OF JUDGMENT: 09/19/2017
OKTIBBEHA COUNTY CHANCERY COURT TRIAL JUDGE: HON. DOROTHY
ATTORNEY FOR APPELLANT: JAMES PAUL TINSLEY
ATTORNEY FOR APPELLEE: CARRIE A. JOURDAN
J. WILSON, P.J., GREENLEE AND McCARTY, JJ.
Marcus and Sumie Sanders consented to an irreconcilable
differences divorce and agreed that the chancellor would
determine custody of their daughter, Kristen, and related
issues. After a trial, the chancellor awarded Sumie physical
custody of Kristen and granted Marcus reasonable visitation.
Marcus argues that the chancellor's custody decision was
based on a flawed Albright analysis. He also argues
that the chancellor failed to address his request for
declaratory relief related to an alleged risk of
international child abduction. Finally, Marcus argues that
the chancellor erred by following an unapproved local rule
regarding temporary custody hearings. We find no error and
AND PROCEDURAL HISTORY
Marcus Sanders moved from Mississippi to Japan to teach
English. In Japan, he began a relationship with Sumie, a
Japanese citizen. Marcus and Sumie married in 2011. In
addition to teaching, Marcus started a business making
YouTube videos. Sumie worked for a pharmaceutical company and
also studied law. In 2013, Sumie gave birth to Kristen, the
couple's only child. After Kristen's birth, Sumie
stayed at home, which led to some financial difficulty for
the family. In 2014, they decided to move to Mississippi to
be closer to Marcus's family and save money. Sumie also
testified that Marcus was unhappy in Japan and wanted to move
home to Mississippi.
After Marcus moved to Mississippi, Sumie and Kristen remained
in Japan for three months while Sumie waited to obtain a
visa. When Sumie and Kristen finally arrived in Mississippi,
they moved with Marcus into his parents' home in Ethel.
Marcus had decided to focus on his growing YouTube business,
and in Ethel he was able to record and produce his videos in
a studio on his parents' property that his father had
built. Sumie did not work outside the home, although she did
earn some money online by buying and selling American brand
name items to people in Japan.
Marcus primarily worked on his YouTube videos at night, so
Sumie was Kristen's primary caregiver. Marcus's
parents, Mark and Melinda, also helped with Kristen's
care. Marcus usually was asleep during the day due to his
unusual work hours, but he did occasionally play with Kristen
or help put her to bed at night.
Sumie did not have a car or a driver's license when they
moved in with Marcus's parents; thus, she had to rely on
her mother-in-law for transportation. Even after Sumie
obtained a driver's license, she had to ask her
mother-in-law to borrow a car. Sumie was not happy in Ethel.
After living with Marcus's parents for about a year,
Marcus, Sumie, and Kristen moved to an apartment in
Starkville. Living in Starkville allowed Sumie to take
Kristen on outings to local events, the library, book stores,
and the swimming pool at their apartment complex. Sumie made
some new friends who also had children, and they would often
have playdates. Sumie and Marcus shared a car, but she
testified that Marcus did not allow her to go any farther
than Columbus without his permission.
In late 2015, Marcus and Sumie had a fight. In the heat of
the moment, Sumie said that she might just
"disappear." Marcus testified that this remark
scared him and that he became fearful that Sumie would
abscond with Kristen to Japan. He started keeping
Kristen's passport locked away from Sumie.
In March 2016, Marcus went to Atlanta to visit some friends.
While he was out of town, Sumie left the home. She and
Kristen went to a domestic abuse shelter, although Sumie does
not allege that Marcus ever physically abused her or Kristen.
She testified that she left because she was fearful for her
safety and her daughter's safety because Marcus had
become extremely controlling. Sumie testified that Marcus
prevented her from traveling freely and tightly controlled
her spending. She said that Marcus always wanted receipts for
any money that she spent and would not give her access to the
family Amazon account.
When Sumie moved out, she filed a complaint for divorce and
for custody of Kristen. Marcus answered and filed a
counterclaim for divorce and custody. On April 22, 2016, an
agreed order was entered setting a hearing on temporary
matters, including custody. The order provided that temporary
matters would be decided based on affidavits submitted by the
parties. Both parties submitted multiple affidavits. On May
9, 2016, the chancery court entered a temporary order
granting Sumie temporary physical custody of Kristen,
granting Marcus temporary visitation of every other weekend
plus three weeks during the summer, and granting the parties
temporary joint legal custody. In February 2017, the parties
withdrew their fault-based claims for divorce and consented
to an irreconcilable differences divorce. They agreed that
the chancellor would determine Kristen's custody,
visitation, and related issues. In March 2017, the case
proceeded to trial on the stipulated issues.
After the separation, Marcus moved back to his parents'
home in Ethel, and Sumie and Kristen moved back into the
couple's apartment in Starkville. Sumie testified that
she had been looking for work in Mississippi, but she was
unable to find a job. She testified that she had some
interviews scheduled in New York but that if she could not
find a job in the United States, she intended to return to
Japan. While Marcus had Kristen for three weeks of visitation
under the temporary custody order, Sumie went home to Japan
to visit her family. While Sumie was in Japan, she obtained
certifications that she thought might help her find a job as
a fitness, diving, or swimming instructor. She and Kristen
had been able to get by on temporary child support and
alimony, as well as money that her mother sent from Japan.
Sumie testified that if she ever did move back to Japan, she
would want Marcus to have lengthy visits with Kristen twice a
year. She agreed that Marcus and Kristen should have a
relationship and that he was not a bad father. But she also
believed that Marcus did not always think about his family
and how his actions affected them. She pointed to the fact
that Marcus worked most nights and slept during the day and
rarely ate meals with her and Kristen.
Marcus testified that he had modified his working hours since
the separation in order to be able to take care of Kristen
during visitation. He denied any suggestion that he was not
around to help care for Kristen. He testified that he would
often play with her or watch TV with her when they lived at
his parents' home in Ethel. He acknowledged that his
working hours were unusual, but he believed that he saw
Kristen more often than a parent who worked a
"normal" nine-to-five job.
Marcus asserted that Sumie did not give Kristen enough
attention. He thought that Sumie was on her computer too much
and that she allowed Kristen to watch age-inappropriate
videos. He also said that Sumie did not pay enough attention
to Kristen's clothing and shoe needs. He claimed that
Kristen's shoes were slightly too large and were causing
blisters. He was also concerned about Kristen's education
if Sumie moved back to Japan because Kristen's Japanese
is not on par with her peers in Japan.
Marcus denied that he was controlling. He said Sumie had
access to his parents' car when they lived in Ethel and
could make trips to the grocery store. Marcus acknowledged
that Sumie was unhappy in Ethel, but he said that she did not
make an effort to socialize with others. He denied telling
her that she could not go farther than Columbus but admitted
that he did have some trust issues after Sumie said that she
might "disappear." He also admitted that he kept