Wheat v. Koustovalas
| Docket Number: | 2009-CA-00074-COA Linked Case(s): 2009-CA-00074-COA ; 2009-CT-00074-SCT |
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| Court of Appeals: |
Opinion Link Opinion Date: 02-23-2010 Opinion Author: Carlton, J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Child custody - Best interest of child - Albright factors - Tender-years doctrine - Legal custody Judge(s) Concurring: King, C.J., Lee and Myers, P.JJ., Irving, Griffis, Barnes, Ishee, Roberts and Maxwell, JJ. Procedural History: Bench Trial Nature of the Case: CIVIL - CUSTODY |
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| Trial Court: |
Date of Trial Judgment: 12-22-2008 Appealed from: LOWNDES COUNTY CHANCERY COURT Judge: H.J. "Jim" Davidson, Jr. Disposition: DETERMINED PATERNITY AND AWARDED CUSTODY TO FATHER Case Number: 2008-0315-D |
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| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | ERICA ROSE WHEAT |
STEPHANIE L. MALLETTE |
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| Appellee: | THANASIS G. KOUSTOVALAS | TIMOTHY C. HUDSON |
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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 - Best interest of child - Albright factors - Tender-years doctrine - Legal custody |
| Summary of the Facts: | Erica Wheat and Thanasis Koustovalas lived together for over a year after the birth of their son. Per a temporary court order issued prior to the trial, Erica retained full custody of her son, and Thanasis was given visitation rights every other weekend. However, due to Erica's work schedule, Thanasis kept their son three nights of each week, and Erica kept him four nights. After a trial, the chancellor awarded full custody of the couple’s son to Thanasis, with Erica entitled to reasonable visitation. The chancellor also ordered Erica to pay $135 per month in child support to Thanasis. Erica appeals. |
| Summary of Opinion Analysis: | Erica argues that the chancellor erred in his application of the Albright factors to the facts of this case, because he failed to articulate that her son falls within the tender-years doctrine. The polestar consideration in child-custody cases remains the best interest of the child. Although still a viable presumption, the tender-years doctrine weighs in favor of the mother unless the chancellor gives an explanation otherwise. In the present case, the chancellor acknowledged the child’s young age, but he found that this factor actually favored the father. The chancellor explained that he based his analysis on Erica’s negligent handling of the child’s healthcare coverage and the fact that Thanasis was capable and willing to provide such coverage. The chancellor faced a difficult decision as both parents possessed flaws, but the chancellor’s findings were supported by the evidence and based on the best interest of the child. Erica also argues that the chancellor’s final order granting custody to Thanasis should be set aside due to the ambiguity of the term “custody.” She concedes that the chancellor’s judgment clearly awards primary physical custody to Thanasis, but she maintains that the court remained silent in its ruling regarding legal custody of the couple’s son. The chancellor never used the term “primary” custody in his award to Thanasis; rather, the chancellor simply awarded custody to the father. While the chancellor could have more specifically articulated that he granted both legal and physical custody to the father, a plain reading of the judgment clearly awards all custody rights of the son to Thanasis. The judgment clearly awards only visitation to Erica. |
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