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Harden v. Scarborough

Court of Appeals of Mississippi

March 27, 2018

SEAN HARDEN APPELLANT
v.
DANIELLE DAWN SCARBOROUGH APPELLEE

          DATE OF JUDGMENT: 08/30/2016

          COURT 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 GRISSOM.

          ATTORNEY FOR APPELLEE: DIANNE HERMAN ELLIS.

          BEFORE LEE, C.J., WILSON AND WESTBROOKS, JJ.

          WILSON, J.

         ¶1. 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.

         FACTS AND PROCEDURAL HISTORY

         ¶2. 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 hospital.

         ¶3. 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 child support.

         ¶4. 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.

         ¶5. 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.

         ¶6. 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 testified briefly.

         ¶7. 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[1] 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 such visit."

         ¶8. 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.

         ANALYSIS

         I. Child Custody

         ¶9. "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).

         ¶10. "[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 ...


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