Rankin County Chancery Court, Hon. Dan H. Fairly, J.
Robert Fred Lingold Jr., attorney for appellant.
Sharon Patterson Thibodeaux, attorney for appellees.
¶ 1. Allison Arrington appeals the Rankin County Chancery Court's judgment granting grandparents' visitation to Doyle and Rebecca Thrash. This is a " factor case," a chancery court matter requiring discussion of the facts in the context of certain enumerated factors.
Martin v. Coop  established that ten such factors must be addressed on the record in all grandparent visitation cases brought under Mississippi Code Annotated section 93-16-3 (Supp.2012). However, the " Martin factors" are not to be weighted and are not all-inclusive; Martin calls on a chancellor to also " weigh all circumstances and factors he feels to be appropriate." Id.
¶ 2. In this case the grandparents were awarded extensive visitation comparable to that which would ordinarily be awarded to a noncustodial parent. Allison, the child's mother, raises three issues on appeal. She contends the chancellor erred (1) in using the ten Martin factors to determine whether the Thrashes were entitled to grandparent visitation; (2) in awarding excessive visitation to the Thrashes under Martin; and (3) in changing the child's surname. We affirm the grant of visitation to the grandparents, but we find no authority to change the birth certificate and reverse and render as to that issue only.
¶ 3. On September 3, 2005, Jonathan Thrash, the nineteen-year-old son of Doyle and Rebecca Lynn Thrash, was cleaning up Hurricane Katrina debris at his parents' home with a " Bobcat" when it turned over, killing him.
¶ 4. A very short time later the Thrashes were contacted by Allison Arrington, who told them that Jonathan was the father of her daughter Payton, born in late April 2005. She said she had not told Jonathan, claiming he died not knowing of the existence of his child. It was the first time the Thrashes had heard of the existence of Allison or Payton. A DNA test, proposed and paid for by the Thrashes, confirmed Allison's representations of paternity, and a relationship began between Allison, Payton, and the Thrashes.
¶ 5. Beginning when Payton was four months old, the Thrashes regularly kept her in their home on weekends and holidays, sometimes for a week or more at a time. Notably, at the very beginning of their relationship with Payton, they had her in their custody during the Thanksgiving holiday weekend of 2005, when they took six-month-old Payton, as well as Allison, to visit Payton's great-grandparents in Tennessee. At one point Payton was in her grandparents' home almost continuously for nearly a year. Over the four and a half years the Thrashes had custodial visitation, Allison gave birth to two other illegitimate children. The Thrashes took Payton, her younger siblings, and Allison on an occasional vacation trip together. The Thrashes contributed financially to Payton's support and aided in obtaining Jonathan's Social Security benefits for Payton, paying money owed by Jonathan to the Social Security Administration. Also, they set up a room in their home exclusively for Payton and had birthday and holiday parties for her each year. The extent of their involvement with their granddaughter and her mother is recorded in great detail in family calendars beginning in 2006, and in a " baby book" they call their " mamaw and papaw book." At the hearing, the Thrashes introduced a photograph of their first meeting with Payton when she was four months old, along with a number of photographs chronicling their contacts with Payton over the years. The chancellor found specifically that the relationship between Payton and her grandparents was a " viable" one. See Miss.Code Ann. § 93-16-3(2)(a).
¶ 6. On May 18, 2010, just after Payton's fifth birthday, Allison cut off her visitation with the Thrashes. Doyle Thrash had recently contacted the Mississippi Department of Human Services concerning Payton and her two siblings. On a regular visitation day, Doyle had gone to Allison's residence where she lived with " Bull," her boyfriend and the father of her two other children. Payton told her grandfather through the window, " I can't get Mommy up. She won't come to the door." Doyle testified at the hearing that, on that day, Allison seemed to Doyle to be incapacitated by substance abuse. Doyle had rung her doorbell for over thirty minutes before she finally came to the door. He testified that, on an earlier occasion, he had observed Allison's two younger children playing in their own feces. Allison sent the Thrashes a series of text messages informing them they would not see Payton again because of the " stunt" Doyle " pulled" by calling DHS. DHS later advised him that Allison had surrendered custody of Payton and her two other children to their maternal grandmother and entered treatment for drug and alcohol abuse.
¶ 7. In September, after being denied contact with Payton since May, the Thrashes filed this action for grandparent visitation, which also sought to change Payton's surname to that of her father.
¶ 8. Rule 81 process  was served on Allison on October 1, 2010, for a hearing on Monday, November 29, 2010. Her attorney filed a motion for a continuance on November 24, claiming she was required to attend a hearing elsewhere. When the court and counsel for the Thrashes discovered the motion in the court file, the court called the attorney's office and was advised by her staff that they had no idea where she was. Nothing in the record indicates the motion was ever heard or granted, and an extensive hearing took place on the date set without Allison or her counsel present, resulting in sixteen pages of on-the-record Martin factor discussion in the fifty-five-page hearing transcript.
¶ 9. At the hearing the Thrashes testified extensively of a close and viable relationship with Payton spanning most of her life. Following their testimony, the chancellor adjudicated their status as grandparents entitled to visitation on two independent statutory grounds because (1) their child was deceased and (2) they also had an established, close relationship with their grandchild. In his extended discussion on the record, the chancellor addressed each of the Martin factors, finding that " each and every factor favors an award of grandparents visitation" to the Thrashes. He then awarded them " Farese visitation" — the same visitation that would generally have been accorded to a parent— and also ordered the change of Payton's birth certificate by addition of Jonathan's name as her father and the change of her surname from Arrington to Thrash.
¶ 10. Pertinent to this court's jurisdiction under a timely notice of appeal is that, on December 6, 2010, Allison filed what we consider to be a Rule 59 motion. It remained pending for two years during which time other motions, temporary orders, agreed orders, conferences of counsel and parties (and on occasion with the court, followed by announcements and rulings on the record, one of which included the grant of grandparent visitation to Payton's maternal grandmother), and contested hearings before the chancellor took place, until the December 2010 motion was finally denied on December 11, 2012. Allison, represented by new counsel when the
denial was entered, filed her notice of appeal on January 5, 2012.
¶ 11. Payton was five years old when this litigation commenced, was less than four months from turning age seven when it was appealed, and is now eight years old. The surname she has been using since December 2010 does not appear of record.
¶ 12. The three issues submitted on appeal relate only to determinations made at the November 2010 hearing. Allison contests the chancellor's award of extensive visitation in light of Martin's call for " overwhelming" factor support of such an award, as well as the change of Payton's surname on her birth certificate. Allison neither asserts nor argues any other error in any other ruling made by the chancellor after that November 2010 hearing. She does not object in this appeal to the hearing taking place on the return date and in her absence. The chancellor had denied from the bench a continuance motion, discovered in the court file on the day of hearing, the Monday after Thanksgiving. It had been filed in the afternoon of the Wednesday before the holiday, and Allison had been on notice for fifty-nine days prior to the hearing through service on her of a Rule 81 summons on October 1. The chancellor held that neither he, his office, the attorney for the ...