IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO. 2016-CA-00785-COA THOMAS E. ETHRIDGE, III APPELLANT

v. CHRISTY WARD ETHRIDGE APPELLEE
DATE OF JUDGMENT: 01/05/2016 TRIAL JUDGE: HON. M. RONALD DOLEAC COURT FROM W HICH APPEALED: FORREST COUNTY CHANCERY COURT ATTORNEY FOR APPELLANT: DIANNE HERMAN ELLIS ATTORNEY FOR APPELLEE: S. CHRISTOPHER FARRIS NATURE OF THE CASE: CIVIL - CUSTODY DISPOSITION: AFFIRMED - 09/26/2017 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE IRVING, P.J., FAIR AND WILSON, JJ. IRVING, P.J., FOR THE COURT: ¶1. Thom as Ethridge III appeals the j u d g me n t o f t h e Forrest County C hancery Court, arguing that the court erred i n a w arding Christy Ethridge phy sical custody of their m inor child and i n n o t a w arding him a new trial af ter l earning of Christy ’s alleged perjured testim o ny . ¶2. Finding no error, we af f irm

. FACTS ¶3. Thom as and Christy were m arried February 2 0, 2015, and one child w as born to the

ma r r i a g e. Thom as and Christy f iled com peting com

plaints f o r d ivorce, and the chancery

court consolidated the c om plaints. The parties later withdrew all f a ult grounds and agreedto a divorce on the ground o f i rreconcilable dif f e rences, leaving the issue o f custody , am ong other issues, to be determ ined b y the chancery court. A t the conclusion of the trial, the court conducted an on-the-record Albright 1 analy sis to determ ine custody and v isitation. T he court awarded phy sical custody to Christy

and joint legal custody

to Christy

and Thom as. ¶4. Af ter the c ourt’s ruling, Thom as f il e d a mo t i o n f

o r r e consideration pursuant to Mississippi Rules of Civil Procedure 59 and 60, arguing t hat Christy perjured h erself during her testim ony a nd, given the Albright analy sis, he should h ave been awarded custody of the child or m ore extensive visitation. He contended that the f ailure of the trial c ourt to award custody to him was based solely u pon the court’s e xcessive reliance upon the tender-y ears d o c t r i n e and was theref

ore an abuse of d iscretion. Thom as’s m otion was denied, and thi s appeal f ollowed.
DISCUSSION ¶5. “In reviewing a c hild custody decision, we will af f irm u n l e s s t h e c h a n cellor was

m anif estly wrong, [ the decision] was clearly erroneous, or [ the chancello r ] a p p lied an

erroneous legal standard. E rror arises if the c h a n c e l l o r’s d ecision i s not supported by substantial evidence in the r ecord.” Limbaugh v. Limbaugh , 7 49 So. 2 d 1244, 1246 (¶9) (Miss. Ct. App. 1999). ¶6. Bef

ore discussing t he issues raised by Thom as, C h r i s t y h a s r a i s e d an issue that

1 T h e A l b ri

g h t f acto rs are sp ecif

ic circu m stan ces t h at m u st b e c o n sid ered b y ch an cello rs in reach in g d ecisio n s r eg ard i n g c h i ld cu sto d y . S ee A lb rig h t v. A lb rig h t, 4 3 7 S o . 2 d 1 0 0 3 (M iss. 1 9 8 3 ). 2requires addressing. She arg u e s t h at T hom as’s notice of appeal states that he i s a ppealing
f rom the April 26, 2 016 r

uling on his m otion f

o r a new trial. The notice does not state that he is appealing f

rom the judgm e nt of divorce and custody that was entered by the court on January 5, 2016. Theref

o re, she argues the notice of appeal is l im ited to the April 26, 2016 order, and the custody issue is not properly bef ore the court. ¶7. W e disagree. Thom as tim ely f iled his m ot i o n f

o r r econsideration of the January 5,
2016 judgm ent of divorce; theref ore, the January 5, 2016 judgm ent d id not becom e f inal and appealable unti l t h e c ourt disposed of t he m o tion on April 26, 2016. Thom as’s notice of appeal ref lects that he is appealing the denial of relief sought in all of his pleadings and all relief g ranted to Christy

. Consequently , the issues that Thom as asserts on a ppeal are properly bef ore t his Court, as those i ssues were placed bef ore the chancery court during t he course of the trial and in Thom as’s tim ely f iled m otion f

or a new trial.
I. Custody and Visitation ¶8. Thom as argues that the trial court incorrectly applied the t ender-y ears doctrine and the
f act t hat he i s a m ale, when it decided the issues of custody and visitation, a nd, in so doing, incorrectly c onsidered a nd applied the Albright f actors. He notes that t he chancellor stated that “ both parents can certainly c are f or, f eed, bathe, c hange diapers, r ock, h old, p ut to sleep, [ and] get u

p at night w ith their child when s he is w ith them .” He contends t hat there was no testim o ny ever presented by any witness, including Christy , that he was i ncapable of caring
f or his child. I n spite of all of t his testim ony regarding his ability to care f or the child, the

3court denied him custody and lim ited his visitation until the child reaches the age of

twenty

- f our m onths. ¶9. Next, Thom as argues that i n the absence of the tender-y ears doctrine, h e would have been awarded either phy s ical c ustody or “standard” visitation w ith h is d aughter. H e f urther
argues that such a lim i tation o f visitation based upon his gender and the tender-y ears doctrine is a n abuse of d i scretion, and in t he absence of any evidence of a need f or restrictions on the visitation to protect the child f rom harm , the chancellor com m itted reversible error. ¶10. Christy r e sponds that the court did not abuse its d iscretion by awarding her phy sical custody , nor did the court im p roperly rely on t he tender-y e a r s d o ctrine, d espite Thom as’s

r epresentations to the contrary

. The child w as only eight m onths old at the tim e of th e custody d e term ination, clearly a child o f “tender y e ars.” She notes that, even though the tender-y ears doctrine has been w eakened, “there i s still a presum p tion that a m other is generally better suited t o raise a y o ung child.” See Passmore v. Passmore , 820 So. 2d 747,
750 (¶9) (Miss. Ct. App. 2002). Theref ore, according to C hristy , the court’s reliance on the tender-y ear s doctrine was not im proper. In addition, s he notes that out of all the Albright
f actors addressed by the chancellor, two we r e i n her f avor and the rest w ere neutral. Although not a delineated f act o r , the chancellor a lso stated that “ personal values” were in Christy ’s f

avor because of

Thom as’s alcohol consum ption. ¶11. In r esponse to Thom as’s argum ents regarding visitation, Christy states that the court did not restrict his visitation. S he states that the court awarded him all reasonable visitation

4as the parties could agree upon but, at a m inim um , the schedule contained in the j udgm ent of divorce. ¶12. In reviewing the chancellor’s thorough on-the-record analy s is of the Albright f actors,

we are s a t i s f

i e d that he considered all applicable f acts and law bef

o re he reached his decision. Despite Thom as’s argum ents that the court relied too heavily o n t he tender-y ears doctrine in determ ining custody , the chancellor stated the f ollowing: “[ T]he [ court] is aware of

. . . a presum

ption under t he l aw that used to b e w h a t is called the [ t]ender[ -][ y ]ears [ d]octrine that s till appl i e s [ , ] but not w ith the weight that it did previously

. ” See Law v. Page, 6 18 S o. 2d 96, 101 (Miss. 1993). The c hancellor also i ndicated h is thorough understanding that the tender-y ears doctrine “is only one f a c tor o ut of the num erous Albright
f actors” a n d is n ot a “presum ption that the best interests of t he child in general should f avor the m other

. . . .” The court f urther acknowledged t hat “a c hild is no longer o f t ender y ears when that child can be equally cared f or by persons other than the m other.” (Quoting
Mercier v. Mercier , 717 So. 2d 304, 307 (¶15) (Miss. 1998)). ¶13. Lastly , the court declared t hat “the Albright analy sis is not a f orm ula[ ,] and i t does not involve w ho wins how m any f a ctors to get custody

. It is a balancing test and an analy sis that the law requires f

or the [ c]ourt t o consider custody

. . . . ” See O’Briant v. O’Briant , 99 So. 3d 802, 805 (¶15) (Miss. Ct. App. 2012). “[ T]he chancellor has the ultim ate discretion to

w e i g h t he evidence the way he s e es f it. The credibility of the witnesses and the weigh t o f their testim ony , as well as the interpretation of evidence where i t is capable of m o re than one

5reasonable i nterpretation, are prim arily f or the chancellor

. . . .” Johnson v
. G ray , 859 So. 2d 1006, 1013-14 (¶36) (Miss. 2003). ¶14. As to Thom a s ’ s a r g u m ent regarding visitation, we note t hat t he visitation schedule awarded b y t h e c hancellor was the sam e as contained in the tem porary order, and Thom as did not com

plain then. The visitation awarded is within the guidelines norm ally em ploy ed by chancellors in d e term ining the am ount of visitation to award. “On vi s i t a t ion issues

. . . the chancery c ourt e njoy s a large a m ount of discretion in m aking its determ ination of what is in the b e st interests o f the child. [ The Mississippi Suprem e] Court has held that the best interest o f the c hild is the m ain c oncern in determ ining visitation.” Rogers v. Morin , 791 So. 2d 815, 820 (¶9) (Miss. 2001). W e f ind n o e vidence that the chancellor abused h is discretion in awarding visitation. This issue is without m erit.
II. Perjury ¶15. The j udgm ent of divorce was entered on January 5, 2016, and Thom as f iled his m otion
f or a n ew trial on January 11, 2 016. In seeking a new t rial, he alleged that the trial court had,
in its A lbright analy sis involving the phy sical and m e ntal h ealth a nd age of the parents, f ound that both he and Christy were in good health. H owever, he alleges that C hristy h as a history of inpatient treatm ent f

or m ental-health issues, including depr e ssion and suicidal ideation, having been treated as an inpatient f or such at Pine Grove Recovery Center. He alleges that she intentionally f

ailed to disclose these f

acts and c o m m itted outright perjury at trial in order

to af f ect the outcom e of the case. Thom as asse r t s that the reason the issue of her m ental

6f

itness was not brought bef ore the court was b ecause h is trial counsel w as involved in a hitand-run accident and was distracted when he returned to the c ou r t

. I n r e s p onse, Christy points out that Thom as’s c ounsel r ested bef o re the break f

or lunch, and af

ter lunch, the judge announced his ruling f

rom t he bench, so Thom as’s c o unsel’s incident during the break had no ef f e ct on the proceedings. ¶16. In rejecting Thom as’s post-trial m otion f or a n ew t rial based o n t h e a l l egation that Christy had com m itted f

raud during the trial, the chancellor stated:
A t oral argum ent [ Christy ]’s counsel r epresented that all parties an d [ T h om as]’s trial counsel were a ware that [ Christy ] had a p rior stay at Pi n e Grove in Hattiesburg as a result o f a b r e a k up with a prior f iance b ef ore her m arriage to [ Thom a s]. Those records were provided in discovery and appear to concern the y ears 2 010 through 2012. Co p i e s o f t h ose records were provided by

[ Christy ] ’s counsel to t he Court and [ Thom as]’s current counsel at th e mo t i o n hearing. Those records are b eing f iled under seal in the court f ile. The records are not in evidence f rom trial. The use, non-use, or relevanc e o f s u ch inf orm a tion by [ Thom as] at trial is deem ed by the Court to involve trial s t rategy

. The i nf orm ation was apparently known to [ Thom as] and his counsel at trial. It was not introduced nor of f e red into evidence. Thus, there is n o n e w o r unknown e v idence intentionally withheld by

[ Christy ] that supports [ Thom as]’s m otion f o r a new trial on the grounds of

perjury or f

r aud upon the Court. ¶17. As noted, the chancellor f ound th a t t h e r e w a s “ n o n e w o r u n k n o w n evidence intentionally withheld by Christy that supports Thom as’s m otion f or a n e w t r i a l on the grounds of p erjury or f

r a u d u p o n t he Court.” If Thom as believed that Christy gave f alse testim o ny when h i s t r i a l c o unsel questioned h er about her m ental f itness to care f

or the parties’ m inor child, i t was incum bent upon him to conf

ront her with her m edical r ecords at

7that tim e if he thought they c ontradicted h e r testim ony . T h om as d oes not claim , and there

is no evidence, t hat he was som e how prohibited f rom bringing Christy ’s past m ental history to the court’s attention during the trial. ¶18. The standard f

or obtaining relief based upon an allegation of f raud u pon the court has been succinctly

addressed by

the Mississippi Suprem e Court: Relief based on f

raud upon the court i s reserved f or o nly the m ost e gregious mi s c onduct, and requires a showing of an unconscionable plan or schem e which is designed to im properly inf

luence the court in its decision. Mere nondisclosure of pertinent f acts to the court does not add u p to f raud upon the court f or purposes of vacating a judgm ent under Rule 60(b). F urtherm ore, the f raud m ust be proved by clear and convincing evidence.
Doe v. Smith , 200 So. 3d 1028, 1033 (¶15) (Miss

. 2 016) (internal citations and quotation

m arks om itted). ¶19. As noted, the chancellor f ound that “t h e r e [ was] n o new or unknown evidence intentionally withheld b y [ C hristy ] that support[ ed] [ Thom as’s] m otion f or a new trial on the grounds of perjury or f

raud upon the [ c]ourt

. ” We a gree. This issue is w ithout m erit, and we f ind no error in the April 26, 2016 order deny ing the relief requested by

Thom as. ¶20. AFFIRMED.
L E E , C . J . , G R I F F I S , P .J., BARNES, C A R L T O N , F A I R , W I L S O N , G R E E N L E E AND WESTBROOKS, CONCUR.

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