IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO. 2014-CA-00173-COA DEBRA THAMES APPELLANT

v. CHRISTOPHER THAMES, SR. APPELLEE

DATE OF JUDGMENT: 01/10/2014 TRIAL JUDGE: HON. DAN H. FAIRLY COURT FROM W HICH APPEALED: RANKIN COUNTY CHANCERY COURT ATTORNEY FOR APPELLANT: TAMEKIA ROCHELLE GOLIDAY ATTORNEY FOR APPELLEE: TRACY STIDHAM STEEN NATURE OF THE CASE: CIVIL - DOMESTIC RELATIONS TRIAL COURT DISPOSITION: GRANTED AN IRRECONCILABLEDIFFERENCES DIVORCE AND AW ARDED JOINT PHYSICAL AND LEGAL CUSTODY OF THE PARTIES’ MINOR CHILD DISPOSITION: REVERSED AND REMANDED: 07/28/2015 MOTION FOR REHEARING FILED: MANDATE ISSUED: EN BANC. LEE, C.J., FOR THE COURT: ¶1. This appea l a r i s e s f r o m a n i n i t i a l c u s tody determ ination. Finding the custody
arrangem e nt to be im

practical, we reverse the judg me n t of the Rankin County C hancery Court and rem and the case f o r f urther proceedings as discussed below. FACTS AND PROCEDURAL HISTORY ¶2. Debra T h am es a nd Christopher Tham es Sr. w e r e ma r r i e d on May 10, 2008. On January 24, 2012, their daughter, Sof ia Ocie T ham e s , w as born. The Tham eses lived together as a f

a m i ly in Brandon, Mississippi, u ntil January 30, 2013, when Debra m oved toSan Antonio, Texas, taking their daughter with her.

¶3. On February 15, 2013, Christopher f iled f or divorce alleging two f

ault-based grounds

or otherwise asking t he Rankin County Chancery Court to grant an irreconcilable-dif f er e n c es divorce. On May 2, 2013, a tem porary hearing was held. A t e m p o r ary order resulting theref rom was e ntered nunc pro tunc on Decem ber 12, 2013. The tem

porary order awarded Debra phy sical and legal custody o f Sof ia and awarded Christopher alternating m onthly visitation. ¶4. On Septem

ber 16, 2013, the day of the f inal hearing, the parties f

iled a joint m otion and consent to t rial and divorce on the ground o f irreconcilable dif f erence s , and agreed to subm it to the chancellor t he issues of phy sical and legal custody o f S of ia, visitation rights of the non-custodial parent, and c hild support. This joint m otion w as granted the sam e day

. At the f i nal hearing, the chancellor conducted an A lbright 1 analy s is, f inding the f

actors weighed equally f or bo t h p a r e n t s . A f

inal judgm ent was entered on January 10, 2014, granting the parties j oint legal and phy sical custody , with phy sical custody t o a l ternate back a n d f orth between the parents on a m onthly basis until Sof

ia starts f ive-y ear-old kindergarten. ¶5. D e b r a n o w a p p eals, asserting that ( 1) the chancellor erred in f ailing to adm inis t e r

c o mplete relief as to every portion of the controversy , and (2) t he c u stody arrangem ent i s im p ractical. S TANDARD OF REVIEW ¶6. In d om estic-relations cas e s , w e “ w i ll not disturb t he f indings of a c hancellor when

1 Albright v. Albright , 437 So. 2d 1003 (Miss. 1983). 2s u

p p o rted by substantial evidence unless the chancellor abused his discretion, was m anif estly
wrong [ or] clearly erroneous[ ,] or [ applied] an erroneous legal standard[ .]” In re Dissolution of Marriage of W

ood , 35 So. 3d 507, 512 (¶8) (Miss. 2010). W e review q uestions of law de

novo. I d

. DISCUSSION
I. ADMINISTRATION OF COMPLETE RELIEF ¶7. Debra argues that the chancellor e r r e d i n f ailing to adm inister com

plete relief as to
every portion of t he controversy , violating the m axim t hat “equity de l i g h t s to do justice

com pletely and not b y h alves[ .]” Humble Oil & Refining Co. v. R ankin , 207 Miss. 402, 412, 42 So. 2d 414, 417 (1949). She argues that the c h a n c e llor e r red when he f

a iled to decide who would have sole custody o f Sof i a w h en she started f

i ve-y ear-old kindergarten. This issue was addressed in a jurisdictional context in C rider v. Crider , 905 So. 2d 706, 707-08 (¶¶3-5) ( Miss. Ct. App. 2004), which was reversed on o ther grounds. This Court stated that “to evaluate the issues presented on appeal, the case m u st be properly in our j urisdiction. Only a f inal order in which no issues rem ain to be resolved m ay be appealed.” Id

. a t 7 07 (¶3). ¶8. In C

rider , “ the c hancellor awarded joint legal and p hy sical custody of t he child until
J u n e 2 0 0 5 , w h ich was the start o f the sum m er bef o re the [ child] would enter s chool. The chancellor directed t hat the m atter be set f or review in June 2005 t o reevaluate custody .” Id

. at ( ¶2). Af

ter noting that “[ d]om estic judgm en t s are f requently the subject of additional proceedings” and that “[ m ]odif ica t i o ns are constantly s ought,” this C ourt held that f orm al

3recognition of the need to revisit custody at a specif ic t im e in the f

uture did not prevent the 2003 judgm ent f

rom being f

inal. Id. at 707-08 ( ¶ ¶ 4

- 5 ) ( c itation a nd quotations om itted). This Court stated that “[ w]hether stated explicitly as h ere or lef t unstated, c ustody orders m ay be m odif ied.” Id. at 708 (¶5). ¶9. In this case, t he chancellor laid out a detailed visitation s c h e d u l e , w h i c h began October 5 , 2013 and ends February 4, 2017. S ave f or D ecem ber a n d J a n u a ry , where one parent has phy sical custody o f Sof ia f or two m o nths depending on the y ear, phy sical custody alternates back and f

orth between the parents on a m onthly basis until Sof ia starts f ive-y earold kindergarten. The order states: The parties w ill a lternate t his visitati o n schedule until f urther O rder of the Court. This schedule will rem ain in ef f ect until such tim e as either the State of Mississippi or the State of Texas, whichever is earlier, requires m andatory a t t e n d ance i n f

i ve (5) y ear old kindergarten when the child t urns f ive (5 ) bef ore the m onth of

Septem ber. During the f

inal hearing, the chancellor gave the parties the option of agreeing to a review hearing in January 2017 or m aking the judgm ent f inal and appealable according to Rule 54(b) of t he Mississippi Rules of Civil Procedure. The judgm ent was not certif i ed as a Rule 54(b) f inal judgm ent and any agreem ent to s et a hearing to review custody in J a nuary 2017 was not included in the record. ¶10. W h ile Debra does not argue that the jud g me n t w a s n o t f i n a l and appealable, the underly ing i ssue is the sam e, and that is whether any issues rem ain to be resolved. F ollowing the reasoning in Crider , we f i nd that the judgm ent was f inal, a nd it d i s p o s e d o f all of the issues until Sof

ia s tarts f ive-y e ar-old kindergarten. W h ile the c hancellor in this case did not

4specif

y t he exact m onth and y e a r in the f inal j udgm ent as did the chancellor in Crider , the visitation schedule ends in F e b ruary 2017 2 , and the chancellor stated that the order is to

r e ma in in ef

f ect until f

urther order of the court a n d only until Sof ia s tarts f ive-y ea r - o l d kindergarten. F urtherm ore, the chancellor gave the p arties the option of agreeing to a f uture heari n g t o r e v i e w c ustody or m aking the judgm ent a Rule 54(b) judgm ent. Either way , a f uture h e a r i n g w a s t o be held to revisit custody

. Form al recognition of the need to revisit custody b ef

ore S of ia st a rts f ive-y ear-old kindergarten did not prevent the judgm ent f rom being f i nal.
II. IMPRACTICALITY ¶11. “ [ T]he polestar consideration in child[ -]custody cases is the best interest and welf are of the child.” Albright v. Albrigh t , 4 3 7 S o . 2 d 1003, 1005 ( Miss. 1983). To that end, chancellors m

ust conduct an Albright analy sis, weighing each of the applicable f actors. Id

. W h ere both parties consent i n writing to subm it t he issue of custody to t he c h ancellor f or his determ ination, and t h e chancellor f inds both parents f

i t, joint custody m ay be awarded. Crider v. Crider , 904 So. 2d 142, 143-49 (¶¶3-17) (Miss. 2 005). “[ J]oint custody should not be awarded[ , however,] where it is im practical or burdensom e t o the children.” Jackson v. Jackson , 82 So. 3d 644, 646 (¶9) (Miss. Ct. App. 2011). The parents m ust also be capable of cooperating if

joint custody

is to be awarded. Crider , 904 So. 2d at 148 (¶16). ¶12. Debra does not attack the soundness of the chancellor’s Albright analy sis, but argues that the c hancellor f

ailed to consider whether the joint- c u s t o d y a r r a n g e m ent was practical due

2 Sof ia turns f i ve in January

2017. 5to the distance Sof ia had to travel every m onth. Debra a lso claim s t he c hancellor f ailed to consider w hether the parties w e re capable of cooperating. B ecause w e f ind that the jointcustody arrangem ent is im practical, we decline to a d dress whether the parties a r e capable of cooperating. ¶13. “There have been p rior decision s r e g a r d i n g initial joint-custody arrangem ents that becam e im

practical af

ter o ne o r both parents m oved.” Massey v. Huggins , 799 So. 2d 902, 906 (¶11) (Miss. C t. App. 2001) (citations om itted). I n McRee v. McRee , 723 So. 2d 1217, 1218-19 (¶4) ( Miss. Ct. App. 1 998), this Court af f irm ed the chancellor’s decision to m odif y custody based on the f

ather’s relocation to Houston, Texas. T he chancellor f o und t hat “[ t]he joint-custody agreem e nt, which provided f o r the child to stay with e ach parent on a lternating

m onths, w as im

p ractical once [ the f

ather] m o ved to Texas.” Id

. at 1219 (¶6). He f ound that

a m odif i cation w as inevitable and that the question t o be answered was w ho wa s t o have prim ary c u stody

. Id

. The parties to that suit agreed. Id

. In Massey , 799 So. 2d at 905-06 (¶¶6-13), this Court agreed with the chancellor t hat joint phy s ical c ustody w as i mpractical where one party m oved to L ong Beach, Mississippi, a nd t he other to Petal, Mississippi. The chancellor was quoted a s say ing, “as I view the situation, the bigges t c h a nge that has occurred, as f

ar as these parties are concerned, is that th e i r joint[

- ]phy sical[ -]custody
arrangem e nts are not possible now because they live in dif f erent areas of t h e state.” Id. at 906 ( ¶13). H e stated that t here would “have to be a change of [ p hy s i cal] custody ” and that the issue was “whether it’s going to be with the m other o r f ather.” Id

. T he initial custody
arrangem e nt in Massey had f our exchanges between the p arents each week, and both parents

6sought sole custody upon m odif

ication. Id . at 905-06 (¶¶5-13). ¶14. There are also p rio r d e c i s i o n s t h a t d i s c o u r a g e t h e use of alternating custody
arrangem e nts. Case v
. Stolpe , 300 So. 2d 802, 8 04 (Miss. 1974); Brocato v. W alker , 220 So. 2d 340, 343 (Miss. 1969); Daniel v. Daniel , 770 So. 2d 562, 567 ( ¶15) (Miss. Ct. App. 2000). See also Lackey v. Fuller , 755 So. 2d 1083, 1088-89 (¶¶27-29) ( Miss. 2000). In Daniel , the child was alternating custody back and f orth between Arkansa s a n d Mississippi every two weeks. Daniel , 770 So. 2d at 563-66 (¶¶2-14). This Court, noting t h a t t his ty pe of
arrangem e nt w as to be discouraged, declined to m ake any c hanges because the child was nearing the age of f

ive-y ear-old kindergarten , a t w h i c h tim e the f a ther was to exercise prim ary phy sical custody

. Id. at 563-67 (¶¶2-15). W e declined to interrupt what had becom e the child’s regular routine. Id. at 567 (¶15). ¶15. Af ter c onducting an Albright analy sis, the c hancello r i n t h i s c a se f ound that joint custody was in Sof

ia’s best interest, irrespective of the d istance s he would have to travel to spend tim e with each p a r e n t

. We do not agree. Given the distance b etween S an Antonio, Texas, and Brandon, Mississippi, a m onthly a lternating custody a rrangem ent is not in Sof ia’s best interest. The d i stance between San Antonio and Brandon renders this custody
arrangem e nt im

practical. In McRee , we agree d with the chancellor that an a lternating

m onthly custody arrangem ent that shif ted the child between Houston, Texas, and Jackson, Mississippi was i m

practical. See Massey , 799 S o. 2d at 906 (¶13). The distance between San Antonio and Brandon is even greater. W e, theref ore, reverse the chancellor’s j udgm ent and rem and this case f

or a reconsideration of the Albright f a ctors and a determ ination of who

7is to have prim ary custody of Sof ia. ¶16. THE JUDGMENT OF T HE RANKIN COUN T Y C H A N C E R Y C O U R T IS REVERSED, AND THIS C ASE IS REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS O PINION. ALL COSTS OF T HIS A P P EAL ARE ASSESSED TO THE APPELLEE. IRVING AND GRIFFIS, P.JJ., B ARNES, ISHEE, CARLTON, M AX WELL, FAIR AND JAMES, JJ., CONCUR. WILSON, J., NOT PARTICIPATING.

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