IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO. 2015-CA-01580-COA KELLY R. BURGE APPELLANT

v. CRAIG A. BURGE AND CHADWICK A. SHARFF APPELLEES

DATE OF JUDGMENT: 09/16/2015 TRIAL JUDGE: HON. M. RONALD DOLEAC COURT FROM W HICH APPEALED: LAMAR COUNTY CHANCERY COURT ATTORNEY FOR APPELLANT: PHILLIP LLOYD LONDEREE ATTORNEYS FOR APPELLEES: ALLEN FLOW ERS EARL LINDSAY CARTER JR. NATURE OF THE CASE: CIVIL - DOMESTIC RELATIONS TRIAL COURT DISPOSITION: FOUND KELLY BURGE’S NATURALPARENT PRESUMPTION REBUTTED; FOUND CHADW ICK SHARFF’S NATURAL-PARENT PRESUMPTION REBUTTED; AND AW ARDED CHILD CUSTODY TO CRAIG BURGE DISPOSITION: AFFIRMED - 08/01/2017 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE LEE, C.J., BARNES AND WESTBROOKS, JJ. BARNES, J., FOR THE COURT: ¶1. This case stem s f

rom a divorce action f

iled by Craig Burge against Kelly B u rge in the
Lam ar County Chancery Court. Craig and Kelly had t wo c hildren together, and Kelly also had phy sical custody of her two children born of a prior m arriage to C hadwick Sharf f (Chad).
In Craig’s com

plaint f or divorce, a m ong other m atters, he sought p hy sical and legal custody of all f our children, c laim i ng he acts in loco p a r e n t i s a s to the two Sharf f children.Subsequently , Chad f iled a p etition to join Craig’s request f or c u stody of all f

o ur children so as not to separate the children or, in the alternative, grant Chad c u stody o f his children. In the Sharf f divorce case, assigned to a d if f erent chancellor, Chad m oved to t r a n sf er and consolidate his case with the Burges’ case. Cr a i g a l s o s o u g ht to consolidate t he cases. In turn, Kelly f

i l e d a m otion f

o r sum m ary judgm ent, alleging that t he chancery court did not have jurisdiction o ver the Sharf f children. Craig’s and Chad’s m otions to consolidate were granted, and Kelly ’s m otion f or sum m ary

judgm e nt was denied. ¶2. The s even-day trial spanned over six m o nths. At the conclusion o f Craig’s and Chad’s case-in-chief

, K elly m a de a n ore tenus m otion f or a n involuntary dism i ssal of Chad’s petition
f or m odif ication of c hild custody and support, which was granted. In a ninety -page opinion, the c hancellor granted Craig a divorce on the grounds of uncondoned adultery , and awarded
h i m legal and phy sical custody of his two m inor c hildren, as w ell a s of the t w o S h a r f f children. The chancellor f o u nd Kelly ’s natural-parent p resum ption had been r ebutted with regard to the Sharf

f c hildren because o f her im m oral conduct a nd m ental unf itness. Additionally , the c hancellor f ound Chad’s natural-parent presum ption rebutted because he had abandoned his children, and was also unf it f or custody

. ¶3. Kell y a p p eals the judgm ent of the chancery court, raising two issues related to the Sharf f c hild-custody ruling: (1) whether her natural-parent presum ption was overcom e, and ( 2 ) whether m odif

i cation of the Sharf

f action was proper when the claim h a d b e e n involuntarily

dism issed. Finding no error, we af f irm

.

2PROCEDURAL HISTORY

¶4. Craig and Kelly were m arried on June 2, 2004, af ter a three-week courtship. She had been divorced f

rom C had f

or a pproxim ately f

our m on t h s. C raig and Kelly separated in February 2013 in Purvis, Mississippi. Two children w ere born of the m arriage: Paula, a f em ale child born in 2 005, and P eter, a m ale child b orn in 2008. 1 P rior to her m arriage to Craig, K elly was m a rried to Chad f rom 1998 u ntil February 2004. Two children were born of their m arriage: Phillip, a m ale child born in 1998, and Perry , a m ale child born in 2001.
In the Sharf

f divorce judgm ent, Kelly w as a warded p h y s ical custody of Phillip and Perry Sharf f , with Chad to pay

child support. ¶5. I n M a r ch 2 013, Craig f iled f or divorce and requested c ustody of all f our childre n , claim ing to act in loco parentis f o r the Sharf

f children. Craig nam ed Chad as a nom inal party related to custody of th e S h arf f c hildren. Craig alleged t hat Chad w as not active in his children’s lives, and Chad’s whereabouts were unknown. All of t h e c h i ldren lived in the Burge m arital h o m e. In April 2013, the chancellor entered a tem p orary order w hereby both parties agreed to share joint legal custody , but Craig would have t em porary phy sical custody of all f our c hildren. K elly would have v i s itation every other weekend, and Craig had

tem porary use a nd possession o f the m arital hom e. Both parties were e njoined f rom exposing the children to rom antic interests. ¶6. In August 2013, Chad answered the Burge divorce petition, even though h e had not

1 P seu d o n y

m s h av e b een u sed to p ro tect th e id e n t ity o f th e m in o r ch ild r en . 3been served with p rocess in the m atter and f iled a petition to join t he Burge case. He denied that Craig stood in loco p arentis t o his children. However, Chad joined Craig’s request to award custody of all f

our children to Craig so as not t o separate the children. In the alternative, he requested m odif i cation of child custody to him

. Also in August 2013, Craig
f iled a petition f

or contem

pt, c l aim ing, am ong other m a tters, that Kelly violated the

tem porary order by exposing the children t o h e r param our, Burke W illiam son, during visitation. A guardian ad litem (GAL) was appointed f or all f our children. In S e p t e m

ber 2013, the chancery court issued a second tem porary o r d e r , d i r ecting t he children not be

e x p o s e d to Burke, and C had’s child-support pay m ents be paid t o Craig through the tr u s t
account of Kelly ’s attorney

. In Decem ber 2013, Craig f

iled a n em ergency petition claim ing Kelly had ignored these directives. ¶7. In June 2014 in the Sharf f case, Chad f

iled a petition f

or m odif ication of child custody

to him , c iting Kelly ’ s divorce p roceedings w ith Craig as a m aterial change in circum stance. Chad also clai me d t h a t h e continued to p ay child support f or his two children, in contradiction t o K e l l y ’ s a s sertions to Craig. Chad also f iled a m otion t o transf

er and consolidate his case with the Burge case. L ikewise, Craig requested consolidation o f his and Chad’s c ase. Kelly

also f iled a m otion f

or sum m ary judgm ent claim ing the chancery court lacked jurisdiction over the Sharf f children. ¶8. In O cto b e r 2 0 1 4 , a n o rder consolidating b oth cases was entered, and trial began in
D e c em ber 2014, and continued f o r several dates until J u ly 2015. In Septem ber 2 0 1 5 , t h e

4chancery cour t entered its opinion and f inal judgm ent. The chancellor granted Craig a divorce f rom Kelly o n t h e grounds of uncondoned adultery

. Kelly ’s natural-parent
presum ption as to the two S harf f children was rebutted, as the chancery cou r t f o und her conduct “so im m oral as t o be d etrim ental to the children,” and that she w as “unf it, m entally

or otherwise, to have custody .” Chad’s natural-parent presum ption was also r ebutted, with the court f

inding he abandoned and deserted his two (Sharf f ) children, and that he too was

m entally unf

it to have custody

. Under an Albright 2 analy sis, Craig was granted l e g al and phy sical custody of all f

our children. Kelly w as ordered t o pay Craig child support, and Chad

was ordered to pay $ 300 per m onth f or his two c hildren. Kelly was a lso f ound in contem

pt of c ourt f or her repeated f

ailure to prevent the children’s exposure to Burke, as ordered, and
f ailure to rem it to Craig child support a n d h e r s hare of m edical e x penses f or the children, which am ounted to $4,558.11. The chancellor stated the Sharf f case w as “hereby m odif ied

as to Chad and Kelly ’s custody , visitation, a nd child s upport

. . . and a ll provisions not

m odif ied rem a in in f

orce and in ef

f ect.” Kelly

tim ely appealed.
STATEMENT OF FACTS / TRIAL TESTIMONY ¶9. O v e r t he course of the seven-day trial, seven volum es of t rial testim ony were taken
f rom num erous witnesses, and sixty -three e x hibits were entered into evidence. 3 Since this case is prim arily

driven by

the f acts, we f ind it necessary

to relate them

in som e detail.

2 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 )

. 3 C h ad d id n o t ap p ear at trial b u t w as rep resen ted b y co u n sel. 5¶10. At the t i m e of Craig and K elly ’s m arriage, Phillip S harf f was f i ve y ears old, and Perry Sharf f w as t wo y ears old. Craig p ut the two boy s on h is m edical insurance, and “took over

as their dad” since Chad was mo s t l y a b s e nt. The Sharf f children knew Craig as “Dad,” although they d id enjoy seeing Chad. B oth boy s wanted C raig’s last nam e of “Burge” on the back of their baseball jersey s. Craig testif ied he w a s t h e r e f

or all f our children and his parenting skills are “ of

f the chart.” He m aintained that he w a n t e d custody of all f our children. 4 ¶11. Craig w orks f

or his f am ily as a log l oader. T he m arital hom e was a house b uilt bef ore the m arriage b y Craig on his f am ily ’s property in rural Lam ar County

. During the m arriage, Kelly stay ed at hom e, keeping the house and caring f or the children. S he hom eschooled t hem and, according to Craig, initially d id a good job. Kelly f elt it w as best because the children allegedly suf f ered f r om dy slexia a nd had attention-def icit issues. However, Craig was not
in f a vor of hom eschooling. In late 2012, Kelly decided to sell V isalus diet shakes part-tim e. Craig would keep the children while Kelly attended the sales m eetings. Toward the end of the m arriage, Craig testif ied that t he chi l d r e n w e r e of ten lef t with the oldest child, Phillip,

or C raig’s f

am ily m em

bers w hen Kelly lef

t the house, which becam e m ore f requent. W hen the couple received a $25,000 Christm as gif t, Kelly decided t o spen d $ 8 , 5 0 0 o n breastaugm entation surgery less than a y ear b ef o re the y s e p a rated, claim ing a m o del-like f igure

4 A t o n e p o in t, C raig co n sid ered ad o p tin g th e S h arf f ch ild ren b u t ch an g ed h is m i n d

. K e lly su p p o rted th e ad o p tio n . 6would help her Visalus sales.

¶12. Craig a nd K elly s e parated in February 2013, when Craig cam e hom e f r om church and Kelly s aid she w as sorry he was “ still t ry ing” with regard to their m arriage. S ince Septem ber 2012, Kelly had been com m unicating with her s oo n - t o -be param our B u rke in Jackson. Burke

was a n old classm ate of Kelly whom she had contacted when she was selling V isalus shakes.
He w as a f

orm e r soldier with post-traum atic stress d isorder (PTSD) and a drinking problem , and Kelly said she was try ing to help him “f ind the Lord.” In Decem ber 2012, an incident occurred where K elly f

rantically insisted Craig drive her to Jackson in the m iddle of the night

to c hec k o n Burke because he was allegedly suicidal. Upon arrival at Burke’s a partm ent, they f ound him p assed out f

r om alcohol consum

ption but unharm e d

. Craig instructed Kelly

to h ave no m ore com m

unication with B u r k e , as i t was not good f or their m arriage. Kelly agreed. Burke later texted Craig that he had “no designs on [ his] wi f e . I d on’t know why she is so taken with m e” a nd f urther, that he was “not sleeping with [ Kelly ] and wouldn’t if [ he] could” because he is a “good soldier.” ¶13. In January 2 013, another incident o ccurred. Kelly t o l d C r a i g s h e w a s g o i n g t o Grenada to see her aunt. Upon Kelly ’s return, Craig saw a photograph posted on F acebook where Kelly was sitting on a bed t opless with her back to the cam e ra and a n Am erican f lag draped around her hips. Kelly denied t he photograph was inappropriate, e xplaining that the photograph was f

o r a wounded-warrior organization t hat helped s o l d i e r s with P TSD. She def ended it as “Christian.”

7¶14. In March 2 013, af ter the couple’s separation, Kelly checked herself i n to Pine Grove,

a behavior health and addiction treatm ent center in Hattiesburg, where her m other worked

as a nurse. Kelly t old Pine Grove that she w as “to r n b e t w e e n t wo m en,” and had been depressed and suicidal f

or f ourteen y ears. She was diagnosed with a broad range of m aladies including depression, anxiety , insom nia, and “m agical thinking.” Craig s tated that bef ore her adm ission, Kelly was having “ intrusive thoughts” and was suicid a l ; Kelly denied this accusation. During her f

i ve-day stay , Burke sent C raig a text m e ssage letting h im know that Kelly wanted Burke to call her at Pine Grove, but stated: “ You don’t have to w o rry about

m e any m ore . . . but the next g uy she f inds won’t be as m oral as I am .” Burke t hen told Craig that the weekend Kelly said she went t o her aunt’s house in Grenada, she had a c tually com e
to Jackson to have lunch with Burke. They h ad drinks and ended up at Burke’s apartm ent in bed. Burke said Kelly w anted to hav e sex, but Burke ref used. Burke texted Craig: “[ W ]ith the ease [ Kelly ] went f rom try ing to s ell m e s h akes to wanting to b e with m e I doubt
I’m her f irst.” Burke then of

f e red to send Craig several raunchy “sex texts” b etween Kelly and him

. C raig assented, and Burke sent a series of sexually explicit t ext m essages to Craig. Kelly l ater testif

ied that Burke m ade up the m essages. The chancellor later f ound these texts “troubling.” ¶15. The sam e m orning t he sex texts were sent, P ine Grove staf f requested Craig com e f

or a f am ily m eeting with K elly and “expect the worst,” because the m arriage was broken and Kelly w as leaving. However, Kelly m aintained that the m arriage was over long bef ore she

8went to P ine Grove. W hen conf ronted by C raig, Kelly adm i tted t he sexual texts with Burke were valid, and that she went to Burke’s apartm e nt instead of her aunt’s house. Kelly

also adm itted t o Craig that she had c om m itted adultery with Burke. 5 I n response, Craig told Kelly not to return to the m arital house. Kelly claim ed she was “kicked out” of the house. ¶16. Upon discharge f

rom Pine G rove, Kelly supposedly stay ed w ith her parents f or a f ew day s and then m oved into Burke’s apartm ent i n Ridgeland. Again, the e xact dates vary . She claim ed Burke “ stay ed elsewhere.” K e l ly did not com ply with the Pine Grove discharge

recom m endations of therapy , m edicat i o ns, and ninety day s of Alcoholics Anony m ous. At

som e point Kelly rented an a partm ent near Bur k e ’ s i n the sam e c o m plex. He p aid f

or her rent, u t ilities, f

ood, and all of her expenses because she was “hom eless and d estitute.” Kelly described Burke as her “soul m ate, rock, and best f riend.” She testif

i ed that she is happy with him , and he would probably be her boy f

riend once the divorce is concluded. ¶17. Craig t estif

ied t hat h e takes care of the children’s needs, even though h e works l ong hours. H e r e c e i v es help f rom his nearby f

am ily m e m

bers a s needed f

or child care and tutoring. Craig lives in t he m arital f our-bedroom h om e near Purvis, while Kelly now lives
in a three-bedroom a p a r t me nt in Pearl. Kelly ’s parents live i n Hattiesburg, and her grandparents live in Purvis, but she testif ied she plans on stay ing i n the Jackson area. At the tim e of trial, Kelly h a d a new job at a day care ma k ing $12 an h our f or a f orty

- hour work

5 C raig later f

iled an a lien atio n -o f

-af f e c t i o n l aw su it ag ain st B u rk e. A t o n e p o in t, K e lly ad m itted s h e started h av in g sex w ith B u r k e i n J u ly 2 0 1 3 ; h o w ev er, th e d ates th eir sex u al relatio n sh i p co m m en ced v ary . 9week. Kelly testif ied that she has n o m ental-health issues; her d epres s i on was cured by
pray e r. ¶18. During their m arriage, Craig testif ied that Kelly received $23,790 in ch i l d s u p p o rt f rom Chad t hat he did not know about. At a c e r t a i n p o i n t , K e lly told both Craig and the Sharf f children that she d id not know w h e t h e r C h a d w a s “dead o r alive,” and that she had

rec e i v e d n o child support f r om him

. Later, Craig learned Chad had not m issed a childsupport p ay

m ent s ince October 2 007. Further, Chad stated Kelly had thwarted his visitation ef f orts. Under the c ourt’s second tem porary order o f Septem

ber 19, 2013, K elly was to pay Craig any child-support pay m ents received b y Chad, but adm ittedly did not. Craig stated she owed h im $5,474.46 f

or the am ount paid by Chad s ince the tem porary court order. C r a i g calculated he had spent $24,777.60 i n m edical insurance f or the Sharf

f children since his

m arriage to Kelly , in addition to m edical and dental expenses f or the children. ¶19. Craig testif

ied that Kelly

started drinking at hom e t oward t he end of their m arriage.
He f ound em pty C rown Roy al b ottles in the house. Kelly ’ s bank statem ents w e r e e n tered into evidence showing Chad’s child-support p a y m e n t deposits a s well as K elly ’s liquor purchases. Craig also noted there were no rental or utility pay m ents listed, although Kelly said she had her own apartm ent. Craig com p lained that Kelly did not use the child-support
pay m ents she received f

or the children, but on herself

. ¶20. At the tim e o f separation, Kell y w a s s t i l l hom e schooling all of the children. Craig would com e hom e f

rom work and Kelly would be in b ed with the children watching DVDs,

1 0or Kelly h ad gone to the gy m and lef t Phillip in charge. K e l l y claim ed three o f the f our children have dy slexia. A f ter separation, once C r aig had tem porary custody , he p u t the children in public school, but three of the children were behind in grade level. ¶21. Craig was involved in c oaching som e of the children’s s ports, but testif ied t hat Kelly had not attended any sports events during the s um m er of 2013. She attended a f ew school
program s in 2013, and had n ot b e e n i n v o lved during 2 014. K elly justif ied her absence at sporting events and school f unctions by claim i ng the Purvis com m unity shunned her. The children of

t en m issed sports e vents f o r v i s i tation with K elly

. Craig testif ied that Kelly ref used to work with him

on altering the visitation schedule when there was a conf lict. ¶22. Sixteen-y ear-old Phillip executed an af f idavit m aking a n election of pref erence to live

w i t h Craig. He also testif i ed a t trial. He considers Craig a f ather f igure, and all of hi s siblings “a group.” He did not want to be separated f rom them , and did not want to live in Jackson, a s he h a s n o r e l a t i v es there. Also, he has to take care of his siblings m ore in Jackson when visiting his m other. H e cla i me d C r a i g never treated the Sharf f children dif f erently

. He knew Kelly lives with Burke a nd c l aim e d Burke has spent the night a t Kelly ’s apartm ent while he a nd his siblings were there. Phillip a l so adm itted Kelly did not d o a good job hom eschooling. W hen he started school in P urvis, Phillip stated he was b ehind in every subject and h is m other did nothing to help because she did not attend parent-teacher m eetings

or sporting events. Play ing sports is im portant to P hillip, but h e said h is m other m akes h im
f eel b ad f o r m issing visitation on Friday s. Be f ore separation, Phillip com m ented that his

1 1m other was present in t he hom e but “not really there.” She also tended to “ quit w hen things

g o t t o u g h , ” and lef

t h im in c harge. In the past, Phillip had agreed to be adopted by C r a i g , although it never occurred. ¶23. Craig worried that if Kelly were awarded custody , she would return to hom eschooling the children, as she is “com pletely disgusted” that her children are now in public school in Purvis. He was also c oncerned a bout Kelly ’s continued relationship with Burke, as well as his d rinking problem , P T S D, a nd alleged atheism

. Kelly was also violating the tem porary order by exposing the children t o Burke. The children t old Craig that Burke was at Kelly ’s apartm ent when they visit their m other. During one incident, Craig testif ied that B urke had grabbed Peter by t he shirt when Peter lo c k e d h i ms e l f in a b edroom , and Peter cried when telling Craig about it, although K elly told the children not to m ention the incident to Craig. Further, t ext m essages were entered into evidence showing Kelly wanted p erm ission f rom Craig f o r Burke to take the children to the s tate f a ir, af ter the tem

porary order was entered that Burke should n ot h a ve contact with the children. Additionally , Craig entered a photograph into evidence that K elly had published on social m edia showing Kelly and Burke enjoy ing them s e lves at the Ritz Carlton lounge in Georgia. Instead o f e x ercising visitation with h e r children one w eekend, Kelly had attended a lavish “W illiam son f am ily vacation” with Burke and his f

am ily

. ¶24. Burke i s a w eb designer that works f or C Spire. B urke testif

ied that h is hom e m ailing address is Kelly ’ s address in Pearl. He w as aware of the tem p orary court orders but unsure

1 2of when h e realized he was prohibited f rom being around the children. He adm itted that he is K elly ’ s boy f

riend. She m o v e d i n to his place, and t hey started h aving sex in June 2013; however, she pursued h im

. He claim ed that when Kelly told the GAL t hey were not having “relations,” that was u ntrue. Burke adm itted the sex texts h e sent t o C raig w ere m eant to hurt Craig. Burke had edited t hem in order to m ake the com m unications m ore painf

u l to Craig and cast Kelly in the worst light possible; however, Kelly has f orgiven h im

. He said he had

no interest in getting m a rried to Kelly even if she were awarded custody

. Burke also

a d mi t t e d h e had been around the children during visitations. In his deposition, it was his opinion that if

Kelly had custody

of her f our children, it would be “an F’ing nightm are.” ¶25. Kelly agreed t he children should not be separated, but that she should have custody

. Kelly stated she was the children’s prim ary caregiver during the m arriage. Kel l y denied telling t he G AL that Chad a nd C raig were colluding t o d e p r ive her of custody of her childre n , 6 as w ell as that she hid child-support f unds bef ore or af ter t he separation. She claim ed that C raig told her s he did not h ave to pay h im child support since the s e p a r a t i o n , and she used the f

unds t o pay f

or the court-ordered psy chologist. However, she adm itted “it

was not a m atter of need” a nd she knew she was v iolating a court order. She also adm itted not pay ing Craig f

or the children’s m edical expenses. ¶26. K e l ly acknowledged that Craig was the f ather f igure and role m odel f

o r a l l o f t h e

6 H o w ev e r, th is is an arg u m en t K elly m ak es o n a p p eal reg ard in g C h ad ’s p etitio n to m o d if y ch ild su p p o rt an d its in v o lu n tary d ism i ssal. 1 3children. Regarding P hillip’s s ports schedules a nd v isitation, she claim s that if the situation

were reversed, she would f orce Phillip to visit C raig, as “f am ily com es f

irst.” She described
h e r parenting skills as excellent, stating she has been a baby s itter, day -care worker , a n d hom eschool teacher, and went to parenting a nd continuing-education classes. She believes the Bible teaches h o w to raise a child. Further, s he stated that h er sexual i m m orality should be discounted because s he did not have sex with Burke until af t er s e paration f

r om Craig, and thus it does not actually constitute adultery . Kelly accused Craig of

m arital rape f

or y ears, assuring the court she had a pprised Pine Grove of t h e ma t t e r ; h owever, no record of the

a l l e g a t i o n was f

ound. Kelly adm itted that Burke had been a r ound the children num er o u s tim es despite t he tem

p orary order, and if she received custody he would b e with them “a lot.” Chad’s whereabouts are unknown to her; she b elieved a t one tim e his parental rights should be term inated, but now s h e “ just w ants him out of the picture.” She believes this scenario would be best f

o r the Sharf

f children. ¶27. Kelly ’s support sy stem in Jackson would c o n s i s t o f day

- care centers related to her work, and relatives. She claim ed she just agreed to Craig’s tem porary custody at the outset of the case t o a l l o w t h e c h i l dren to f inish out t he rest of the s chool y ear b ef o re she was awarded custody

. Kelly explained when she drank too m uch i t was to steel herself because Craig h ad a penchant f

or rough sex, but she denied alcoholism

. Kelly claim s to suf f er f rom dy scalculia, a condition that im pacts her a

bility to r em em

ber dates, tim es, a nd directi o n s . Additionally , Kelly said she m issed school events because Craig did not i nf orm her, and she

1 4should not have to look up e vents on a website. Kelly denied that h er hom eschooling ef f orts constituted “ baby sitting.” K e l l y a c k n owledged that Burke is on an antidepressant. Kelly stated she is com f

ortable with t he children seeing her A m erican-f lag photograph. She explained that the decision to go on Burke’s f am ily ’s vacation during her visitation weekend was not wrong and was in the best interest of the children because she “had to be m entally

st r ong.” Kelly acknowledged she is at her t hird job since the case began, m aking $33,000
a y ear at a day

care. ¶28. At trial, Dr. Daniel M oore, a licensed psy chologist, testif ied about Kelly ’ s and Craig’s court-ordered psy c hological evaluations. Kelly denied to Dr. Moore any suicidal ideations, although the Pine Grove records indicate Kelly told them she had experienced f ourteen y ears of s uicidal thoughts and i deations. Dr. Moore d id not f eel Kelly was at a signif

icant risk f

or suicide; she had no sy

m ptom s of depression or anxiety and had quit taking a ntidepressants. Kelly ’s i ssues e x p r e s s ed at Pine G rove were resolved o r dif f erent. He f

o und Kelly easily

m anipulated, that she used drinking as an escape, a n d her af f air created inner turm oil. Craig he deem ed as psy chologically f it as the general population. ¶29. The GAL, J a me s J o h n s o n , subm itted three reports o ver the c o urse of t he case and testif i ed at trial. H e f

ound the children were doing well in Craig’s custody , and w hile both parents had saf

e a bodes, the children did not w a n t t o s t a y a t Kelly ’s a p artm ent. The GAL stated it was in their b est interest to stay together. Johnson stated the c hildren’s needs were better m et with C raig regarding protection and provision. Moreover, Chad chose Craig over

1 5Kelly to parent his children. He noted Kelly h as stability in P earl, but her continued

relationship with Burke is conf u sing to the c hildren. He was n o t c o n c erned with Burke’s
PTSD if the children did not spend the night with him

. Johnson agreed with Dr. Moore that Kelly has no m ental issues of concern now; Kelly ’s stay at Pine Grove appeared to be m ore “respite” ty

pe care encouraged by her m other. Johnson stated K elly perceives h e rself as a victim

. Additionally , Burke’s d i s h o n esty with t he court w as potentially a m oral-f itness

concern. Johnson a l s o stated K elly ’s f ailure to turn over the child support paid to her by Chad f or the Sharf

f children was a m oral-f

itness concern due to her knowing n oncom pliance with a c o u r t o r d e r . He also acknowledged d iscrepancies with Kelly ’s testim ony about the date she m oved in with Burke u pon release f

rom P ine Grove; however, K e l ly m aintained she

was “ b ack and f

orth” b etween Ridgeland and Hattiesburg d u r i n g t h at tim e. Johnson

recom m ended the children rem ain in public school and not be hom eschooled. Ul t im ately , Johnson f elt t he children w ould be better of f with Craig, and Kelly should h ave liberal visitation.
THE CHANCERY COURT’S ALBRIGHT- FACTOR FINDINGS ¶30. U p o n f

i n d i n g Kelly and Chad’s natural-parent presum ption rebutted, th e c o u r t conducted an Albright analy s is f or all f our children. 7 Although the court’s Albright analy sis

was not challenged by K elly , there is an overlap of the analy sis o f the A lbright f actors with

7 T h e ch an cello r d id n o t ad o p t th e f in d in g s o f t h e G A L reg ard in g th e A lb rig h t f acto rs, as so m e c o n clu sio n s w ere d if f eren t. 1 6t

h e n a t u ral-parent-presum

ption rebuttal. The court’s Albright a naly s i s g i v e s m o r e i n s i g h t i n t o the f a cts of the c ase; theref

ore, we shall sum m arize the f indings. Ultim ately , t he court f ound all of the f actors f avored Craig but parent/child em otional ties, which was neutral. ¶31. Citing a t ext-m e s s a g e exchange between Craig a n d Kelly when one of the children

was sick d

uring visitation, the chancel l o r f o u n d age, health, and gender of the children
f a v o r e d C raig. Kelly had r ef used to take the child to the doctor f or bad sinus drainage, wanting C raig to do it once h er visitation was over. She claim ed not to have m oney f or the
copay m e nt, although the court noted she w as able to b orrow m oney f rom Burke to go to the

state f air. The c ourt f

o u nd this incident “an exam ple o f how Kelly ’ s self

- p e r c e i ved victim i z a t i o n a d v ersely af f ects the children in a direct way .” Continuity o f care f avored Craig, a s the court f

ound K elly ’ s ho m e s chooling was “inef f ective at best and negligent at worst.” Further, n o appa r e n t problem s with care o f the children h ad b een seen with Craig since the separation. ¶32. As to parenting s kills and the capacity t o provide child care, the court f ound the f actor
to f avor Craig. W hile both parents expressed willingness to par e n t t h e children, the court noted K elly ’s def

iance of the court’s order prohibiting the children f rom being a round Burke. The c o u r t deem ed Burke “detrim ental to the children’s best i nterests.” The court f ound Kelly ’s f ailu r e “ i s d

u e in large part to her perception t hat there i s nothing harm f ul about having the children around [ Burke], which the Court f inds does not evince good parenting skills

. . . nor good j udgm ent.” W h ile both parents could have worked better to solve

1 7visitation problem s, the cou r t d eem ed Kelly ’s actions self ish. “[ E]ven older teenagers do

not get to say whether they w i l l a t t end visitation or not, but a parent who denies a child participation in an activity that the child enjoy s and that prom otes his health, his conf idence, and his social well-being is thinking only of herself .” Em p loy m ent was f

ound to f avor Craig; both p arties work during the d ay tim e, but Kelly does not have a s mu c h f a m i l y s upport as Craig. Phy sical health, m e ntal health, and age f avored C raig. The court f ound while both parties were close to the sam e age, Kelly ’s m edical records indicate a history of d epression and attention def

i cit hy peractivity disorder. The em otional-ties f actor w as deem ed neutral

as to K e l l y and Craig. Moral f itness f avored Craig, as Kelly adm itted to post-separation adultery and had a pre-separation inf atuation with Burke. Hom e, school, and com mu n i t y records of the children f

avored Craig. Even though Kelly hom eschooled t he children prior

to t he separation, they f

a r ed b etter academ ically under Craig’s custody in public school. Further, in the Purvis/Hattiesburg area, the children h ave an extended f a m ily on both sides, have m ade f

riends, are involved i n extracurricular activities, and attend school. Moving to Jackson would m ake them “start over” in these regards. ¶33. T h e c h i l d r e n ’ s p r e f e r ence applies only to the Sharf f children d

ue to the B u r g e children’s y o ung ages. Perry did not express a pref erence e xcept to rem ain with his siblings; Phillip expressed a strong desire to rem ain with C r a i g ; so t he f actor f avored Craig. The stability of t h e h o m e environm ent and e m ploy m ent f avored Craig, who still resides in the

m arital hom e. Craig has been em p loy ed b y his f

am i ly ’s logging business f or several y ears,

1 8while Kelly is on her third j ob s ince the separation. O t her f actors relevant to the parent-child relationship all f

avored Craig. The parties’ f inancial situation and r e l igion f avored Craig. He is better able to support the children f inancially , and is m ore active with the children in church. The c hancellor f

ound it “clearly evident that t he personal values o f the parents are quite dif f erent,” and that f

actor f avored Craig. Parental lif

esty le also f

a vored Craig; the court

com m ented, “Craig appears to be f ocused o n and o riented toward the f am ily

. Kelly , on the other hand, is f

ocused prim arily on her own interests and her r elationship w ith Burke.” Finally , Craig, Kelly , Phillip, and the GAL all indicated the children should stay together.
STANDARD OF REVIEW ¶34. Our standard o f review in child-custody cases is lim ited. B orden v
. Borden , 167 S o. 3d 238, 241 (¶4) (Miss. 2014). This Court will o nly r everse a chancellor’s custody decision
if it was m anif

e stly wrong o r clearly erroneous, or if an e rroneous legal standard was applied.
In re W aites , 1 52 So. 3d 306, 311 (¶13) (Miss. 2 014). Appellate c o urts cannot “reevaluate the evidence, retest the credibility of witnesses, nor otherwise act as a second f a c t-f inder.”
Bower v. Bower , 758 So. 2 d 4 05, 412 (¶31) (Miss. 2000) (citation om itted). Questions of law are reviewed de novo. In re Custody of M.A.G. , 859 So. 2d 1001, 1003 (¶4) (Miss. 2003).
ANALYSIS ¶35. Kelly raises one substantive and one procedural a rgum ent r elated to the two S h arf f children and the rebuttal of her natural-parent p resum ption. W e shall address each in turn.
I. Rebuttal of Kelly ’s Natural-Parent Presum ption

1 9¶36. Kelly argues that i t was error f or the chancellor to f

ind her natural-parent presum ption

as to her children with Chad was r ebutted because of im m oral conduct and unf itness. Kelly

states t hese f

indings were im

properly based on her continued relationship with h er param our, Burke, a nd the f

a ilure to com

pl y w i t h the chancery court’s tem p orary orders regarding
pay m ent of child support to Craig and the children’s exposure to Burke. Kelly also argues that the c hancellor applied an erroneous legal standard in m aking t he f indings that engaging
in a p ost-separation af

f air and acting in contem

pt of a court order c o nstitute m o ral or m ental unf itness suf f icient to rebut the natural-parent presum ption. W e disagree. ¶37. “ T h e b e s t interest o f the c hild is param ount in any child-custody case. ” S m i t h v
. Smith , 9 7 So. 3d 43, 46 (¶8) (Miss. 2012). “In custody battles between a natural parent and

a third party , it is p resum e d that it is in the child’s best i n t e r e s t t o r e m a i n with his or her natural parent.” Id

. I n order to be awarded custody , the third party must rebut the naturalparent presum

ption by cle a r and convincing evidence. The natural-parent presum ption is reb u t t e d by clearly showing: “(1) the parent has abandoned the child; (2) the p arent has deserted the child; (3) t he parent’s conduct is so i mmo ral as to be detrim ental to the child;

or (4) the parent is unf

it, m entally or otherwise, to have c ustody .” Id. at (¶9) ( c i t a t i ons

om itted). If successf

ul, the chancellor m

ust next exam ine the Albright f actors and determ ine
if third-party custody is in the best interest of the child. A f inding of unf

itness is necessary
to award custody to a third party over a natural parent, and i s done bef ore a n aly sis of the Albright f actors. M.A.G. , 859 So. 2d at 1004 (¶6).

2 0¶38. A perso n i s i n l o c o p arentis “ who stands in p lace of a parent, having assum ed the

status and obligations of a parent.” Davis v. Vaughn , 126 S o. 3d 33, 37 (¶11) (Miss. 2013) (citation om itted). 8 “The doctrine of in loco parentis does not, by itself , overcom e the natural-parent presum

ption,” although i t m ay be a f actor in determ ining whether the
presum ption has been rebutted. Smith , 97 So. 3d at 46-47 (¶¶10-11). ¶39. Because Craig sought custody of the two Sharf f children, i n a ddition to his own two children, t he c hancery c ourt analy zed his request under the child-custody law r elated to the natural p arent versus a third party

. The chancery c ourt f ound b oth K elly and Chad’s naturalparent presum

ption rebutted. Kelly ’s conduct was f o und t o be im m oral. In support of this
f inding, the court pointed to: [ Kelly ’s] r epeated f

ailure to f ollow the Court’s orders; her f ailure to protect her children f

rom Burke W illiam son, who the Court deem s to be a danger to

8 T h e M ississip p i S u p rem e C o u rt h as f u rth e r stated : A n y p e r s o n w h o t a k es a ch ild o f an o th er in to h i s h o m e an d treats it as a m em b er o f h i s f

a m ily , p ro v id in g p aren tal su p erv isio n , su p p o rt an d ed u catio n , as if it w e re h i s o w n ch ild , is said to stan d in lo co p a ren tis

. In lo co p a r en tis s t a t u s carries w ith it th e sam e d u ties an d liab ilities th at b e l o n g to a n a t u r a l p aren t, in clu d in g a rig h t to cu sto d y o f th e ch ild “as ag a in st th ird p erso n s.”
A l th o u g h th is d o ctrin e g ran ts th ird p arties certain p aren tal rig h ts, su ch rig h ts are in f e rio r t o th o se o f a n atu ral p aren t. T h u s, in a cu sto d y d isp u te b e tw een o n e s tan d i n g i n lo co p a ren tis an d a n atu ral p aren t, th e p aren t is e n titled to cu sto d y u n less th e n atu ral-p aren t p resu m p tio n is reb u tted

. T h e co u rt m ay n o t co n sid er g ran tin g cu sto d y to a th ird p arty , i n c l u d in g o n e s tan d in g i n lo co p a ren tis , u n l ess an d u n til th e th i rd p arty reb u t s th is p resu m

p t io n . D a vis , 1 2 6 S o . 3 d at 3 7 (¶¶1 1 -1 2 ) (in tern al citatio n s o m i tted ). 2 1the children, instead engaging W illiam s on in a n i n t i m a te relationship; her

f ailure to support the children by seeing that the child support m oney paid to her by Chad Sharf

f was given to Craig f

or the use and benef

it of t he children, instead of spending it on herself

. Additionally , the chancery c ourt f ound Kelly u nf

it, m entally o r o therwise, to have custody , stating: [ T]he Court a gain considers [ Kelly ’s] f a i lures where it p ertains to the children

– to ensure their support, t o f oll o w t h e C o u r t’s orders, to protect them f rom harm . Not only

has Kelly

def ied and ref

used to obey the Court’s prohibition against having t he children around Burke W illiam son, an individual the Court deem s to be detrim ental t o the children’s best interests, [ but] it appears to the Court that Kelly ’s said f

ailure is due in large part to her perception that there is nothing h arm f

ul a bout having t he children a r ound W i lliam son. Given the exhaustive a mo u nt of evidence in the record concerning W illiam s on, her decisions regarding W illiam so n a n d the children seriously call h er parental f itness and her m ental f

itness into question, to the point that the C ourt deem s it necessary

to intervene f

or the sake of

the children. The chancery court also f ound it “necessary to point out how incredible the C o u r t f i n ds Kelly ’s testim ony

to be, in nearly

all respects.” ¶40. On appeal, Kelly of f ers very little in the way o f argum ent o n this issue, except to state the clear and convincing burden was not m et, and the f inding w a s a n “extrem e and unjust

s a n c t i o n f

or contem

pt.” Upon caref

ul review, w e f

ind the chancery c ourt’s f indings t ha t Kelly was im m oral and unf

it supported by

substantial evidence. ¶41. The court’s f

indings are lengthy

and detailed. As pointed out by the c h ancellor and Craig, Kelly did not l ose c ustody over a f ew m odest indiscretions, but instead by m aking

constant choices that f

a vored h er own desires over her children’s best interests. I ndeed, her relat i o n s h i p with her “soulm ate” Burke a ppears to take p recedence o ver custody of her
2 2children. Th e chancellor w as so concerned about B urke’s being a round the children, he

twice e njoined B urke f

rom contact with them

. Burke’s history includes alcoholism , PTSD, adultery , and disobey ing c ourt orders. Burke a dm itted he has PTSD, he is taking m edication
f or it, and there is n o cure. He a lso adm itted to drinking several day s a w eek. The chancellor specif ically stated that h e f

ound it “necessary to intervene f or the sake o f t he children.” The ch a n c e llor also f

o und it necessary to threaten Burke w i th perjury on the stand d ue to his

e vasive and obviously untruthf ul testim ony about K elly ’s f lag p hotograph and when they started a sexual relationship. ¶42. Kelly ’s relationship w i t h B u r k e w a s n o t t h e o n l y r e a s o n h e r n a t u r al-parent
presum ption was r ebutted. Im

portantly , the chancellor noted a pattern of behavior by Kelly of m isleading the GAL, Dr. Moore, and the court itself , w hich was ref

l ected in the record.
Her testim ony was f

requently c o ntradictory about dates, places, and tim es, although she apparently

blam es the discrepancies on dy scalculia. ¶43. Kelly ’s inability to respect and obey the c o urt’s directives also points to her lack of

m orality and f

itness a s a parent. Kelly def ied the court’s tem

p orary o rders by living with Burke, e xposing her children to Burke durin g v i sitation, a llowing Burke to d iscipline phy sically one of her children, and ref using to pay Chad’s c hild-support p ay m ents to Craig. Additionally , she was not truthf ul about whether Chad w as m a king child-support pay m ents. ¶44. Chancellors m a ke third-party cu s t o d y d e c i sions o n a case-by

- case basis and have wide discretion in their r

uling s . W e c a n n o t f

i nd t hat the c h ancellor abused his discretion in

2 3awarding legal and phy sical c ustody of the Sharf f c h ildren to Craig because Kelly was f ound
im m oral and unf

it. K elly placed her relationship with Burke above a l l concerns f o r h er children, even though her relationship with Burke was detrim e ntal to her children, and
im p eded h er ability to gain legal and phy sical custody of them

. She f urther used the m oney Chad p a i d her as child support f or her own personal expenses. Craig b elieved she also planned to continue to hom eschool the children even t hough i t was f ound d etrim ental to their

e ducation. Kelly f

ailed to com

ply with the Pine Grove discharge recom m endations. The children’s needs and welf are were alway s placed behind those of Kelly

. II. Involuntary Dism i ssal of Chad’s Custody -Modification Claim s ¶45. Kelly m akes the procedural argum ent that the chancery c ourt’s jurisdiction over the Sharf f d i v o r ce ended when Chad’s custody -m o dif ication pleadings were involuntarily dism issed due to f

ailu r e t o prosecute. She claim s that because Craig lacks standing in the Sharf f divorce, no m otion f

or m odif ication survived, and the chancery court lacked grounds and jurisdiction to m o dif

y t he Sharf

f action. Additionally , Kelly contends t hat the record supports collusion betwee n C r a i g a nd Chad, who w ere attem pting t o deprive Kelly of custody of her f o ur m inor children by m isuse of the procedural process. W e a r e n ot persuaded by this
argum ent. ¶46. I n i t i a l l y , C h a d f

i led a petition to join Craig’s case “f or just adjudication, ” a n d requested Craig have custody o f the children so as not to separate them

. Alternatively , Chad requested he have custody

. A pproxim ately ten m onths later, Chad f i led a petition to m odif

y

2 4child custody in his own case, requesting legal and phy sical custody of his two children, since

a m aterial change in circum stances had occurred – the Burge d ivorce p roceedings. He also
f iled a m otion to transf

e r and consolidate his case with Craig’s case, since the sam e evidence would be presented in bo th c ases to determ i ne custody

. Likewise, Craig f iled a m otion to consolidate his case with Chad’s case, and bef ore trial began, the cases were consolidated. ¶47. At the conclusion of Craig’s and Chad’s case-in-chief , Kelly ’s c ounsel m a de an ore

t e n u s m otion f

or the involuntary dism issal of Chad’s custody -m odif ication action under Mississippi Rule of Civil Procedure 41(b), because C had had not presented any e vidence at trial to f orward his claim

. 9 Indeed, Chad had not been phy sically present d u r i n g t he trial since an initial m otions hearing nearly eight m onths earlier. A ccordingly , the chancery court granted Kelly ’s Rule 41(b) m otion to dism iss, deny ing any relief r equested by C h ad f or custody of his children. H o w e v er, in the chancellor’s opinion, he stated that the Sharf f divorce judgm ent was m odif ied by Craig’s grant of custody

. ¶48. From t his ruling, Kelly argues that the involunta r y d i s m i s s a l o f C h a d’s custody

m odif ication in this case m a kes it “legally im possible” f

or t he c h ancery court to address a change of custody f

or the Sharf

f children f

rom K elly to Craig. She contends the i nvoluntary dism issal was an a djudication on the m erits, and Craig n o longer has standing in the Sharf f case. Thus, the court lacked jurisdiction to m odif y the custody i n it, and the children m ust

rem ain in Kelly ’s custody . W e disagree.

9 R u le 4 1 (b ) allo w s f

o r in v o lu n tary

d i sm issal f

o r f ailu re to p ro secu te. 2 5¶49. In Prof essor Deborah Bell’s f

am ily

- law treatise, she states:
A petition to m o dif

y . . . [ a ] c u s t o d y . . . order m u st be f iled in the court t hat issued t he decree. As between the pa r t i e s in t he original action, the issuing court’s jurisdiction is exclusive, precluding any other court i n t h e s tate f rom exe r c ising jurisdiction over the c ase. . . . However, if an issuing court f inds that adjudication in a nother court would be m ore ef f icient, jurisdiction m ay be transf erred to that court. Deborah H. B ell, Bell o n M ississippi Family Law , § 1 8

. 0 7 ( 1 ), at 447 (1st ed. 2005). Mississippi Code Annotated section 93-11-65 (Rev. 2013) a l lows the chancery court to hear

a c ustody case apart f

rom a divorce action. 1 0 Here, p rior t o the m odif ication action f

iled by Chad, Craig had f

i led f or third-party custody of the Sharf f children in this action. According

to s tatute, both actions w ere f iled i n the Lam ar County Chancery Court, as the Sharf f children resided in Lam ar C ounty in both actions, which i s where custody between the natural parents has already been adjudicated. Chad’s m odif ication action and Craig’s action a r e in the sam e chancery court, but with d if f erent cause n um

bers. C raig requested custody – som ething the

court could grant – a nd both natural parents were given notice and a n opportunity to be heard. The chancery court had the jurisdiction to m odif y custody of the Sharf

f c hildren. That

10 S ectio n 9 3

- 1 1 -6 5 (1 ) p ro v id es th at th e c h an cery c o u rt o f th e p ro p er co u n ty h as j u risd ictio n to h ear an d d eterm in e su its f o r cu sto d y o f m in o r ch ild ren . “P ro ceed in g s m ay b e b ro u g h t b y o r ag ain st a r esid en t o r n o n resid en t o f th e S tate o f M i s s issip p i, w h eth er o r n o t h av in g t h e actu al cu s to d y o f m in o r ch ild ren , f o r th e p u rp o se o f j u d icially d e t e r mi n i n g th e leg al cu sto d y o f a ch ild

. ” T h e a ctio n sh all b e b ro u g h t in th e co u n t y w h ere th e ch ild is actu ally resid in g , o r in th e co u n ty o f th e resid en ce o f th e p arty w ith actu al cu sto d y , o r in th e co u n ty o f th e resid en ce o f th e d ef en d an t. “P ro cess sh a l l b e h ad u p o n th e p arties as p ro v id ed b y law . . . .” 2 6jurisdiction was not lost w hen Chad’s petition to m odif y custody was dism issed. 11 Kelly has not cited any

authority to the contrary . This issue is without m e r it.

CONCLUSION ¶50. The c hancery court did not abuse its discret i o n i n f i n d i n g K e lly ’ s natural-parent
presum ption r e b u t t e d a nd in a warding phy sical and l egal custody o f the Sharf f children to Craig. The chancellor’s f indings w ere supported by clear and convincing evidence with the best interests of t he children in m ind. Further, Kelly ’s procedural a r gum ent is without m erit. Accordingly , this Court af f irm s the judgm ent of

the chancery

court granting custody of all
f our children to Craig. ¶51. AFFIRMED. LEE, C .J., I R

V I N G A N D G R I F F I S , P . J J . , I S H E E , C A R L T O N , F A I R , WILSON, GREENLEE AND WESTBROOKS, JJ., CONCUR.

11 E v en if th e actio n h ad b e en f iled in a d if

f eren t ch a n c ery co u r

t, t h e ch an cello r co u ld h av e tran sf

erred t h e actio n . H ere, th e actio n s w ere m erely co n s o lid a ted as th ey w ere alread y in th e sam e co u r

t. 2 7