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Wilson v. Davis

Court of Appeals of Mississippi

November 18, 2014

JAMES WILSON, APPELLANT
v.
PEARLEAN DAVIS, APPELLEE

          DATE OF JUDGMENT: 07/01/2013.

          COURT FROM WHICH APPEALED: HINDS COUNTY CHANCERY COURT. TRIAL JUDGE: HON. PATRICIA D. WISE. TRIAL COURT DISPOSITION: PRIMARY CUSTODY OF MINOR CHILD AWARDED TO APPELLEE; VISITATION AWARDED TO APPELLANT; JOINT LEGAL CUSTODY AWARDED TO APPELLANT AND APPELLEE.

         FOR APPELLANT: FELECIA PERKINS, JESSICA NICOLE AYERS.

         PEARLEAN DAVIS, APPELLEE, Pro se.

         GRIFFIS, P.J. LEE, C.J., ISHEE, CARLTON, MAXWELL AND FAIR, JJ., CONCUR. BARNES AND JAMES, JJ., CONCUR IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION. ROBERTS, J., DISSENTS WITH SEPARATE WRITTEN OPINION, JOINED BY IRVING, P.J.

          OPINION

Page 1012

          NATURE OF THE CASE: CIVIL - CUSTODY

         EN BANC.

         GRIFFIS, P.J.

         [¶1] This case involves a child-custody dispute between the child's natural father and the maternal grandmother. The chancellor found that the natural-parent presumption had been rebutted and that it was in the best interest of the child to live with her grandmother. We find no error and affirm.

         FACTS

         [¶2] Concetter Davis was the mother of two children. Ka'Nyla (" Ka" ) was born in 2001. Sha'Nyla M. Wilson (" Sha" ) was born on April 20, 2003.

         [¶3] This action began as a paternity and custody dispute between Concetter and James Wilson. James was adjudged to be Sha's natural father. Concetter was awarded custody, and James was awarded visitation.

         [¶4] Concetter died in 2011. When Concetter's relatives would not return Sha to James, he filed a petition for modification and sought sole legal and physical custody of Sha. The chancellor entered an order that awarded the primary physical custody of Sha to Pearlean Davis, Sha's maternal grandmother. The chancellor also awarded James liberal visitation.

         [¶5] In the decision, the chancellor did not treat the issue as an initial custody dispute between a natural parent and grandparent. Instead, the chancellor considered the motion as a modification of child custody based on the prior custody determination between Concetter and James.

         [¶6] The judgment was appealed and assigned to this Court. We reversed the judgment and remanded the case for the chancellor to make a determination of whether the naturalparent presumption had been rebutted. See Wilson v. Davis, 111 So.3d 1280, 1283 (¶ 11) (Miss. Ct.App. 2013).

Page 1013

On remand, the chancellor found that the natural-parent presumption had been overcome and applied an Albright [1] analysis. The chancellor entered a judgment that ruled it was in Sha's best interest to remain in Pearlean's custody. James appeals the chancellor's judgment.

         STANDARD OF REVIEW

         [¶7] In child-custody cases, this Court will reverse the chancellor's judgment only if the findings are manifestly wrong or clearly erroneous, or an improper legal standard was applied. Mabus v. Mabus, 847 So.2d 815, 818 (¶ 8) (Miss. 2003).

         ANALYSIS

         [¶8] We begin our review by noting that the appellee did not file a brief in this case. The Mississippi Supreme Court has ruled that the " [f]ailure of an appellee to file a brief is tantamount to a confession of error and will be accepted as such unless the reviewing court can say with confidence, after considering the record and brief of the appealing party, that there was no error." Sanders v. Chamblee, 819 So.2d 1275, 1277 (¶ 5) (Miss. 2002). We have reviewed the record and the appellant's brief, and we can say with ...


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