Story v. Allen
| Docket Number: | 2007-CA-00312-COA Linked Case(s): 2007-CA-00312-COA |
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| Court of Appeals: |
Opinion Link Opinion Date: 12-09-2008 Opinion Author: GRIFFIS, J. Holding: Reversed and Remanded |
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| Additional Case Information: |
Topic: Child custody - Material change in circumstances - Albright factors Judge(s) Concurring: KING, C.J., LEE, P.J., MYERS, P.J., IRVING, J., CHANDLER, J., BARNES, J., ISHEE, J., ROBERTS, J., CARLTON, J. Procedural History: Bench Trial Nature of the Case: CIVIL - CUSTODY |
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| Trial Court: |
Date of Trial Judgment: 01-30-2007 Appealed from: OKTIBBEHA COUNTY CHANCERY COURT Judge: Kenneth M. Burns Disposition: FOUND DEFENDANT TO BE IN CONTEMPT AND DENIED PLAINTIFF’S PETITION TO MODIFY CUSTODY Case Number: 99-0140-B |
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| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | RANDY T. STORY |
MARK G. WILLIAMSON |
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| Appellee: | CINDY F. ALLEN | ALLEN AUSTIN VOLLOR | ||
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: | Child custody - Material change in circumstances - Albright factors |
| Summary of the Facts: | Randy Story filed a petition to modify custody and to hold Cindy Allen in contempt because she repeatedly interfered with his court-ordered visitation with his daughter. The chancellor granted Randy’s petition for contempt, but he denied Randy’s petition to modify custody. Randy appeals. |
| Summary of Opinion Analysis: | Randy argues that the chancellor committed manifest error in finding that it was in his daughter’s best interest to remain in Cindy’s custody. In the ordinary modification proceeding, the non-custodial party must prove that a substantial change in circumstances has transpired since issuance of the custody decree; that this change adversely affects the child's welfare; and that the child's best interests mandate a change of custody. During his Albright analysis, the chancellor concluded that the following factors favored Cindy: the continuity of care; the emotional ties of parent and child; and the home, school, and community record of the child. The chancellor then concluded that the following factors favored Randy: the stability and responsibilities of employment, moral fitness of the parent, and the stability of the home environment. The chancellor found all other factors to be neutral and allowed Cindy to retain custody. The chancellor committed manifest error during the Albright analysis. This conclusion is based upon the inconsistencies in the chancellor’s order regarding the Albright factors of continuity of care and emotional ties of the parent and child. The chancellor admitted in his order that the continuity of care factor favored Cindy because Cindy repeatedly interfered with Randy’s relationship with their daughter. Equity dictates that the chancellor should have at least found this factor to be neutral. With regard to the analysis of the emotional ties of the parent and child, equity dictates that the chancellor should have at least found this factor to be neutral since the chancellor was rewarding Cindy’s interference with Randy’s relationship with their daughter. Thus, the case is remanded for the chancellor to undertake either a new analysis of the Albright factors, which should include a cogent explanation of any facial inconsistency between the facts and the weight accorded to any individual factor, or a new evidentiary hearing to reconsider the Albright factors. |
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