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Brown v. Anslum

Court of Appeals of Mississippi

July 24, 2018

JUSTIN BRYCE BROWN APPELLANT
v.
KRISTIN FRANKLIN ANSLUM APPELLEE

          DATE OF JUDGMENT: 12/20/2016

          SIMPSON COUNTY CHANCERY COURT TRIAL JUDGE: HON. DAVID SHOEMAKE

          ATTORNEY FOR APPELLANT: M. JUDITH BARNETT

          ATTORNEYS FOR APPELLEE: JEFFREY BIRL RIMES SARAH LINDSEY OTT

         EN BANC.

          WESTBROOKS, JUDGE

         ¶1. This appeal arises from a custody dispute between Justin Bryce Brown and Kristin Franklin Anslum. Brown appeals the decision of the Simpson County Chancery Court awarding him and Anslum joint physical and legal custody of their minor child. After review of the record, we affirm.

         FACTS AND PROCEDURAL HISTORY

         ¶2. Brown and Anslum both lived with K.B.[1] from the time of her birth until she was four months old; however, the two were never married. They separated on August 15, 2013. The separation spurred from an argument over free Saints football game tickets Anslum received from her boss. Because of conflicting stories, the actual events of that night are somewhat unknown.

         ¶3. Brown contends that he caught Anslum inviting another man to the game with her because he told Anslum they could not afford to attend. Anslum maintains that she was on the phone with Brown's mother asking her to babysit their minor child and Anslum's other child because Brown said he would not keep them even if he stayed home. Anslum alleges that Brown beat her up and hit her oldest daughter. However, Brown and his parents contend that Anslum knocked her head against the refrigerator and willfully fell to the floor. Further, they maintain that Anslum did not have any visible bruises after the alleged altercation.

         ¶4. After the separation, K.B. lived with Anslum from August 2013 to April 2014. In August 2013, Brown filed a complaint for determination of paternity and sole custody, and Anslum filed an answer and counter-claim, requesting sole custody of K.B. In November 2013, a temporary order was entered awarding Anslum temporary legal and physical custody subject to Brown's supervised visitation at his parents' home. However, in January 2014, Brown tested positive for methamphetamine. As a result, his right to visitation of K.B. was suspended. Subsequently, he took another drug test and passed. Then, upon the recommendation of the Guardian Ad Litem (GAL), the parties agreed to joint physical custody of K.B.

         ¶5. In both April 2014 and August 2014, Anslum was admitted to Brentwood Hospital. The first incident was because of an altercation between Anslum and her stepmother. Anslum alleged that her stepmother tried to choke her, but law enforcement reported seeing Anslum grabbing her own neck. The second incident was due to what was described as an overdose on Valium after a trip to Pensacola, Florida. It was alleged that Anslum was very intoxicated and could not adequately care for her children during the trip. However, Anslum disputes these allegations.

         ¶6. Brown's mother, Marcia, had custody of K.B. from April 2014 to August 2014 due to Anslum having a nervous breakdown and Brown failing his drug test. However, in July 2014, the GAL recommended that Brown receive the right to full custody of K.B., subject to Anslum's right to visitation every other week.

         ¶7. In 2016, Anslum's doctor gave her a good report and stated that Anslum was only on one medication at the time.[2] Anslum also reported that her mood, maturity, and cognitive abilities had improved, and that her doctor expressed that she had consistently attended her appointments and had improved significantly.

         ¶8. In 2016, Brown was awarded temporary legal and physical custody of the minor child subject to Anslum's visitation rights. By this time, however, K.B. had already been living with Brown since August 2014-except when Brown's mother kept K.B. Anslum filed a petition for sole custody of K.B.

         ¶9. After a three-day trial, the chancellor awarded the parties joint physical and legal custody with the parties alternating their regular physical custody of K.B. Brown timely appeals.

         STANDARD OF REVIEW

         ¶10. In Carter v. Escovedo, 175 So.3d 583, 585 (¶7) (Miss. Ct. App. 2015), this Court stated:

In child-custody decisions, the polestar consideration is the best interest of the child. We cannot substitute our judgment for the chancellor's. Instead, our standard of review is quite narrow. We only reverse child-custody determinations if the chancellor is manifestly wrong, clearly erred, or applied the wrong legal standard. When chancellors properly apply and consider the Albright [3] factors, there is no manifest error.

(Citations omitted).

         DISCUSSION

         I. Whether parties have to expressly apply for joint custody in order for the chancellor to award joint custody.

         ¶11. Brown argues that the parties have to make an express "application" asking for joint custody in order for the chancellor to order joint custody. However, Brown does not cite any authority in favor of his argument outside of Mississippi Code Annotated section 93-5-24(2)-(3) (Rev. 2013). This code section states in part:

(2) Joint custody may be awarded where irreconcilable differences is the ground for divorce, in the discretion of the court, ...

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