IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO. 2017-CA-00960-COA FARRA L. (CASSIDY) SHERIDAN APPELLANT

v. JAMES P. CASSIDY JR. APPELLEE DATE OF JUDGMENT: 06/01/2017 TRIAL JUDGE: HON. GLENN ALDERSON COURT FROM W HICH APPEALED: LAFAYETTE COUNTY CHANCERY COURT ATTORNEYS FOR APPELLANT: RICHARD SHANE MCLAUGHLIN NICOLE H. MCLAUGHLIN ATTORNEYS FOR APPELLEE: MARY MORGAN W HITFIELD CHARLES J. SW A YZE JR. NATURE OF THE CASE: CIVIL - DOMESTIC RELATIONS DISPOSITION: AFFIRMED - 12/11/2018 MOTION FOR REHEARING FILED: MANDATE ISSUED:
EN BANC. LEE, C.J., FOR THE COURT: ¶1. In this appeal, w e m ust determ ine whether the ch a n c e l l o r a b used h is d iscretion in

m odif y ing custody of

the parties’ m inor children. Finding no error, we af f irm

. PROCEDURAL HISTORY ¶2. On May 18, 2016, Jam es C assidy was granted a divorce f rom h is wif

e, Farra (Cassidy ) Sheridan on t h e g r ound o f Farra’s adultery

. Pursuant to a c hild custody , support, and property -settlem en t agreem ent (PSA), Farra took phy sical custody of the couple’s f our m inorchildren, 1 and Jam es agreed to pay rehabilitative alim ony and child support. ¶3. On Ju l y 1 9 , 2 0 1 6 , F a r r a p e t i t i o n e d the Laf ay ette County Chancery Court f or
perm ission to m ove the c hildren to Benton, Arkansas. Jam es c ountered, requesting that he be granted custody of the c hildren. Af t er a hearing, the chancellor g ranted Jam es’s m otion f or custody m odif

ication and ordered Farra to pay c hild s up p o r t

. F arra now appeals,

a s serting the f

ollowing i ssues: (1) there was no evidence of a m aterial c h a n g e i n circum stances resu l t i n g i n an adverse ef f ect on the children; (2) the chancellor m isapplied several of the Albright 2 f a ctors; ( 3) the chancellor erred b y not allowing their twelve-y ear-old

son t o state a pref

e rence; and (4) the chancellor e rred by r ef using to allow t wo of the children to testif y . FACTS ¶4. Af ter the parties’ d ivorce, Farra began a relationship with Eric Sheridan. At the tim e, Sheridan was m arried and living in Arkansas. Sheridan testif ied that his wif

e lef t him af ter seeing text m essages between him and Fa r r a . F a r r a and t he c hildren drove to Arkansas f requently to v isit h er f

am ily a nd Sheridan. B ecause she and the children visited Arkansas

on the weekends, the c hildren w ere som etim es checked out e arly f rom school on Friday s and

were som etim es late arriving to school on Monday s, resulting in unexcused absences. ¶5. Sheridan and h is w if e divorced on January 10, 2 017, and Farra and Sheridan m arried

1 A t th e tim e o f th e d iv o rce, th e c h ild ren w ere elev en y ears o ld (so n ), n in e y ears o ld (d au g h t er), an d eig h t y ears o l d (tw in so n s). B y th e t im e o f th e m o d if icatio n h earin g , all f

o u r ch ild ren w ere o n e y ear o ld er.

2 A lb rig h t v. A lb rig h t , 4 3 7 S o . 2 d 1 0 0 3 , 1 0 0 5 (M iss. 1 9 8 3 ). 2on February 3 , 2017. Farra adm itted that prior to her m arriage to Sheridan, she spent

m ultiple nights with Sheridan while the c hildren were present. A c l a u s e in the PSA prohibited either p arty f

rom e xposing the children to overnight visits f rom adult m em

bers of the opposite sex. Farra had been prescribed three m edications that she took regularly —two antidepressants and one m uscle relaxer. She testif

i ed that she w as also prescribed T razodone during the sum m er of 2016 to help her sleep. F arra f urther adm itted to drinking between two
to f our beers per day and conceded that she should n ot be drinking alcohol while taking these

m edications. ¶6. Natalie By a s, an em ploy ee at the l ocal country club, testif ied that she observed Farra

a n d t h e children’s behavior at t he club. By as stated that Farra drank excessivel y a n d appeared intoxicated at least six or seven tim es. By as f u rther s tated that the children were lef t unsupervised, w hich l ed to d estructive behavior. As a result, By a s w a s t a s k ed with

m onitoring the children’s b ehavior and cleaning up af ter them

. By as testif

ied that the club considered barring the children. ¶7. Jam es testif

ied that his relationship with the c h ildren had changed since the divorce.
Jam es said th e c h i l d r e n n o longer told him that they loved h im

. Jam es f u rther s tated that
Farra had interf

ered with his visitation and had ref used to d i scuss m atters involving the children, such as extracurricular activities, m edical appointm ents, and health insurance. ¶8. Additional f

a cts, as necessary , are related during our discussion of the issues.
STANDARD OF REVIEW ¶9. “The standard of r eview in child[ -]custody cases is lim ited. Reversal occurs only if

3a chancellor is m anif estly w rong or applied an erroneous legal standard. This C ourt will not

reverse a chancery court’s f actual f indings, where there is substantial evidence in the record supporting [ them ]

. . . .” F loyd v. Floyd , 9 49 S o. 2d 2 6 , 2 8 ( ¶ 5 ) (Miss. 2007) (citation

om itted).
DISCUSSION
I. Modification ¶10. “[ I]n m odif

ication cases, as in original awards of custody , we never depart f rom our polestar consideration: the best interest and w elf are of the child.” Johnson v. G r ay , 859 So. 2d 1006, 1013 ( ¶33) (Miss. 2003) (internal quotation m arks om itted). H o w e v e r , m o d i fi c a t ion issues are dif

f erent f r om original custody

determ inations. In order to succeed on a request f or m odif ication, “the non-cust o d i a l party m ust prove: (1) that a substantial c hange in circum stances has transpir e d since i ssuance of the custody decree; (2) that this change adversely af

f ects t he child’s welf

are; and (3) that the child’s best interests m andate a change of custody .” M

abus v
. Mabus , 847 So. 2d 815, 8 18 ( ¶8) (Miss. 2 003). In Riley v. Doerner , 677 So. 2d 740, 744 (Miss. 1996), the suprem e c o urt held: [ W ]here a c hild living in a custodial e n vironm e nt clearly adverse to t he c hild’s best i nterest, som ehow appears to rem ain unscarred by his or her surroundings, the chancellor is not precluded f rom rem oving the child f or placem ent i n a healthier environm ent.

. . . A child’s r esilien c e and ability to cope with dif f icult circum s tance s should not serve to shackle the c hild to an unhealthy hom e, especially

when a healthier one beckons. ¶11. The chancellor f

ound the f o llowing am ounted t o a m aterial change in c ircum stances: Farra’s involvem ent w ith a m arried m an; her num erous violations of the PSA, including allowing h er boy f

riend to spend the night while the children were p r e s e n t ; h er decision to

4abuse alcohol while taking prescription m e dications; her poor f inancial decisions; her ref

usal to co-parent with Jam es; her inciting the children to access private inf orm ation on Jam es’s electronic devices; the children’s school absences a nd tardies related to weekend trips to Arkansas; the children’s l iving situation while visiting A rkansas; and issues with one child’s f ailure to com

plete school a ssignm ents. The chancellor also h ad c o n cerns about Farra’s credibility

. ¶12. W e cannot f

i nd that the cha n c e l l o r ’ s f i n d i n g s r e g a r d i n g a m aterial change in circum stances were m anif estly wrong o r c l e a rly erroneous. W e now look to whether the chancellor properly applied the Albright f actors.
II . Albright

Analy s is ¶13. Farra argues that the chancellor erred in his Albright analy sis. “Upon a f inding of a

m aterial c hange in circum s tances, a court is to apply the Albright f actors to determ ine which parent should have prim ary c ustody .” Pearson v. Pearson , 11 S o. 3d 178, 183 (¶14) (Miss. Ct. App. 2009). ¶14. The f

actors u s e d t o d e t e r m i n e w h at is in the best interest o f a child with regard to custody are: (1) the age, health, and sex of the child; (2) a determ ination of the parent who has had the continuity of care prior to t he separation; ( 3) which parent has t he best parenting skills and which has the willingness and capacity to provide p rim ary childcare; (4) t h e

e mp l oy m e nt of the parents and responsibilities of that em ploy m ent; (5) the phy si c a l a n d

m ental health and age of the parents; (6) the em otional t ies of the p arent and child; (7) m oral f itness of the parents; (8) the h om e, school, and com m unity record of the child; (9) t h e

5pref

erence of the c hild at the age suf f i cient to express a pref

e r ence by l aw; (10) the stability of the hom e environm ent and em ploy m ent of each parent; and (11) o ther f actors relevant to the parent-child relationship. Albright v. Albright , 437 S o. 2d 1003, 1005 (Miss. 1983). “An Albright analy sis is not a m athem atical equation.” Hall v. Hall , 134 So. 3d 822, 827 (¶19) (Miss. Ct. App. 2014). “[ T]his Court cannot reweigh the evidence a n d mu s t def er to the chancellor’s f

indings of t he f

acts, so long as they are supported by substantial evidence.” Id. at 828 (¶21). ¶15. The c hancellor f

ound that t he f

irst, third, f

if th, s i xth, and eighth f

actors were neutral; the sec o n d f

a v o r e d Farra; and t he rem aining f actors f avored Jam es. In her a

ppeal, Farra questions the chancellor’s r uling on the f

ollowing f

a ctors: phy sical and m e ntal health; m oral f itness; and pref

erence of the child.
A. Phy sical and Mental Health ¶16. Farra argues that the p roper use of prescription m edications should not count against her. This is generally true. See Kimbrough v
. Kimbrough , 76 So. 3d 715, 7 24-25 (¶52) (Miss. Ct. App. 2011) ( There was no evidence that m other was using poor judgm ent in her

use of m edi c a t i ons and no evidence that the u se i m paired her ability to c are f or the m inor child.). But, Farra was a dm ittedly not properly using her prescription m edications. She was drinking alcohol while on these m edications. And we h ave u pheld the chancellor’s f

indings in a sim ilar situation. See W oodham v. W

oodham , 17 So. 3d 153, 158 (¶19) (Miss. Ct. App. 2009). There, t he chancellor f ound this f

actor f avored the f

a ther because t h e m other’s decision to com

b ine alcohol with antidepressants ref lected poor judgm e nt. Id. W e cannot

6f

ind the chancellor abused his discretion in this instance.

B. Moral Fitness ¶17. Farra also contends that the ch a n c e l l o r p l a ced too m uch weight on her a dultery in weighing this f

actor, including her pre-divorce behavior. The chancellor f ound this f

actor f avored J am es b e cause he f ound that Farra h ad “com m itted a d ultery w hile [ she was]

m arried.” The chancellor f urther e xplained, “Af

ter y ou got y our divorce, y ou started having intercourse with y o u r boy f r iend while he was m arried. A nd y ou let t he children reside in the

sam e house and locale.” ¶18. Af ter a thorough r eview of the record, we cannot f ind that the c hancellor placed too

m uch em phasis on Farra’s decision to begin a r elationship with a m arried m an or o n her predivorce behavior. R ather, the chancellor’s chief concern was Farra’s d ecision to disregard the PSA and allow her boy f r i e n d t o spend the night while the children were present. W e
cannot f ind the chancellor abused his discretion in f inding that t his f

actor weighed in Jam es’s f avor. C. Preference of the Child ¶19. Farra claim s the chancellor erred in f ailing to allow their twelve-y ear-old son to state with w hich parent he pref erred to live. W e will discuss this issue in m ore detail below, but we do not f

i nd any error in this instance. ¶20. Af t e r r e v iewing t he record, we cannot f ind the c hancellor abused his d iscretion in

m odif y ing custody

. This issue is without m erit.
III. Preference of Tw elve-Year-Old Son

7¶21. Farra argues that the chancellor com m itted reversible e r ror by ref using to allow her twelve-y ear-old son to state a p r e f erence. Mississippi Code Annotated section 93-11- 65(1)(a) ( Rev. 2013) provides that a child’s pref er e n c e m a

y be taken into account in determ ining child custody : [ I]f the court shall f

ind that both parties are f it and p r o p er persons to have custody o f the children, and that either party is able to a d equately provide f or the care and m aintenance of the chil d r e n , the chancellor may consider the pref erence of a child of twelve (12) y ears of age or older as to the p arent with whom the child would pref er to live in determ ining what would be in the best interest and welf

a re of the child. The chancellor shall place o n the record the reason o r r e a s o n s f

or which the award of c u stody was m ade and explain in detail why

the wishes of

any child were or were not honored. (Em phasis added). “[ T]he chancellor is not bound b y the election of a m inor child.” Floyd , 949 So. 2d at 30 (¶12). But, if a chancellor declines to f ollow a child’s pref

e rence, he m

ust place the reasons in the record. Id. ¶ 22. During t h e h e a r i n g , F a r r a a s ked that t he twelve y ear old be allowed to state his pref erence. The c hancellor declined this request, stating that based upon prior t estim ony , he b e l ieved the child h a d been coached by Farra. The chancellor allowed Farra to m ake a prof f er regarding the twelve y ear old’s testim ony . The prof f e r was as f

ollows: The twelve y ear o ld l oves his f ather, l ove s h i s mother, would l ove to spend tim e with his f

ather. W ould pref

er to be in Arkansas where he has f riends , where he has extended f

am ily , where h e likes to do things in A rkansas in the proxim ity to other places that they can go in Arkansas, outside of Benton, Little R o c k , e t c . A nd all of the things that are available there that are not in Oxf ord.

. . . He s eem s to think that there is a lot of stuf f to do around Arkansas that is not available here. ¶23. In his Albright analy sis, t he chancellor stated t hat he d id not allow the c hild to testif y because h e had c oncerns that Farra had coached the child on what to say . The chancellor

8f

urther stated that although this child wanted t o live with Farra (based upon the prof f er), “the pref erence of the child in this situation [ did] not have m uch bearing on t he Court with all of

t h e f a c t o rs that I have gone o ver thus f ar.” Considering that the m ajority of the Alb r i g h t f actors f avored Jam es, we f

ind no abuse of discretion in this i nstance. This issue is without

m erit.
IV. Refusal to Allow Children to Testify ¶24. Farra also c ontends that the chancellor e rred in sum m a rily excluding testim ony f rom the twelve-y ear-old son a nd the ten-y ear-old d aughter. Farra argues that the chancellor was required to conduct a hearing pursuant to Jethrow v. J ethrow , 5 71 So. 2 d 2 70 (Miss. 1990).
In Jethrow , the suprem e court stated that “there can be n o per se prohibition against a child

w i tness testif

y ing in a divorce c ase between his parents.” Id. at 273. There, t h e mo t h e r wanted t o call the partie s’ eight-y ear-old c hild “as a w itness to t estif y to acts of violence against her b y [ the f

ather],” but the chancellor ref used. Id. a t 2 71. The suprem e court reversed, concluding that certain procedures should be f ollowed in deci d i n g whether to exclude “ t he testim ony of a child witness of tender y ears in a d i v o r c e p r oceeding.” Id. at 273. First, determ ine if the child is com petent to testif

y and second, determ ine whether it is in the child’s best interests to testif y . Id. at 273-74. ¶25. Here, t he chancellor d i d not conduct a Jethrow hearing, and neither party requested

one. The chancellor did state that it was not i n the children’s best i nterest to testif y because he thought pitting the children against the p arents would be detrim ental to the children. He stated, “That is n o t f

air. T his is n ot their f

i ght, they d idn’t start it. They didn’t cause the

9divorce, they a r e t he victim s of it.” The c hancellor f urther expressed his opinion that the children had been coached, so any testim ony would be unhelpf ul. I n this instance, we f

ind no abuse of

discretion by

the chancellor. ¶26. AFFIRMED. IRVING, P.J., BARNES, WILSON, GREENL E E A N D WESTBROOKS, JJ., CONCUR. T INDELL, J. , CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION. CARLTON , J ., DISSENTS WITH SEPARATE WRITTEN OPINION, JOINED BY GRIF FIS, P.J., AND F AIR, J .; TINDELL, J ., JOINS IN PART. CARLTON, J., DISSENTING: ¶27. I respectf

ully dissent. The cha n c e l l o r a b u s ed his discretion in f a iling to allow the twelve-y ear-old son to testif y regarding h is p ref

erence as to custody

. A nderson v. Anderson , 961 So. 2 d 55, 59-60 ( ¶¶7-12) (Miss. Ct. App. 2007). In A nderson , this Court f ound that the chancery court abused i ts discretion in a child custody m odif i cation hearing w hen the chancellor f

ailed to allow the children to testif y as to t heir custodial pref e r ence, ef f ectively preventing the m other f

rom presenting her case-in-chief prior to the court entertaining the f ather’s m otion f

or an involuntary d ism issal un der Mississippi Rule of Civil Procedure 41(b). Id. ¶28. Sim ilarly , t he chancellor’s f ailure to hear the testim ony o f the twelve-y ear-old child in this case not only prevented him f rom e xpressing his custodial pref e rence, but a l so denied
Farra the right to present her child as a witness r egarding a m aterial change in circum stances.
I recognize that the version of s ection 93-11-65 in ef f ect a t the tim e A nderson was decided

1 0has since been r e vised to s lightly weaken t he child’s right to c hoose his custodial parent. 3

Relevant here, however, is that under either version of the statute, and under the a pplicable

case law, a parent is entitled to present a child’s testim ony regarding parental pref erence f or custody in order to d em onstrate a m a terial c hange in circum s tances. Anderson , 9 61 So. 2d

at 5 9-60 (¶¶7-12); see also Boyd v. Boy d , 8 3 S o . 3d 4 09, 418 ( ¶29) (Miss. Ct. App. 2011) (m other allowed to present daughter’s pref erence testim ony ). ¶29. In short, although under section 93-11-65 the chancellor does not have to honor the twelve-y ear-old child’s pref erence, see, e.g. , Floyd , 949 So. 2d at 30 (¶12), the m other has

a r ight to present the evidence at the custody hearing. T he chancellor abused his discretion in this case by declining Farra’s r equest to present her t w e l v e - y e a r - old son’s testim ony on this issue. I m aintain that this case m ust reversed and rem anded due t o the chancellor’s abuse of discretion in ref

using t o a llow the twelve-y ear-old son to state his pref erence on the record. GRIFFIS, P . J . , A ND FAIR, J., JOIN THIS OPINION. TINDELL, J., JOINS THIS OPINION IN PART.

3 In A n d e rso n , sectio n 9 3 -1 1 -6 5 (R ev . 2 0 0 4 ) p ro v id ed th at “ a n y . . . ch ild w h o sh all h av e reach ed h is tw elf

t h b irth d ay sh a ll h av e t h e p riv ileg e o f ch o o sin g th e p a r en t w ith w h o m h e s h all liv e.” (E m

p h asis ad d ed ). T h e cu rren t statu te , also in ef f ect at th e 2 0 1 6 ch ild cu sto d y m o d if

icatio n h earin g in th is case, p ro v id es th at if th e ch an cello r f in d s th e tw o p arties f i t an d p ro p er, th e n “th e ch an cello r m a y co n s id er th e p ref

eren ce o f a ch ild o f tw elv e . . . y ears o f ag e o r o l d er as to th e p aren t w ith w h o m th e ch ild w o u ld p r e f er to liv e in d eterm in in g w h a t w o u ld b e in th e b est in terest an d w elf are o f th e ch ild .” M i ss. C o d e A n n . § 9 3 -1 1 -6 5 (R ev . 2 0 1 3 ) (em p h asis ad d ed ). The statute f urther provi d e s t

hat “[ t]he chancellor shall place on t he record t he reason or reasons f or which the award of custody was m ade and explain in detail why

the wishes of

any child were or were not honored.” I d. 1 1