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Ballard v. Ballard

Supreme Court of Mississippi, En Banc

August 29, 2019

CANDICE RAE SHURDEN BALLARD
v.
JOE MARSHALL BALLARD

          DATE OF JUDGMENT: 05/23/2018

          DESOTO COUNTY CHANCERY COURT HON. PERCY L. LYNCHARD, JR. JUDGE

          TRIAL COURT ATTORNEYS: A. E. (RUSTY) HARLOW, JR. H. R. GARNER NANCY M. MADDOX SARAH JEAN LIDDY KURT STEVEN SAUL, JR. SABRINA D. HOWELL

          ATTORNEY FOR APPELLANT: JERRY WESLEY HISAW

          ATTORNEY FOR APPELLEE: SABRINA D. HOWELL

          BEAM, JUSTICE

         ¶1. 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.

         FACTS AND PROCEDURAL HISTORY

         ¶2. 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.[1] 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 129.[2]

         ¶3. 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.

         ¶4. 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.

         ¶5. 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.

         LAW AND ANALYSIS

         ¶6. 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 analysis.

         ¶7. 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. 2007)).

         I. Whether the chancellor erred in following the instructions given by this Court.

         ¶8. 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.

         ¶9. 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.

         ¶10. 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 litem's report.

         ¶11. "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.

         II. Whether the chancellor erred in finding that custody of Jill could be awarded to Marshall.

         ¶12. 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.[3] 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. ...


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