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Singleton v. Buford

Court of Appeals of Mississippi

June 18, 2019

TERRIE LYNN SINGLETON APPELLANT
v.
ORLANDO R. BUFORD APPELLEE

          DATE OF JUDGMENT: 08/03/2017

          PEARL RIVER COUNTY CHANCERY COURT HON. M. RONALD DOLEAC TRIAL JUDGE.

          ATTORNEY FOR APPELLANT: WENDY WALKER BORRIES

          ATTORNEYS FOR APPELLEE: MARCUS ALAN McLELLAND GLENN LOUIS WHITE.

         EN BANC.

          J. WILSON, P.J.

         ¶1. Terrie Singleton and her attorney failed to appear at the hearing to determine custody of Singleton's three-year-old son, Marion. As a result, only Marion's father, Orlando Buford, and Buford's wife (Marion's stepmother) testified at the hearing. At the end of the hearing, the court awarded physical custody and sole legal custody of Marion to Buford.

         ¶2. Singleton and her attorney failed to appear at the hearing because her attorney calendared the wrong court date and then gave Singleton the wrong date as well. At some point on the day of the hearing, an employee of the attorney realized the mistake. Counsel then sought a continuance, but it was too late. The hearing was over, and the chancellor had ruled from the bench. Singleton filed a motion for reconsideration even before entry of the judgment awarding custody, and seven days after the judgment was entered she filed a motion for a new trial or reconsideration. However, the chancery court denied Singleton's requests for relief.

         ¶3. We conclude that the denial of Singleton's motion for a new trial or reconsideration was an abuse of discretion. The interest in finality is not nearly as strong a consideration when, as in this case, relief is sought within the ten-day time limit of Mississippi Rule of Civil Procedure 59. On the other side of the balance, the paramount concern in a child custody case is the best interest of the child, and the chancellor will be better equipped to assess the child's best interest if he receives evidence from both parents rather than just one. On the facts of this case, we conclude that there was no sound reason for the chancery court not to allow Singleton to present evidence. Therefore, the denial of her motion was an abuse of discretion, and we reverse and remand for a new trial on the issue of custody and related issues of support and visitation.

         FACTS AND PROCEDURAL HISTORY

         ¶4. Singleton and Buford were never married but have a son, Marion, who was born in 2014. A few months after Marion was born, Buford signed an acknowledgment of paternity and agreed to pay child support to the Department of Human Services (DHS). Marion continued to live with Singleton, although there was no judicial determination of custody or visitation.

         ¶5. In March 2016, Singleton accepted a new job in Seattle and decided to allow Marion to live with Buford and his wife, Colandra, for at least some period of time after she moved. Buford worked in Texas for up to thirty days at a time, so Singleton and Buford both signed a durable power of attorney that gave Colandra authority to make healthcare decisions for Marion in their absence.

         ¶6. Singleton later decided not stay in Seattle and returned to Mississippi. Marion continued to live primarily with Buford and Colandra, but according to Buford, Singleton exercised "visitation" with Marion "[j]ust about every weekend." This arrangement apparently continued until February 2017. Buford testified that in February 2017 Singleton refused to return Marion following her weekend "visitation." Buford speculated that Singleton kept Marion because she had learned that Buford had inquired with DHS about terminating his child support payments.

         ¶7. In May 2017, Buford filed a complaint for custody and child support. Buford sought physical custody, sole legal custody, child support, and other relief. He asked the court to grant Singleton only "specific and/or restricted visitation rights." On June 14, 2017, Singleton was served with the complaint, a Rule 4 summons, and a Rule 81 summons to appear at a hearing on June 21, 2017. Singleton promptly retained an attorney, who entered an appearance and moved for a continuance on June 20, 2017. The chancery court granted a continuance and entered an agreed order resetting the Rule 81 return date for July 20, 2017. The order stated "that the parties agree[d] to waive the necessity of any further Rule 81 process." On July 13, 2017, Singleton answered the complaint and asserted a counterclaim for custody and other relief. Singleton's counterclaim alleged that Marion had lived with her "since birth except for a few months when [Buford] kidnaped [him], moved to Hattiesburg, and refused to answer [Singleton's] calls or tell [her] where her child was."

         ¶8. Singleton and her attorney failed to appear at the hearing in chancery court on July 20, 2017. Buford and Colandra testified briefly. The chancellor then observed that "this is an initial custody determination" because previously there had been only an acknowledgment of paternity and support order. Therefore, the chancellor stated that he was "obligated to receive testimony under the Albright factors notwithstanding that Ms. Singleton and her counsel [were] not present." The chancellor then questioned Buford briefly regarding each of the Albright[1] factors, including eliciting Buford's opinions regarding Singleton's parenting skills, her emotional ties to the child, her moral fitness, her employment, etc. The chancellor made findings on each factor as he questioned Buford. The chancellor then ruled as follows:

Given the circumstance, whatever it is, of [Singleton's] nonappearance as well as her attorney's nonappearance, then the Court finds that the Albright analysis when considered per Mr. Buford's testimony and the corroborating testimony of Mrs. Buford, that the Albright factors favor the best interest of the child being favorable to Mr. Buford as the biological father of Marion. The Court is going to grant the . . . relief requested and award sole legal and physical custody of the child to his father, Mr. Buford.

         The chancellor also ordered Singleton to pay child support and declined to award any visitation to Singleton "at [that] time." The chancellor explained that Singleton would need to file a new petition for visitation if she desired it.[2] The chancellor also struck Singleton's answer and counterclaim due to her failure to appear.

         ¶9. In a subsequent affidavit, Singleton stated that she failed to appear at the hearing because her lawyer's office told her the wrong court date. An employee of Singleton's attorney stated in an affidavit that she had mistakenly calendared the hearing for August 20, that she told Singleton the wrong court date, and that she did not realize her mistake until the day of the hearing. By that point, Singleton's attorney was in court in another county. When counsel became aware of her office's ...


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