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Lee v. Bramlett

Court of Appeals of Mississippi

February 26, 2019

LAUREN LEE APPELLANT
v.
BEAU BRAMLETT APPELLEE

          DATE OF JUDGMENT: 08/08/2017

          TRIAL JUDGE: HON. M. RONALD DOLEAC COURT FROM WHICH APPEALED: LAMAR COUNTY CHANCERY COURT

          ATTORNEY FOR APPELLANT: WILLIAM C. WALTER

          ATTORNEYS FOR APPELLEE: ROBERT R. MARSHALL KIMBERLY-JOY LOCKLEY MIRI

         EN BANC

          BARNES, C.J.

         ¶1. Lauren Lee and Beau Bramlett are the natural parents of a minor child, Gregory, [1] born out of wedlock in 2010. For the first four years of the child's life, Lee and Gregory lived with Bramlett at his residence in Hattiesburg, Mississippi. Bramlett worked offshore for three-week intervals (twenty-one days on/twenty-one days off); Lee primarily stayed at home with Gregory but occasionally worked at a part-time job. In May 2015, the couple ended their relationship, and Lee filed a complaint to establish child custody, seeking child support and temporary and permanent legal and physical custody of Gregory. Acknowledging he was the child's natural father, Bramlett requested emergency custody.

         ¶2. In a temporary order, the Lamar County Chancery Court adjudicated Bramlett as the natural father and ordered the parties to share physical custody of Gregory on a week-to-week basis. Bramlett was ordered to pay Lee monthly child support of $1, 000 and to provide medical insurance for the child. On September 16, 2016, the chancery court appointed Stacey Sims as the guardian ad litem (GAL). Kristin McGee was later substituted as the GAL.

         ¶3. On June 10, 2017, Lee moved to Madison, Mississippi, with her fiancé, Matthew Pringle, and their newborn daughter so Pringle could start a new job.[2] A few days later, Lee and Pringle were married. Bramlett filed a petition for emergency relief requesting permanent physical custody of Gregory. A trial was held June 29, 2017, and July 31, 2017. Lee admitted Gregory had an extensive family-support system in Hattiesburg and was doing well in his school there. But she argued that she should be given primary physical custody because she is a stay-at-home mother and that Gregory would do equally well in the Madison County School District. Lee also noted Bramlett's work schedule as a reason she should have custody. Bramlett, who has worked offshore in three-week intervals for fifteen years, testified that he earned a very good income at his job, enabling him to provide financially for all of Gregory's needs. Bramlett also said he could not earn a comparable income if he changed jobs to be home more often. His parents, who live nearby, testified they would take care of Gregory when Bramlett was away at work. Bramlett also lived with his fiancée (now wife) who could take care of Gregory.

         ¶4. The chancery court entered its opinion and final judgment on August 8. Considering the Albright[3] factors in conjunction with the GAL's report, the court awarded primary physical custody to Bramlett and joint legal custody to both parties. Lee was granted visitation every other weekend. Lee appeals the chancery court's decision. Finding no manifest error in the court's ruling, we affirm.

         STANDARD OF REVIEW

         ¶5. "This Court will only reverse a chancery court's decision 'if it was manifestly wrong or clearly erroneous, or if the chancellor applied an erroneous legal standard.'" Mitchell v. Mitchell, 180 So.3d 810, 815 (¶6) (Miss. Ct. App. 2015) (quoting Smith v. Smith, 97 So.3d 43, 46 (¶7) (Miss. 2012)). We review questions of law de novo. Id. (citing Irving v. Irving, 67 So.3d 776, 778 (¶11) (Miss. 2011)).

         DISCUSSION

         I. Whether the chancery court erred in disregarding the natural parent presumption.

         ¶6. A "bedrock principle of Mississippi family law" is the natural parent presumption, which gives preference to a child's natural parents, "even against those who have stood in their place, honor[ing] and protect[ing] the fundamental right of natural parents to rear their children." Neely v. Welch, 194 So.3d 149, 155 (¶19) (Miss. Ct. App. 2015). It is not disputed that Bramlett is Gregory's natural parent. However, Lee argues that because Bramlett works offshore and must rely on his parents and his wife to care for the child during that time, the chancery court's ruling essentially constituted "a de facto award of custody and/or visitation rights to the grandparents over [Lee] who was expressly found to be a fit parent."

         ¶7. Custody was awarded to Bramlett, Gregory's natural father. Bramlett's parents were not a party to this proceeding and have no custody rights under the order. The chancery court and GAL simply factored the paternal grandparents into the custody analysis because they volunteered to provide child care when Bramlett is working. There are no Mississippi cases on point with these facts, but we find instructive a holding by the South Carolina Court of Appeals. In Brown v. Brown, 606 S.E.2d 785, 791 (S.C. Ct. App. 2004), the court expressly rejected the principle of "de facto" custody where the father, who was awarded physical custody, worked long late-night shifts and lived with his parents. Similarly, in Burns v. Burns, No. COA10-50, 2011 WL 531473, **7-8 ( N.C. Ct. App. Feb. 15, 2011), the North Carolina Court of Appeals found that although the minor children were often in the care of the paternal grandparents while in the father's custody, the grandparents had no rights under the trial court's order, "much less . . . any kind of 'de facto custody' of the minor children or any other legally enforceable rights."

         ¶8. The dissent agrees with Lee, finding that she "should have been favored in a custody analysis to provide care instead of the paternal grandparents." Applying the dissent's reasoning, no parent who works offshore or out-of-town for extended periods of time would be granted custody without a finding that the other parent is unfit or has abandoned the child. We cannot adopt such a general rule as it disregards the chancery court's responsibility to decide what is in the best interest of the child. Here, it is clear that custody was awarded to Bramlett, not his parents; therefore, the "natural parent presumption" applies equally to Lee and Bramlett. And, while the dissent is correct that Gregory lived with Lee for the first six years of his life, it fails to mention that Bramlett also lived in the home for the first four years of the child's life. The record further shows that both parties have extended family living in the Hattiesburg area; Lee's move to Madison uprooted Gregory not only from his father, but also from these close relatives. Bramlett's mother testified that before Bramlett and Lee split, she was Gregory's sole babysitter, stating:

[Gregory] was at our house constantly. I was at [Gregory's] keeping him, and I kept [Gregory] even when [Lee] wasn't in school and - she would go do things, whatever. No, I kept - he stayed at our home. He has his own rooms at our home. He has everything he needs. He was there that often.

         Bramlett's father also testified that Gregory had spent a lot of time at their home during the first four years of his life. Gregory will live with Bramlett for the three-week period when he is not working. The dissent fails to note that Lee will have visitation with Gregory two of the three weekends that Bramlett is gone for work and that Gregory will be in school during the week.

         ¶9. It is for the chancery court to take all of these factors into account in determining the best interest of the child; it has done so. We find no merit to this argument.

         II. Whether the chancery court erred in accepting the GAL's recommendations.

         ¶10. Although not obliged to follow the GAL's recommendations, the chancery court nevertheless found that her report was "supported by the preponderance of the credible evidence presented at trial." Lee argues that the GAL only spent 5.8 hours working on the case before compiling her report and failed to comply with Mississippi's standards governing a GAL's investigation. Specifically, Lee says the GAL did not interview key witnesses, such as Bramlett's parents, or investigate her complaints regarding Bramlett's "anger issues and violent propensities."

         ¶11. "The requirements of a [GAL] are that [s]he be 'competent, without interests adverse to the child, and . . . adequately informed as to [her] duties.'" R.L. v. G.F., 973 So.2d 322, 325 (¶11) (Miss. Ct. App. 2008) (quoting S. N.C. v. J.R.D., 755 So.2d 1077, 1082 (¶16) (Miss. 2000)). The GAL's role "is to act as a representative of the court and to assist the court in protecting the interests of an incompetent person by investigating and making recommendations to the court." Id. In appointing the GAL, the chancery court instructed:

Specifically, the [GAL] shall investigate all allegations in the pleadings concerning custody, visitation, support, and any and all other issues or concerns affecting the welfare and best interest of the minor child. . . . The [GAL] may interview the parties and witnesses and participate in discovery and pretrial preparations in this case as necessary for her investigation.

         The Mississippi Supreme Court has held:

In Mississippi jurisprudence, the role of a [GAL] historically has not been limited to a particular set of responsibilities. In some cases, a [GAL] is appointed as counsel for minor children or incompetents, in which case an attorney-client relationship exists and all the rights and responsibilities of such relationship arise. In others, a [GAL] may serve as an arm of the court-to investigate, find facts, and make an independent report to the court. The [GAL] may serve in a very limited purpose if the court finds such service necessary in the interest of justice. Furthermore, the [GAL's] role at trial may vary depending on the needs of the particular case. The guardian ad litem may, in some cases, participate in the trial by examining witnesses. In some cases, the [GAL] may be called to testify, and in others, the role may be more limited.

S.G. v. D.C., 13 So.3d 269, 280-81 (¶47) (Miss. 2009).

         ¶12. We find that the GAL met the requirements set forth by the chancery court. She reviewed the pleadings, as well as Gregory's school records. McGee acknowledged at trial that she did not interview Bramlett's parents, but she explained: "Regarding the grandparents, there were no allegations that there was anything unfit about them. There were no allegations of abuse, neglect, that their home was unsafe, or anything to that matter." She interviewed Bramlett's new wife at the hearing and had no changes to her report or recommendation. The GAL's report also referred to Lee's claim that Bramlett had acted in a threatening manner toward her. McGee testified at trial:

I met with the parties. I reviewed the municipal court records relating to the allegations of domestic abuse from [Bramlett] to [Lee]. That matter, from what I understand, is still pending before the municipal court. . . . But as far as that goes, I'm going to defer to what the outcome in the court is, and I can't really ...

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