Parra v. Parra
| Docket Number: | 2010-CA-00339-COA | |
| Court of Appeals: |
Opinion Link Opinion Date: 06-21-2011 Opinion Author: Barnes, J. Holding: Reversed and remanded |
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| Additional Case Information: |
Topic: Child custody - Albright factors - M.R.C.P. 52(a) - Fraud - M.R.C.P. 60(b) Judge(s) Concurring: Lee, C.J., Irving and Griffis, P.JJ., Myers, Ishee, Roberts, Carlton and Maxwell, JJ. Non Participating Judge(s): Russell, J. Nature of the Case: CIVIL - CUSTODY |
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| Trial Court: |
Date of Trial Judgment: 10-21-2009 Appealed from: Warren County Chancery Court Judge: Vicki Barnes Disposition: CUSTODY OF MINOR CHILDREN GRANTED TO FATHER Case Number: 2009-002GN |
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| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | Bridget Marie Parra |
WREN CARROLL WAY |
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| Appellee: | Paul William Parra | TRAVIS T. VANCE 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: | Child custody - Albright factors - M.R.C.P. 52(a) - Fraud - M.R.C.P. 60(b) |
| Summary of the Facts: | Paul Parra and Bridget Parra were divorced in 2009, and the chancery court awarded Paul the “permanent care, custody and control” of the couple’s three minor children. Bridget filed a motion for a rehearing, contending that she should have been awarded custody since Paul had not informed the chancellor that he was planning to move their children to California. The chancery court denied Bridget’s motion, and she now appeals. |
| Summary of Opinion Analysis: | Issue 1: Child custody Bridget argues that, in awarding custody of the children to Paul, the chancery court failed to address the factors set forth in Albright and failed to submit any reasons why the custodial arrangement would be in the best interests of the children. Paul argues that since Bridget failed to make a motion or request for such findings under Uniform Chancery Court Rule 4.01 and M.R.C.P. 52(a), she waived her right to appeal this issue. When findings are not mandated by the nature of the case, procedural rules are applied to determine whether findings should be made. Cases involving a determination of child custody require specific findings. It is reversible error if the chancellor does not articulate the reasoning behind the finding for each Albright factor. Although the parties in this case discussed the Albright factors during the testimony at the hearing, the chancellor made no reference in her judgment as to what was in the best interests of the children and did not give any indication of what Albright factors were considered in making the custody determination. This omission is all the more important as several of the factors that might have been in Paul’s favor, such as the children’s happiness with their home life and school, were altered within a month of the court’s ruling. The chancellor’s failure to make any findings under Albright constituted error. Issue 2: Fraud At the January 20, 2010 hearing, Bridget asserted that her motion for rehearing should be considered an M.R.C.P. 60(b) motion, as Paul perpetrated a fraud upon the court by representing that he needed the marital home in Vicksburg for raising the children when he knew that he would soon be moving to California. At the hearing for temporary custody on January 14, 2009, Paul told the chancery court that he wanted his children “living on 211 Whatley Road,” which was the couple’s marital home in Vicksburg. Later, at the hearing to determine permanent custody held on October, 15, 2009, Paul made no mention of moving to California with the children. In fact, he testified that his children liked their school and community. Paul also stated that his sister was residing with him to help with the children and that she was seeking employment in Mississippi and that he intended for this to continue. This testimony by Paul suggests that he might have misrepresented his intentions to the chancery court. It is unlikely that a father would decide to quit his job and uproot his three children from their home, community, and school in a mere three weeks, without some advance planning or thought. Additionally, in his response to Bridget’s motion for rehearing filed on November 2, 2009, he denied that he was planning on moving the children to California. However, nine days later, he and the children were gone. The mere non-disclosure to an adverse party and to the court of facts pertinent to a controversy before the court does not add up to ‘fraud upon the court’ for purposes of vacating a judgment under Rule 60(b). To warrant relief pursuant to Rule 60(b)(1), the movant must prove fraud, misrepresentation or other misconduct by clear and convincing evidence. Bridget claims that she heard rumors about Paul moving with the children immediately after the entry of judgment and that Paul called her on his way to California, stating that she would not see her children again. However, this is not clear and convincing evidence Paul planned to move when he testified at the original hearing. Paul’s moving the children to California has prevented any visitation by Bridget, due to distance and monetary limitations. While Paul’s seemingly deceitful behavior may not be a ground for removing the children from his primary physical custody, it certainly should be a factor that the chancellor addresses on remand in her review of the Albright factors. |
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