OF JUDGMENT: 08/30/2016
FROM WHICH APPEALED: HARRISON COUNTY CHANCERY COURT, FIRST
JUDICIAL DISTRICT HON. SANFORD R. STECKLER TRIAL JUDGE.
ATTORNEYS FOR APPELLANT: HAROLD O. GRISSOM JR. PRESTON ANDREW
ATTORNEY FOR APPELLEE: DIANNE HERMAN ELLIS.
LEE, C.J., WILSON AND WESTBROOKS, JJ.
In this child custody dispute, the father, Sean Harden,
argues that the chancellor erred by awarding physical custody
of the parties' son, Rhett, to the mother, Danielle
Scarborough. Harden also argues that the chancellor erred in
setting child support, by considering hearsay, by enjoining
both parties from routinely visiting Rhett's daycare or
school during the day, and by enjoining both parties from
sharing pictures of Rhett on social media. For the reasons
that follow, we find no error and affirm the chancellor's
rulings on child custody and child support. We also find that
Harden's hearsay argument is without merit. However, we
reverse and render the orders restricting the parties'
visits to Rhett's daycare and prohibiting them from
sharing pictures of the child on social media. We reverse on
those issues because there was no evidence that either issue
had caused any harm to the child or that either parent had
visited the school or shared photos inappropriately.
AND PROCEDURAL HISTORY
Harden and Scarborough began dating around August 2013. Their
son, Rhett, was born in October 2014. Harden and Scarborough
never married but cohabited at Harden's home from June
2014 until May 2015. Harden is a high school teacher and
coach. He resigned as head football coach at the school
during this litigation but continues to teach and coach
powerlifting. Scarborough is a registered nurse at a
On May 25, 2015, Scarborough, with Rhett, moved out of
Harden's house. On June 1, 2015, she filed a complaint to
establish paternity, custody, and child support. On June 17,
2015, Harden filed an answer and counterclaim for custody and
After Scarborough moved out of Harden's house, she
enrolled Rhett in a new daycare without notifying Harden, and
she did not allow Harden to see Rhett again until July 5,
2015. Scarborough testified that the new daycare was closer
to her work, and her daughter from a prior relationship had
attended it. Scarborough testified that she denied Harden
visitation from May 25 to July 5 on the advice of her former
attorney because there was no court order in place. During
that time, Scarborough and Harden communicated primarily by
text message and through their attorneys. The record includes
hundreds of pages of the parties' text messages from both
before and after their separation.
On July 21, 2015, the court entered a temporary order
granting Scarborough and Harden joint legal custody,
Scarborough temporary physical custody, and Harden weekend
visitation. The court also ordered Harden to pay child
support of $541.50 per month.
A trial was held March 22-25, 2016. Scarborough testified and
called her mother, father, and daughter as witnesses. Harden
testified and called his mother as a witness. A fellow
teacher and former principal at Harden's school also
The chancellor ruled from the bench at the conclusion of the
trial and subsequently entered a written judgment
establishing custody, visitation, and support. The chancellor
made findings under Albright and awarded Scarborough
physical custody of Rhett with joint legal custody and
visitation for Harden. The chancellor awarded Harden
visitation consisting of alternating weekends, alternating
Thursday afternoons, most of the summer, and specified
holidays. The chancellor ruled that child support would
remain at $541.50 per month, as set by the temporary order.
The final judgment also prohibited both Harden and
Scarborough from posting pictures of Rhett on social media.
Finally, the judgment provided that Harden and Scarborough
were encouraged to participate in Rhett's extracurricular
and school activities, including all parties and special
events at his school or daycare, but neither party should
"routinely visit any daycare or school, for lunch or
otherwise, " or without "a specific purpose for
On appeal, Harden argues that the chancellor misapplied the
"tender years doctrine" and erred in applying most
of the Albright factors. Harden also argues that the
chancellor erred in setting child support because the
chancellor failed to account for Harden's resignation as
football coach and anticipated loss of income. Finally,
Harden argues that the chancellor abused his discretion by
enjoining both parties from posting pictures of Rhett on
social media and by limiting visits to Rhett's school or
daycare. Scarborough did not file a cross-appeal, but in her
brief on appeal she asserts that the chancellor erred by
ordering that Rhett's last name should be changed to
Harden on his birth certificate and other records. She also
asserts that Harden's appeal is frivolous and requests an
award of attorney's fees. Additional facts are discussed
below as relevant and necessary.
"A chancellor's custody decision will be reversed
only if it was manifestly wrong or clearly erroneous, or if
the chancellor applied an erroneous legal standard."
Smith v. Smith, 97 So.3d 43, 46 (¶7) (Miss.
2012). "[T]his Court cannot reweigh the evidence and
must defer to the chancellor's findings of the facts, so
long as they are supported by substantial evidence."
Hall v. Hall, 134 So.3d 822, 828 (¶21) (Miss.
Ct. App. 2014). Thus, on appeal in a child custody case, the
issue is not whether this Court "agrees with the
chancellor's ruling, " but only whether "the
chancellor's ruling is supported by credible
evidence." Hammers v. Hammers, 890 So.2d 944,
950 (¶14) (Miss. Ct. App. 2004).
"[T]he polestar consideration in child custody cases is
the best interest and welfare of the child."
Albright, 437 So.2d at 1005. In evaluating the
child's best interest, the chancellor must consider the
following factors: (1) age, health, and sex of the child; (2)
which parent had "continuity of care prior to the
separation"; (3) "which has the best parenting
skills"; (4) which has "the willingness and
capacity to provide primary child care"; (5) both
parents' employment responsibilities; (6) "physical
and mental health and age of the parents"; (7)
"emotional ties of parent and child"; (8)
"moral fitness of the parents"; (9) "the home,
school and community records of the child"; (10) the
child's preference, if the child is at least twelve years
old; (11) the stability of the home environment ...