Burge v. Burge
| Docket Number: | 2015-CA-01580-COA | |
| Court of Appeals: |
Opinion Link Opinion Date: 08-01-2017 Opinion Author: Barnes, J. Holding: Affirmed. |
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| Additional Case Information: |
Topic: Divorce: Adultery - Natural parent presumption - Child custody - Immoral conduct - Involuntary dismissal - M.R.C.P. 41(b) - Section 93-11-65 - Modification of custody Judge(s) Concurring: Lee, C.J., Irving and Griffis, P.JJ., Ishee, Carlton, Fair, Wilson, Greenlee and Westbrooks, JJ. Procedural History: Trial on Merits Nature of the Case: CIVIL - DOMESTIC RELATIONS |
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| Trial Court: |
Date of Trial Judgment: 09-16-2015 Appealed from: LAMAR COUNTY CHANCERY COURT Judge: HON. M. RONALD DOLEAC Disposition: Found Kelly Burge's natural-parent presumption rebutted; found Chadwick Sharff's natural-parent presumption rebutted; and awarded child custody to Craig Burge Case Number: 2003-0358-GN-G |
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| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | Kelly R. Burge |
PHILLIP LLOYD LONDEREE |
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| Appellee: | Craig A. Burge and Chadwick A. Sharff | ALLEN FLOWERS, EARL LINDSAY CARTER JR. | ||
Synopsis provided by:  If you are interested in subscribing to the weekly synopses of all Mississippi Supreme Court and Court of Appeals hand downs please contact Tammy Upton in the MLI Press office. |
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| Topic: | Divorce: Adultery - Natural parent presumption - Child custody - Immoral conduct - Involuntary dismissal - M.R.C.P. 41(b) - Section 93-11-65 - Modification of custody |
| Summary of the Facts: | Craig Burge filed for a divorce against Kelly Burge. Craig and Kelly had two children together, and Kelly also had physical custody of her two children born of a prior marriage to Chadwick Sharff. Craig sought physical and legal custody of all four children, claiming he acts in loco parentis as to the two Sharff children. Subsequently, Chad filed a petition to join Craig’s request for custody of all four children so as not to separate the children or, in the alternative, grant Chad custody of his children. In the Sharff divorce case, assigned to a different chancellor, Chad moved to transfer and consolidate his case with the Burges’ case. Craig also sought to consolidate the cases. Kelly filed a motion for summary judgment, alleging that the chancery court did not have jurisdiction over the Sharff children. Craig’s and Chad’s motions to consolidate were granted, and Kelly’s motion for summary judgment was denied. At the conclusion of Craig’s and Chad’s case-in-chief, Kelly made an ore tenus motion for an involuntary dismissal of Chad’s petition for modification of child custody and support, which was granted. The chancellor granted Craig a divorce on the grounds of uncondoned adultery, and awarded him legal and physical custody of his two minor children, as well as of the two Sharff children. Kelly appeals. |
| Summary of Opinion Analysis: | Issue 1: Natural parent presumption Kelly argues that it was error for the chancellor to find her natural-parent presumption as to her children with Chad was rebutted because of immoral conduct and unfitness. Kelly also argues that the chancellor applied an erroneous legal standard in making the findings that engaging in a post-separation affair and acting in contempt of a court order constitute moral or mental unfitness sufficient to rebut the natural-parent presumption. In custody battles between a natural parent and a third party, it is presumed that it is in the child’s best interest to remain with his or her natural parent. In order to be awarded custody, the third party must rebut the natural parent presumption by clear and convincing evidence. The natural-parent presumption is rebutted by clearly showing that the parent has abandoned the child; the parent has deserted the child; the parent’s conduct is so immoral as to be detrimental to the child; or the parent is unfit, mentally or otherwise, to have custody. If successful, the chancellor must next examine the Albright factors and determine if third-party custody is in the best interest of the child. The doctrine of in loco parentis does not, by itself, overcome the natural-parent presumption, although it may be a factor in determining whether the presumption has been rebutted. Here, the chancery court found both Kelly and Chad’s natural parent presumption rebutted. Kelly’s conduct was found to be immoral. The chancery court’s findings that Kelly was immoral and unfit is supported by substantial evidence. As pointed out by the chancellor and Craig, Kelly did not lose custody over a few modest indiscretions, but instead by making constant choices that favored her own desires over her children’s best interests. Kelly’s relationship with her paramour was not the only reason her natural-parent presumption was rebutted. Her testimony was frequently contradictory about dates, places, and times, although she apparently blames the discrepancies on dyscalculia. Kelly’s inability to respect and obey the court’s directives also points to her lack of morality and fitness as a parent. Additionally, she was not truthful about whether Chad was making child-support payments. Thus, there is no error. Issue 2: Involuntary dismissal Kelly argues that the chancery court’s jurisdiction over the Sharff divorce ended when Chad’s custody-modification pleadings were involuntarily dismissed due to failure to prosecute. At the conclusion of Craig’s and Chad’s case-in-chief, Kelly’s counsel made an ore tenus motion for the involuntary dismissal of Chad’s custody-modification action under M.R.C.P. 41(b), because Chad had not presented any evidence at trial to forward his claim. Chad had not been physically present during the trial. Thus, the court granted the motion to dismiss, denying any relief requested by Chad for custody of his children. However, in the chancellor’s opinion, he stated that the Sharff divorce judgment was modified by Craig’s grant of custody. Kelly argues that the involuntary dismissal of Chad’s custody modification in this case makes it “legally impossible” for the chancery court to address a change of custody for the Sharff children from Kelly to Craig. Section 93-11-65 allows the chancery court to hear a custody case apart from a divorce action. Here, prior to the modification action filed by Chad, Craig had filed for third-party custody of the Sharff children in this action. Chad’s modification action and Craig’s action are in the same chancery court, but with different cause numbers. Craig requested custody – something the court could grant – and both natural parents were given notice and an opportunity to be heard. The chancery court had the jurisdiction to modify custody of the Sharff children. That jurisdiction was not lost when Chad’s petition to modify custody was dismissed. Thus, this issue is without merit. |
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