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Sellers v. Rinderer

Court of Appeals of Mississippi

June 5, 2018

RENEE DIANE THACKER SELLERS APPELLANT
v.
NICHOLAS RICHARD RINDERER APPELLEE

          DATE OF JUDGMENT: 08/05/2016

          LAMAR COUNTY CHANCERY COURT, HON. M. RONALD DOLEAC JUDGE.

          ATTORNEY FOR APPELLANT: BRANDON L. BROOKS.

          ATTORNEY FOR APPELLEE: PHILLIP LONDEREE.

          BEFORE GRIFFIS, P.J., BARNES AND GREENLEE, JJ.

          GRIFFIS, P.J.

         ¶1. Renee Diane Thacker Sellers appeals the Lamar County Chancery Court's Albright[1] analysis and award of physical custody to Nicholas Richard Rinderer ("Nick"). We find no error and affirm.

         FACTS AND PROCEDURAL HISTORY

         ¶2. Nick and Renee are the natural parents of Melanie, born in May 2013, and Paul, born in March 2014.[2] Nick and Renee were never married. Both Melanie and Paul were born to the parties while Renee was married to another man, Michael Sellers. Renee and Michael were divorced November 24, 2014, and share a daughter, Sophia.

         ¶3. This action commenced on August 12, 2013, when Nick filed a "complaint for adjudication of paternity, custody, support and other matters, " along with a complaint for emergency custody. A temporary order was entered August 21, 2013, which adjudicated Nick the natural father of Melanie, [3] awarded joint legal custody to Nick and Renee, and temporary physical custody to Renee. Nick was awarded visitation two days per week. Additionally, the chancellor ordered Nick and Renee to meet with and be evaluated by Dr. John Pat Galloway. A guardian ad litem (GAL) was subsequently appointed by the chancellor.

         ¶4. A review hearing was held on October 3, 2013, wherein it was noted that Renee was pregnant and Nick was "believed by the parties to be the father" of the child. Nick's visitation with Melanie was increased to include overnight visitation. Additionally, the chancellor ordered the parties to undergo a psychological evaluation. Thereafter, Nick and Renee were evaluated by Dr. Beverly Smallwood.

         ¶5. During a hearing on August 25, 2014, the chancellor found that DNA testing confirmed Nick was Paul's natural father. The chancellor awarded Nick graduated visitation with Paul and ordered the parties to attend counseling.

         ¶6. On February 18, 2015, the Lamar County Department of Human Services filed a complaint for support and other relief against Nick regarding child support for Melanie and Paul. On February 1, 2016, the chancellor ordered Nick to pay $193 per month in child support and expanded Nick's visitation with the children to three full days per week, beginning 6:00 p.m. Tuesday to 6:00 p.m. Friday. Nick subsequently amended his "complaint for adjudication of paternity, custody, support and other matters" to include Paul.

         ¶7. Following a two-day trial, the chancellor entered an opinion and final judgment on August 5, 2016, wherein he adopted the findings, report, and recommendations of the GAL. "Based on the credible evidence and consideration of the [Albright] factors and findings, " the chancellor awarded joint legal custody of Melanie and Paul to Nick and Renee, and physical custody to Nick, with Renee "having periods of visitation more than standard."

         ¶8. Renee moved for reconsideration, which the chancellor denied. Renee now appeals and argues the chancellor erred in his Albright analysis and decision to award physical custody to Nick.

         STANDARD OF REVIEW

         ¶9. A "chancellor's findings will not be disturbed upon review unless the chancellor was manifestly wrong, clearly erroneous[, ] or applied an incorrect legal standard." Irving v. Irving, 67 So.3d 776, 778 (¶11) (Miss. 2011). However, questions of law are reviewed de novo. Id. ANALYSIS

         ¶10. In all child-custody cases, the primary consideration is the best interest and welfare of the child. Albright, 437 So.2d at 1005. When conducting an Albright analysis, the following factors are to be considered:

(1) age, health, and sex of the child; (2) a determination of the parent that has had the continuity of care prior to the separation; (3) which has the best parenting skills and which has the willingness and capacity to provide primary child care; (4) the employment of the parent and responsibilities of that employment; (5) physical and mental health and age of the parents; (6) emotional ties of parent and child; (7) moral fitness of the parents; (8) the home, school and community record of the child; (9) the preference of the child at the age sufficient to express a preference ...

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