Brandy Jo Johnson DANIEL, Appellant,
v.
Derrell Pat DANIEL, Appellee.
Court of Appeals of Mississippi.
Oby Thomas Rogers, Collins, Attorney for Appellant.
*563 David Shoemake, Collins, Attorney for Appellee.
BEFORE SOUTHWICK, P.J., BRIDGES, AND THOMAS, JJ.
BRIDGES, J., for the Court:
STATEMENT OF FACTS AND PROCEDURAL HISTORY
¶ 1. On October 20, 1997, Derrell Pat Daniel filed his complaint for divorce and other relief against Brandy Jo Johnson Daniel on the ground of habitual cruel and inhuman treatment or, in the alternative, irreconcilable differences. On November 12, 1997, a temporary judgment was entered providing for temporary joint legal аnd physical custody, Derrell to have the initial custody for ten days and then to have visitation every other weekend after the initial ten days.
¶ 2. On May 5, 1998, the parties agreed and filed a motion to withdraw all fault grounds in the divorce. A divorce on the ground of irreconcilable differences was requested. The parties further requested that the chancellor resolve all child support and child custody issues. This appeal ensued from the chancellor's decision that Brandy and Derrell would share joint legal custody of the minor child by alternating custody every two weeks until the child reaches the age of five аnd may attend kindergarten. At the time of the child turning five and beginning kindergarten, physical custody of the child will then lie with Derrell. The following issues are raised for our consideration on this appeal:
I. THAT THE CHANCELLOR ERRED IN APPLYING THE ALBRIGHT FACTORS TO THE FACTS OF THE CASE WHEN HE RULED THAT IT WAS IN THE BEST INTEREST OF THE MINOR CHILD TO BE SPLIT ON A ROTATING TWO WEEK BASIS BETWEEN THE PARENTS IN DIFFERENT STATES.
II. THAT THE CHANCELLOR ERRED IN PROVIDING FOR A FUTURE CHANGE OF CUSTODY OF THE MINOR CHILD OF THE PARTIES WITHOUT PROVIDING IN HIS RULING A BASIS FOR THAT DECISION.
¶ 3. Pertinent to the facts of this case are the findings of the chancellor in his assessment of the Albright factors used in his determinаtion of the custody of the minor child. Albright v. Albright,
[T]his Court finds that the mother is superior in two factors. The father is superior in two factors. If, in fact, this Court has the authority and has the obligation to weigh those factors, then the Court will do so prior to making a final determination as to the custody of the minor child ... since this Court has found that both parents are fit and proper, I am going to grant legal and physical control of the minor child to both parents. I'm going to alternate the child every two weeks with each parent.
In his final judgment, the chancellor ruled:
The Court further finds that the parties shall continue to alternate weeks of custody as set forth in the ruling from the Bench аnd make that ruling a permanent ruling until the child reaches the age of five and would begin five year old kindergarten. Once the child begins five year old kindergarten then at that time the primary physical custody of said minor child shall be placed with the father with the mother and father exercising joint legal custody and with the mother having custody of the child on the following times and periods....
The chancellor went on to enumerate the specific dates that Brandy Jo would have physical custody of the minor child, laying out for both parties the exact times which the child should be picked up and returned by Brandy during these periоds.
¶ 4. In her appeal, Brandy challenges the findings of the chancellor and contends that he committed error in his evaluation *564 of the Albright factors and in his final decision. Finding no errors that would require a reversal in this case, we affirm the ruling of the chancellor.
STANDARD OF REVIEW
¶ 5. The standard of review that must be adhered to by this Court is found in the сase of Wright v. Stanley,
LEGAL ANALYSIS
¶ 6. It is well recognized by this Court that in matters of child custody, "the polestar consideration is the best interest of the child." Sellers v. Sellers,
1. Health and sex of the child;
2. Which parent had the continuity of care prior to the separation of the parties;
3. Which parent had the best parenting skills;
4. Which parent has the willingness and capacity to provide primary child care;
5. Each parent's employment and their responsibilities in that employment;
6. Physical and mental health and age of the parents;
7. Emotional ties between the child and parents;
8. Moral fitness of the parents;
9. The home, school and community record of the child;
10. If the child is twelve years old or older, the child's preference;
11. The stability of the home environment and employment of the parents;
12. Any other factors relevant to the parent/child relationship.
Id.
¶ 7. In Hamilton v. Hamilton, this Court reviewed the record in that case and found that the chancellor should consider each Albright factor specifically in his decision for child custody. Hamilton v. Hamilton,
¶ 8. Brandy disputes that the chancellor reached a just decision in giving primary custody of the child to Derrell after the child reaches the age of five year old kindergarten. We believe that he did. In his dissection of each of the Albright factors, he came to the conclusion that Brandy and Derrell were both superior in two of the factors and were equally balanced on the remaining eight. Brandy argues that the chancellor had no basis for deciding primary custody in favor of Derrell after the child turned five. However, lоoking at the chancellor's judgment, we find that his decision should not be overturned.
¶ 9. Specifically, we look to the particular Albright factors that the chancellor found to be in favor of Derrell. First, it was decided that Derrell was more morally fit than Brandy. Secondly, Derrell was declared to be able to provide the most stable home environment for the child. Brandy cites a case written by this Court that provides that moral unfitness cannot alone be used punitively against a party by denying custody to that party. Sullivan v. Stringer,
¶ 10. Brandy further argues that the chancellor's decision prevents her from seeking modification of custody in the future. We disagree. We find that the chancellor's decision in nо way bars Brandy from petitioning the court for future custody modification if, as the law prescribes, she can demonstrate that there is a material change in circumstances that would, in the child's best interest, necessitate such a modification. Riley,
[A] chancellor is never obliged to ignore a child's best interest in weighing a custody change; in fact, a chancellor is bоund to consider the child's best interest above all else.... [I]t should not thwart the chancellor from transferring custody of a child from one parent to another when, in the chancellor's judgment, the child's welfare would be best served by such transfer.
* * *
[N]o rigid test or magic words should stand in the way of the chancellor as he or she acts to improve the child's welfare through a modification of custody... [A] chancellor's ultimate concern must always be whether such change would be in the child's best interest. *566 Id. at 744-45. This Court is convinced that if Brandy can demonstrate the need for such a modification in the future, in accordancе with the precedent set out above, then her chance to change custody stands as any other non-custodial parent and is not hindered or prevented by the chancellor's decision here.
¶ 11. Moreover, we find no authority that would prohibit a chancellor from entering an initial judgment which includеs provisions for both present and near-future custody arrangements of a child. Brandy has not pointed this Court to any such case law that would say otherwise. We are of the opinion that the chancellor was within his bounds to make such a decision.
¶ 12. Brandy asserts that the chancellor gave no reasоn for placing primary custody with Derrell after the child reaches the age of five year old kindergarten. It is our opinion that the chancellor was clear in his reasoning. We are convinced that one of the key factors in the chancellor's decision involved the stable home life of the child at the start of the child's school years. In recognizing this, we note once again that the factor involving stability of the home under Albright was declared by the chancellor to be in favor of Derrell here. Therefore, we are convinced that the chancellor's decision was based on substantiаl evidence.
¶ 13. The Albright factors that were found by the chancellor in favor of Brandy were the age and sex of the child and the continuity of care. The chancellor stated that he did give consideration to the tender years doctrine in his evaluation of the age and sex of the child. Brandy argues that, according to that doctrine, she should have been awarded primary custody of the child. Again, we look to the case of Albright for our direction in this matter. Albright,
¶ 14. The chancellor herе indicated his concern for the situation in which the child would be placed if primary custody were to lie with Brandy. For example, he discussed certain actions by Brandy which he construed to be detrimental to the child and he noted that, while the child had some family ties in Arkansas, he believed the child's family ties in Mississipрi to be stronger and more stable. Further, he found Derrell's home provided more security to the child in light of circumstances which the chancellor found to be potentially harmful to the child if the child were to remain in Arkansas with Brandy. It is our opinion that the chancellor did not err in finding that Derrell should receive primary custody of the child after she has reached the age of five year old kindergarten. As *567 is set out in the standard of review, our task is not to re-weigh the evidence and facts of this case, but rather to be certain that the chancellor was not manifestly wrong in his application of the law. Smith,
¶ 15. Furthermore, we will not disturb the chancellor's order that Brandy and Derrell should have rotating custody every two weeks. 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 Cоurt 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." Case v. Stolpe,
¶ 16. THE JUDGMENT OF THE CHANCERY COURT OF COVINGTON COUNTY IS HEREBY AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.
McMILLIN, C.J., KING AND SOUTHWICK, P.JJ., IRVING, LEE, MOORE, MYERS, PAYNE, AND THOMAS, JJ., CONCUR. LEE, J., CONCURS WITH SEPARATE WRITTEN OPINION JOINED BY MYERS, J.
LEE, J., concurring:
¶ 17. I concur with the majority. The learned chancellor reviewed the facts very carefully. The chancellor correctly аpplied the Albright factors and granted joint legal custody to both parents. I write this opinion to focus on the fact that the chancellor granted joint custody to the parents after having granted the parents a divorce on irreconcilable differences. I have previously argued in Morris v. Morris,
MYERS, J., JOINS THIS SEPARATE WRITTEN OPINION.