered all of the evidence and testimony in light of the enumerated Albright factors.” However, the chancellor’s ruling reflects only his determination that Robles and Gonzalez “are comparatively equal regarding those factors—or put another way, that neither party is favored over the other party in employing the Albright balancing test.” Unlike Sobieske, the chancellor made no additional finding that both parties were loving and fit, and the record does not reflect on its face that both parents are loving and fit so as to support an award of joint custody. Therefore, we must remand this case to the chancellor to provide findings in accordance with Albright to support his custody determination.

¶28. Additionally, when awarding joint custody, the supreme court has held that “unless the parents are capable of sharing joint custody cooperatively, it is incumbent upon a chancellor not to award joint custody.” Crider v. Crider, 904 So. 2d 142, 147 (¶13) (Miss. 2005). The supreme court instructed that “[t]his 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. The chancellor failed to make on-the-record findings regarding his application of the various Albright factors and as to whether the parties were capable of cooperatively sharing joint custody. We cannot properly review the chancellor’s child-custody determination without findings in support of his determination. Based upon the foregoing, we reverse the chancellor’s judgment and remand the case to the chancellor for further proceedings consistent with this opinion.

So, sometimes “Sobieske is controlling,” à la Huseth, and sometime not, as in this case. The fault line here seems to be in the award of joint custody. The COA felt that it needed more findings to ensure that the award of joint custody was properly made.

As a practitioner, I would encourage you to assume that there must be findings as to each applicable Albright factor in every case. If the chancellor does not do it in a bench ruling or written opinion or even in a final judgment, file a R59 motion asking the court to make such findings. You can even offer your own proposed findings and conclusions of law. It’s the only sure-fire way to try to protect your client in the event of an appeal.

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