OF JUDGMENT: 05/23/2018
COUNTY CHANCERY COURT HON. PERCY L. LYNCHARD, JR. JUDGE
COURT ATTORNEYS: A. E. (RUSTY) HARLOW, JR. H. R. GARNER NANCY
M. MADDOX SARAH JEAN LIDDY KURT STEVEN SAUL, JR. SABRINA D.
ATTORNEY FOR APPELLANT: JERRY WESLEY HISAW
ATTORNEY FOR APPELLEE: SABRINA D. HOWELL
This Court remanded this case for further proceedings on
child custody. Ballard v. Ballard, 255 So.3d 126
(Miss. 2017). Finding that the chancellor was not manifestly
wrong or clearly erroneous in granting custody of the three
minor children to Marshall Ballard, we affirm.
AND PROCEDURAL HISTORY
The facts were summarized in Ballard. Candice and
Marshall Ballard were married in 2006, and three children
were born during the marriage: (1) Jane, who was born in
2007; (2) John, who was born in 2009; and (3) Jill, who was
born in 2011. Id. at 128-29. "Neither
party disputes the fact that Marshall is not the biological
father of Jill, who was born as a result of a
marital-separation affair." Id. at
Marshall filed for divorce, and the parties later agreed to
an irreconcilable-differences divorce in which the chancery
court would decide child custody, among other issues.
Id. The chancellor awarded custody to the Department
of Human Services but placed the children with Marshall's
parents. Id. at 130.
Candice appealed, arguing that the chancellor relied strictly
on hearsay in making the custody determination. Id.
at 131. This Court in Ballard agreed with Candice
and reversed and remanded the issue of child custody.
Id. at 134.
On remand, the chancery court awarded custody of the children
to Marshall. Aggrieved, Candice appeals, arguing that the
instructions given by this Court were simply to review the
determination of Candice's fitness without the hearsay
evidence, not to conduct a new trial on custody.
Candice raises the following issues on appeal:
I. Whether the chancellor erred in following the instructions
given by this Court.
II. Whether the chancellor erred in finding that custody of
Jill could be awarded to Marshall.
III. Whether the chancellor erred in the Albright
The standard of review in domestic-relations cases is
well-established: "When this Court reviews
domestic-relations matters, our scope of review is limited by
the substantial evidence/manifest error rule. Therefore, we
will not disturb the findings of a chancellor unless the
chancellor was manifestly wrong, clearly erroneous or an
erroneous legal standard was applied." Darnell v.
Darnell, 167 So.3d 195, 201 (Miss. 2014) (Darnell
I) (internal quotation marks omitted) (quoting
Giannaris v. Giannaris, 960 So.2d 462, 467 (Miss.
Whether the chancellor erred in following the
instructions given by this Court.
This Court reversed and remanded the issue of child custody
for further proceedings, because it found that the
chancellor's reliance on hearsay evidence in the guardian
ad litem's report had been erroneous. Ballard,
255 So.3d at 134. Candice contends that on remand the
chancellor was only to consider whether she was unfit or
whether the presumption against custody by a violent parent
had been implicated by her.
Relying on Darnell II, Candice asserts that the
trial court cannot go beyond the instructions of the
appellate court. Darnell v. Darnell, 234 So.3d 421,
424 (Miss. 2017) (Darnell II). However, the facts in
Darnell II are dissimilar. In Darnell II,
this Court specifically directed the trial court to make new
findings on remand about whether two statements were
admissible evidence and to conduct a new Albright
analysis in light of that evidence. Id.
Here, no such instructions limited the trial court's
consideration of the issue on remand. The instructions were
simply to reconsider custody of the three minor children
without using the hearsay evidence from the guardian ad
"The preeminent consideration of the chancellor on
remand should be the best interest of the children."
Jerome v. Stroud, 689 So.2d 755, 760 (Miss. 1997)
(Prather, P.J., specially concurring). On remand, the
chancellor found that Marshall was best suited to have
custody both of his two biological children and also of Jill,
for whom he had served in loco parentis. Therefore,
the chancellor on remand did not go beyond the instructions
given by this Court.
Whether the chancellor erred in finding that custody
of Jill could be awarded to
While Candice contends that the chancellor exceeded the scope
of the instructions on remand, she argues that Marshall's
having acted in loco parentis for Jill was not
enough to overcome the natural-parent presumption with regard
to Candice's custody of Jill. Candice correctly states
that "[t]he law recognizes that parents are the natural
guardians of their children, and 'it is presumed that it
is in the best interest of a child to remain with the natural
parent as opposed to a third party.'" Davis v.