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.
Relocation and Joint Custody
June 11, 2018 § Leave a comment
Julia Bennett and her husband, Andre, were divorced in 2011 on the ground of irreconcilable differences. Their PSA provided that the parties would share joint physical and legal custody, with Julia to have the children with her most of the time.
When Julia decided to relocate from Rankin County to St. Louis, Andre filed to modify, seeking sole custody, and to keep the children in Rankin. Julia counterclaimed for sole custody, and to modify the visitation based on her new residence in Missouri.
At hearing, Andre testified that he was actively involved in the lives of his children, and that he had recently purchased a home suitable for them to stay with him. Julia testified that her father and fiancé lived in St. Louis, and that she had a job awaiting her there. She said, too, that she had been in the process of enrolling the children in school in Missouri until the chancellor had entered an emergency order that the children be enrolled in Rankin County schools. One of the children, Madeline, age 14, testified that her preference was to stay with her mother, with whom she was close. She conceded that she was close to her father also, and that she would abide by the court’s order either way.
The family master, serving as a guardian ad litem (GAL) found that no material change had occurred, because Julia had not moved; however, a move would create a material change adverse to the children, and, if so, Andre should have custody. The GAL’s report incorporated an Albright analysis, which included Madeline’s preference. The chancellor agreed with and adopted the GAL’s recommendations and entered a judgment providing that if Julia relocated to Missouri Andre would have custody, Julia would have liberal visitation, and she would pay child support.
Julia appealed, challenging only the determination not to honor Madeline’s preference. In Bennett v. Bennett, decided April 10, 2018, the COA affirmed unanimously. Judge Fair wrote for the court:
¶12. Julia only challenges one Albright factor – the preference of the minor child. Mississippi Code Annotated section 93-11-65(1)(a) (Rev. 2013) provides that a child’s preference may be taken into account in determining child custody:
[I]f the court shall find that both parties are fit and proper persons to have custody of the children, and that either party is able to adequately provide for the care and maintenance of the children, the chancellor may consider the preference of a child of twelve (12) years of age or older as to the parent with whom the child would prefer to live in determining what would be in the best interest and welfare of the child. The chancellor shall place on the record the reason or reasons for which the award of custody was made and explain in detail why the wishes of any child were or were not honored.
“[T]he chancellor is not bound by the election of a minor child.” Floyd v. Floyd, 949 So. 2d 26, 30 (¶12) (Miss. 2007). However, if a chancellor declines to follow a child’s election, he must place the reasons in the record. Id.
¶13. In his Albright analysis, the family master noted the following regarding the child’s preference:
The preference of the child at the age sufficient to express a preference: [Madeline] is fourteen (14). She is over the age of twelve (12). She is able to make a preference. She did make that preference for mother. This factor would favor mother in this regard. [] The stability of the home environment, I believe, favors [Andre] Bennett primarily because he’s been here with the children and with mom up until recently. That is a stable environment, one in which the children are familiar with. You know, [Julia] Bennett, the testimony was you’re going to live with your dad. You don’t really have a place to live. You are not married yet. [There are] a lot of unknowns, a lot of question marks. I am not faulting you for it. I’m just saying that’s just the way it is. All things considered, the best evidence before the [c]ourt on this half is that the material change of circumstances was adverse to the children favors a modification of custody to – to dad.
¶14. We find that the family master appropriately explained his reasons for awarding custody to Andre instead of Julia in the event that Julia relocates, even though Madeline expressed a preference to reside with her mother. It was within the chancellor’s discretion to adopt the family master’s recommendation. Accordingly, we affirm.
Some ruminations:
- Anticipatory modifications have not been favored. See, McMurry v. Sadler, 846 So. 2d 244 (Miss. App. 2004), in which the court affirmed the chancellor’s decision to dismiss pleadings that alleged that a material change and adverse effect would result if an event happened. In most cases, this approach would be wise because it would be speculative to find material change and adverse effect would occur until they do.
- Here, it was practical for the chancellor to address the impending move and its effect on joint custody.
- Relocation almost always plays havoc with joint custody, leaving everyone — the judge included — dissatisfied with the result. To compound matters, the party who does’t wind up with what he or she wanted always feels cheated because joint custody is what they negotiated for, or what was ordered, in the first place.
- This case highlights that the court is never required to follow a child’s preference. If the preference is not followed, however, the court must state the reasons why. Here, by adopting the GAL’s report and findings on preference, the chancellor made a record as to why he did not follow the child’s preference.
Waiver of Process
June 6, 2018 § Leave a comment
MRCP 4(e) provides that a competent party defendant may waive process, meaning they don’t have to be served with a summons to enter an appearance. BUT there are some wrinkles of which you must be aware:
The waiver must be in writing, dated, and sworn or acknowledged, or the signature proven by two witnesses before a person authorized to administer oaths.
Comment: I have seen unsworn waivers, and undated ones. These are ineffective. Make sure your forms conform to the rule. A verbal statement, even on the record, may not be enough to be an appearance; it certainly is not enough to constitute a waiver because it is not in writing. Counsel opposite’s statement that her client will waive process, and even the party’s own statement that he will, will not satisfy the rule.
A guardian or conservator may waive process on herself and the ward. Any trustee, executor, or administrator may likewise waive process in his fiduciary capacity.
Comment: Neither an unmarried minor nor a mentally incompetent person may waive process, but their guardian or conservator may. It used to be the rule that convicted felons could not execute a waiver, but that was deleted from the rule.
This is crucial: the waiver must be executed after the day on which the action was commenced and it must be filed among the papers of the case and noted on the general docket.
Comment: I still see waivers every now and then dated on or before the date the initial pleading was filed. That’s void, no matter what kind of case. Even when it’s going to be uncontested and agreed to by everyone, it’s no good. And make sure you file your waiver and have it docketed; it’s a worthless piece of paper until you do.
A few points:
- Some people use joinders instead of waivers, because they think that the requirements for joinders are not so picky as for waivers. They may be right to some extent, and most judges accept joinders as an appearance. But remember that a joinder is in effect nothing more than an entry of appearance in the case, and R4(e) specifically says that, ” … entry of appearance must be executed after the day on which the action was commenced …” and must be filed just like a waiver, so there’s that.
- It is not required that process actually be issued before a party may waive service. The waiver has the same effect as if the party were actually served with process.
- Once a party has waived process, he need file no pleadings, and he is not required to appear.
- Just because a party waives process does not mean that she may not file an answer. It happens in ID divorces all the time that a party waives process and then later files an objection to the divorce or some other contested pleading.
The Better Home Argument for Custody
June 5, 2018 § Leave a comment
In the recent case of In re Guardianship of C.B.F., decided May 8, 2018, the COA confronted the argument that the natural-parent presumption had been rebutted because the grandfather had proven that he could provide a better home for the child than could the mother. Judge Griffis addressed the issue for a unanimous court:
¶35. Although not specifically asserted, it appears Paul claims the chancellor erroneously concluded that he failed to rebut the natural-parent presumption by clear and convincing evidence. We disagree.
¶36. The natural-parent presumption “may be rebutted by clear and convincing evidence that (1) the parent has abandoned the child; (2) the parent has deserted the child; (3) the parent’s conduct is so immoral as to be detrimental to the child; or (4) the parent is unfit, mentally or otherwise, to have custody.” Wilson v. Davis, 181 So. 3d 991, 995 (¶7) (Miss. 2016). Additionally, the presumption “may be rebutted by clear and convincing evidence that actual or probable, serious physical or psychological harm or detriment will occur to the child if custody is placed with the natural parent, such that granting custody to the third party is substantially necessary to prevent such probable harm.” Id. at 995-96 (¶8). “Such a finding must prevent probable harm to the child, and not simply find that the third party can provide the child with different or arguably ‘better’ things.” Id. at 997 (¶8). “If the natural parent presumption is rebutted, the court may then proceed to determine whether an award of custody to the challenging party will serve the child’s best interests.” Id. at 995 (¶7).
¶37. Paul does not challenge the chancellor’s findings regarding each factor. Instead, Paul claims that “[r]igid adherence [to proving one of the four factors] placed [Carter] in a circumstance which is clearly not in his best interests.” See id. at (¶8) (noting “that the rigid adherence to proving one of the four precise factors to rebut the natural parent presumption may, in very limited and exceptional circumstances, place a child in a circumstance that is clearly not in his or her best interests”). However, as noted by the GAL, simply because Paul may offer a more suitable home for Carter is not enough to rebut the natural-parent presumption. Indeed, the chancellor found there was no evidence that “actual or probable, serious physical or psychological harm or detriment w[ould] occur if the custody of Carter [wa]s placed with Hollee.” [Emphasis mine]
Not a whole lot to chew on there, but I wanted to highlight the principle that even though most grandparents can provide a nicer home, more material pleasures, and a more comfortable life, that is not enough to overcome the natural parent presumption. There must be a showing by clear and convincing evidence of one or more of the four Wilson v. Davis factors, or that serious harm to the child will result from placement with the natural parent.
We are seeing more and more situations like the facts in this case in which the natural parents live with their parents, or leave a child with their parents intermittently, or abandon the child entirely. In most of these cases, the grandparents become de facto parents to the child, and they become quite attached to the youngster. It can become a real tug-of-war when the natural parent shows up and demands to have the child back.
Emancipation Confuseration
June 4, 2018 § 1 Comment
Tracy Dixon sued his ex, Sandra, on several counts, one of which was to declare that their then-19-year-old daughter Amanda to be emancipated. The proof established that the child moved in with her boyfriend Will after she graduated from high school, despite the objections of both parents. Will bought her a car and provided a cell phone. Amanda enrolled at Jones County Junior College studying nursing, and relied on her mother for support, including clothes, meals, and gas. The support continued after Amanda transferred to USM. To top it off, Tracy and Amanda had a disagreement and stopped communicating, although Amanda testified that she loved her dad and wanted to have a relationship with him. Tracy said that he wanted to have a relationship with Amanda, but it was she who refused to answer or return his phone calls, texts, and invitations.
After a hearing, the chancellor denied Tracy’s petition to declare Amanda emancipated, and Tracy appealed.
In Dixon v. Dixon, decided February 6, 2018, the COA affirmed. Judge Wilson wrote for the 5-4 majority:
¶21. Citing Mississippi Code Annotated section 93-11-65(8)(b)(iii) (Rev. 2013), Tracy argues that Amanda’s cohabitation with her boyfriend required the chancellor to find that she was emancipated and terminate Tracy’s obligation to pay child support for her. We disagree.
¶22. Section 93-11-65(8)(a) provides that unless the underlying child support judgment states otherwise, “emancipation shall occur when the child” turns twenty-one, marries, commences full-time military service, or is convicted of a felony and sentenced to a term of two or more years’ incarceration. Miss. Code Ann. § 93-11-65(8)(a) (emphasis added). In contrast, section 93-11-65(8)(b) provides that a “court may determine that emancipation has occurred and no other support obligation exists when the child,” inter alia, “[c]ohabits with another person without the approval of the parent obligated to pay support.” Id. § 93-11-65(8)(b)(iii) (emphasis added). “A basic tenet of statutory construction is that ‘shall’ is mandatory and ‘may’ is discretionary.” Khurana v. Miss. Dep’t of Revenue, 85 So. 3d 851, 854 (¶9) (Miss. 2012) (quoting Franklin v. Franklin ex rel. Phillips, 858 So. 2d 110, 115 (¶15) (Miss. 2003)). Thus, subparagraph (8)(b)(iii) applies in this case, but it did not require the chancellor to declare Amanda emancipated or terminate child support for her. Rather, this provision merely gave the chancellor discretion. See Wesson v. Wesson, 818 So. 2d 1272, 1282 (¶25) (Miss. Ct. App. 2002) (discussing the chancellor’s “discretionary decision concerning . . . emancipation”); Deborah H. Bell, Mississippi Family Law § 13.09[2], at 452 (2d ed. 2011) (explaining that in circumstances enumerated in subsection (b) “a court has discretion to determine that a child is emancipated”).
¶23. Moreover, Amanda and Michelle both testified that Amanda is a full-time student, that she does not have a job, and that she still relies on Michelle’s support to some extent. They also testified that her need for support would increase once she transferred to USM, which she subsequently did. We cannot say that the chancellor abused his discretion by not finding that Amanda was emancipated. See Andrews v. Williams, 723 So. 2d 1175, 1178-79 (¶¶12-14) (Miss. Ct. App. 1998) (affirming the chancellor’s discretionary ruling that child was not emancipated where child was “unable to support himself independently” and desired to attend college but needed help with college expenses).
Discretion — aside from being the better part of valor according to an old saw — is the factor that can have chancery practitioners pulling their hair out over how to advise their clients. The statute clearly leaves it up to the chancellor to decide whether emancipation has occurred in connection with those may scenarios. Discretion = case by case, and as long as the chancellor’s decision is supported by substantial evidence, the COA ” … cannot say that the chancellor abused his [or her] discretion.”
There are cases going every which way on the issue. In Rennie v. Rennie, 718 So.2d 1091, 1093 (Miss. 1998), a case with facts similar to those here, the MSSC affirmed a chancellor’s ruling that the child was emancipated, and held that once emancipation occurs, it can not be undone. A similar holding was reached in a case where the daughter had a baby but continued to live with and receive support from her mother. Caldwell v. Caldwell, 823 So.2d 1216, 1121 (Miss. App. 2002). Cases going the opposite way include: Andrews v. Williams, 723 So.2d 1175, 1179 (Miss. App. 1998); Carite v. Carite, 841 So.2d 1148, 1154 (Miss. App. 2002); and Wesson v. Wesson, 818 So.2d 1272, 1282 (Miss. App. 2002).
I think the best advice for your client is that, except for the situations (such as marriage and turning 21) mandated by statute, it is within the trial court’s discretion to declare a child emancipated, and that is done on a case-by-case basis. You can offer your best judgment based on your experience with the proclivities of your particular chancellor, but there is no clearcut result dictated by the law.
“Quote Unquote”
June 1, 2018 § Leave a comment
“It occurred to him that his scarcely perceptible attempts to struggle against what was considered good by the most highly placed people, those scarcely noticeable impulses which he had immediately suppressed, might have been the real thing, and all the rest false. And his professional duties and the whole arrangement of his life and of his family, and all his social and official interests, might all have been false.” — Leo Tolstoy, The Death of Ivan Ilych
“If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion, or force citizens to confess by word or act their faith therein.” — Robert H. Jackson, West Virginia State Board of Education v. Barnette, 319 U.S. 624, 642 (1943).
“To sum it all up, I must say that I regret nothing.” — Adolf Eichmann
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