IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO. 2017-CA-01467-COA MARCUS KARL SANDERS APPELLANT

v. SUMIE SANDERS APPELLEE DATE OF JUDGMENT: 09/19/2017 TRIAL JUDGE: HON. DOROTHY W INSTON COLOM COURT FROM W HICH APPEALED: OKTIBBEHA COUNTY CHANCERY COURT ATTORNEY FOR APPELLANT: JAMES PAUL TINSLEY ATTORNEY FOR APPELLEE: CARRIE A. JOURDAN NATURE OF THE CASE: CIVIL - DOMESTIC RELATIONS DISPOSITION: AFFIRMED - 05/14/2019 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE J. WILSON, P.J., GREENLEE AND McCARTY, JJ. J. WILSON, P.J., FOR THE COURT: ¶1. Marcus and Sum ie Sanders consented t o a n i r r e c o n cilable d if f erences divorce and agreed that t h e c h a n c ellor would determ ine custody of their daughter, Kristen, and related issues. Af

ter a trial, t he chancellor awarded Sum ie phy sical custody of Kristen and granted Marcus reasonable visitation. Marcus argues that the chancellor’s custody decision was based on a f

lawed Albright analy sis. He also argues that the chancellor f ailed to address his request f or declaratory relief related to an alleged risk of internationa l c h i l d abduction. Finally , Marcus a rgues that the chancellor erre d by f ollowing an unapproved local rule regarding tem

porary custody hearings. W e f

i nd no error and af

f irm

.FACTS AND PROCEDURAL HISTORY

¶2. M a r c u s S a n d e r s m oved f rom Mississippi to Japan t o teach English. In Japan, h e began a r elationship with S um ie, a Japanese c itizen. M arcus and Sum ie m a r r i e d in 2011. In addition to t eaching, Marcus started a business m aking YouTube videos. Sum ie worked f or a pharm aceutical com

pany and also studied law. In 2013, Sum ie gave birth to Kristen, the couple’s only child. Af t e r K risten’s birth, Sum ie stay ed at h om e, w hich led to som e f inancial dif

f iculty f or t he f am ily

. In 2014, they decided to m ove to Mississippi to be closer

to Marcus’s f

am ily and save m oney . Sum ie also testif ied that Marcus w as unhappy in Japan and wanted to m ove hom e to Mississippi. ¶3. Af ter Marcus m o v ed to Mississippi, Sum ie and Kristen rem ained in Japan f or three

m onths while Sum ie waited t o obtain a visa. W hen Sum ie and Kristen f inally a r r i v e d in Mississippi, they m oved with Marcus into h is p arents’ hom e i n Ethel. Marcus had decided

to f o cus on his g rowing YouTube business, and in Ethel he was able to record and produce his videos in a studio on his p a rents’ property that h is f ather had built. Sum ie did not work outside t he h om e, although she d id earn som e m oney o nline by buy ing and selling Am erican brand nam e item s to people in Japan. ¶4. Marcus prim aril y w o r k e d o n his YouTube videos a t night, so Sum ie was Kristen’s prim ary c aregiver. M a r c u s ’ s p arents, Mark and Melinda, also h elped with K risten’s care. Marcu s u sually was asleep during the day due to his u nusual work hours, but he did occasionally

play with Kristen or help put her to bed at night. ¶5. Sum ie d id not have a c a r o r a d r i v e r’s license when they m oved in with Marcus’s

2parents; thus, she had to rely on her m other-in-law f or t r a n s p o r t a t i o n. Even af ter Sum ie obtained a driver’s license, she had to ask her m other-in-law to borrow a c a r. Sum ie was not happy i n E thel. Af

ter living with Marcus’s parents f o r a b o u t a y e a r , M arcus, Sum ie, and Kristen m oved to an apartm ent in Starkville. L i v i n g in S tarkville allowed Sum ie to take Kristen on outings to local e vents, the library , book stores, and the swim m i ng pool at their apartm ent com

plex. Sum ie m ade som e new f r iends who also h ad children, a nd they would of ten have play dates. Sum ie and Marcus s hared a car, but she testif ied t hat Marcus did not allow her to go any

f arther than Colum

bus without his perm ission. ¶6. In late 2 015, Marcus and Sum ie had a f ight. In the heat of

the m om ent, Sum ie said that sh e m i g h t j u st “disappear.” Marcus testif ied that this rem a rk scared h im and that he becam e f e a r f u l t h a t Sum ie would abscond with Kristen to Japan. He started keeping Kristen’s passport locked away f r om Sum ie. ¶7. I n M a r c h 2 0 1 6 , Marcus went t o Atlanta to visit s o m e f riends. W h ile he was out of town, Sum ie lef

t the hom e . S he and Kristen went to a dom estic abuse shel t e r , a l though Sum ie does not allege t hat Marcus ever phy sically abused h er or Kristen. She testif ied that she lef t because she was f

earf ul f or her saf e ty and her daughter’s saf ety because Marcus had become e x trem ely controlling. Sum ie testif ied that Marcus prevented her f rom traveling f reely and tightly controlled h e r spending. She said that Marcus alway s wanted r eceipts f or any m o ney that she spent and would not give her access to the f am ily Am azon account. ¶8. W h en S um ie m oved out, she f iled a com

plaint f or divorce and f

or c ustody of Kristen. Marcus answered and f

iled a counterclaim f

or divorce and custody

. On April 22, 2016, an

3agreed order w as entered s etting a hearing on tem porary m atters, includ i n g c u stody

. The order provided that t em

porary m atters would be decided based on af f idavits subm itted by the parties. Both parties subm itted m u l t i p l e a f f i davits. On May 9, 2016, the chancery court entered a tem

porary order granting Sum ie tem porary p hy sical c ustody of Kristen, granting Marcu s t e mp o r a r y visitation of every other weekend plus three weeks during t he sum m er, and g r a nting t he parties tem p o rary joint legal custody

. In February 2017, the parties withdrew their f

ault-based claim s f

or divorce and consented to an irreconcilable d if f erences divorce. They agreed that the c hancellor would determ i ne Kristen’s c ustody , visitation, and related issues. In March 2017, the case proceeded to trial on the stipulated issues. ¶9. Af ter t h e s eparation, Marcus m oved back to his parents’ h om e in Ethel, a nd Sum ie and K risten m oved back into t he couple’s apartm ent in Starkville. Sum ie testif ied that she had been looking f

o r w ork in Mississippi, but she was unable to f i nd a job. She testif

ied that she had som e i n t e r v i e w s scheduled in New Y ork but that if she c ould not f ind a job in the United States, she intended t o return t o Japan. W hile Marcus h ad Kristen f or three weeks of visitation under the tem

porary custody order, Sum i e went h om e t o Japan to visit her f am ily

. W h ile Sum ie was in Japan, she obtained certif ications that she thought m ight help her f ind

a job as a f

itness, diving, or swim m ing instructor. She and Kristen had been able to get by

on tem porary child support a nd alim ony , as well as m oney that her m other sent f rom Japan. ¶10. S u mi e t e s t i f

i ed that if she ever did m ove back to Japan, she would want Marcus t o have lengthy visits w ith K r i s t e n t w i c e a y ear. She agreed that Marcus a n d Kristen should have a r elationship a nd that he was not a bad f a ther. But she also believed that Marcus did

4not alway s think about his f am ily and how his actions af f ected them

. She pointed t o the f act that Marcus worked m ost nights and slept during t he day and rarely ate m eals with her and Kristen. ¶11. Marcus testif

ied that h e had m odif

ied his working hours s ince the separation in order

to be able to take c are of Kristen during visitation. He denied any suggestion that he was not around to help care f

or Kristen. He testif

ied that he would of

ten play with her or watch TV with her when they lived at his parents’ hom e in Ethel. He acknowledged that his working hours were unusual, but h e believed that he saw Kristen m ore of ten t han a p a r e n t w ho worked a “norm al” nine-to-f ive job. ¶12. M a r c u s asserted t hat Sum i e did n ot give Kristen enough attention. He t hought tha t Sum ie was on h e r c o m puter too m

uch and that s he allowed K risten to watch ageinappropriate videos. H e also said that Sum ie did not pay enough atten t i o n t o Kristen’s clothing and shoe needs. He claim ed that Kristen’s shoes were slightly too large and were causing blisters. He was also concerned about Kristen’s education if Sum ie m oved back to Japan because Kristen’s Japanese is not on par with her peers in Japan. ¶13. Marcus denied that he was controlling. H e s a id Sum ie had access to his parents’ car when they

lived in Ethel and could m ake trips to the grocery store. Marcus acknowledged that S um i e was unhappy in Ethel, b ut he said that she did not m ake an ef f ort to socialize with others. He denied telling her t hat she could not go f a r ther than C o lum

bus but adm itted that he did have som e trust i ssues a f t er Sum ie said that she m i ght “disappear.” He also adm itted that he kept Kristen’s passport af ter that incident. Thus, h e knew that Sum i e had n ot lef t the

5country

when she lef

t the m arital hom e in March 2016. ¶14. Juy ong Lee, a f

r i end of Sum ie’s, testif

ied that Sum ie was a good m other. She said she had never seen any red f

lags in Sum ie’s parenting and t hat Kristen was a good child. Lee and Sum ie m et through Sum ie’s involvem ent with an outreach p rogram f or Japanese culture at Mississippi State University

. ¶15. Sum ie’s therapist, Dr. Diane Prude, testif ied t hat Sum ie and Kristen had a strong bond and that Kristen was a norm a l, happy child. Prude testif ied that Sum ie w as less s tressed and had better self

-esteem since her separation f

rom Marcus. ¶16. Megan Houston, who l ived at the sam e apartm ent com p l e x a s S u m i e and Marcus, testif i ed about her f

riendship w ith Su m ie. Both Houston and Sum ie are stay -at-hom e

m others with sm all children, and their children play together several tim es eac h w e e k. Houston testif

ied that Sum i e is loving, kind, and attentive to Kristen. From H ouston’s perspective, K r i s t e n w as ahead of her peers in her abilities and developm ent. S he saw no issues w ith Sum ie’s p a r e n t i n g . H ouston said that she h ad not had m uch i nteraction with Marcus, so she could not com m ent on his parenting skills. ¶17. M a r c u s’s p arents both testif ied. His m other, M elinda, testif ied that Sum ie did n o t properly supervise Kristen. She s aid that once Sum i e gave K r i sten a q-tip, w hich Kristen could h ave s tuck in her ear. M elinda also f ound Kristen p lay ing with plastic shopping bags

once. Melinda testif

ied that Sum ie did not have Kristen o n a “set schedule” and that Kristen of ten did not g o to sleep until 11 p.m . Melinda also said that Sum ie did not buy c lothes and shoes that f

it Kristen. S he said K

risten of ten had b listers f

r om w e a ring shoes that were too

6sm all. According to Melinda, Marcus had a l ot of interaction with Kristen, but S um ie paid

m ore attention to her com p uter than her child. ¶18. Marcus’s f

a t h e r, Mark, testif

ied sim i larly

. He said Sum ie was on her com puter too

m uch and som e tim es neglected ch a n g i n g K r i sten’s diapers. Mark testif i ed that his son alway s m a de tim e to play with Kristen. Mark a lso noted that Kristen had blisters on her f eet f rom her shoes. He also e xpressed concern a bout Kristen’s language s kills, and he believed that the divorce had harm ed her em otionally

. ¶19. Following the trial, the c h a n c e l l or entered a f i nal judgm ent on custody and related issues. Af

ter considering the Albright f actors, see Albright v. Albright , 4 3 7 S o . 2d 1003, 1005 ( Miss. 1983), the chancellor f ound that it was in Kri s t e n ’ s b e s t i n terest f or Sum i e to have phy sical custody , f

or Marcus to have reasonable visitation, a nd f or the p arties to share legal custody

. The chancellor noted that Marcus had concerns that Sum ie would m ove back

to J apan, but the chancellor stated that she c ould not “anticipate som ething that has not or

m ay never occur,” and she would not “place any restrictions on [ S um i e’s] travel at this j u n c t ure.” T he chancellor specif ically declined to require Marcus t o turn over K r i s t e n ’ s passport to Sum ie. The chancellor reasoned that Marcus had joint legal custody and, thus, had a s m uch right to have the p a s s p o r t a s S um ie. The chancellor stated that she was not preventing Sum ie f

rom requesting the passport f r om Marcus. Nor did she intend to prevent Sum ie f rom trav e l i n g t o J a p an with Kristen. Rather, t he c hancellor urged the parties to resolve such issues “ in a m a ture m anner that p uts t heir daughter’s interest above their own.” The chancellor c oncluded that if disputes over travel ever arose, the court could address t hem

7based on “pro per pleadings.” However, the issue was not y e t “ripe f or consideration.” Marcus f iled a tim ely

notice of appeal f rom the f i nal judgm e nt. ¶20. O n a p p e a l , Marcus challenges the chancellor’s Albright analy sis and decision o n phy sical custody

. He also argues that the chancellor f ailed to adequately address his request f or declaratory relief barring Sum ie f rom m oving to Japan with K risten. Finally , he argues that the chancellor i m

properly f

o l l o w e d an unapproved local rule providing f or tem porary custody m atters to be decided on af f idavits. W e f

ind no reversible error and af f irm

. ANALYSIS I. Albright

Analy s is ¶21. “A chancellor’s custody decision will be reversed o nly if it was m anif estly wrong o r clearly erroneous, o r i f the chancellor applied an erroneous legal standard.” Smith v. Smith , 97 So. 3d 43, 46 (¶7) (Miss

. 2012). “[ T]his Court c annot reweigh the evidence and m ust d e f e r to t he chancellor’s f

indings of the f

acts, so long as they a re supported by s u bstantial evidence.” Hall v. Hall , 134 So. 3 d 822, 828 (¶21) (Miss. Ct. App. 2014). Thus, on appeal in a child custody case, t h e i s s u e is not whether this Court “agrees with the chancellor’s ruling,” b ut only whether “the chancellor’s ruling is supported by c r e d i b l e evidence.” Hammers v. Hammers , 890 So. 2d 944, 950 (¶14) (Miss. Ct. App. 2004). ¶22. In any child custody c ase, the “polestar c o n s i d e r a t i o n . . . is the best interest and

w e lf are of the child.” Albright , 437 S o. 2d a t 1005. The chancellor m ust cons i d e r t h e f ollowing f

actors: (1) age, health, and sex of the child; (2) which parent had “continuity of

care prior to the separation”; (3) parenting skills; (4) willingness and c a p a city to provide

8prim ary c hild care; (5) both parents’ e m ploy m ent responsibilities; (6) phy sical and m ental health and age of the p a rents; (7) em otional ties between parent and child; ( 8) m oral f itness; (9) “the hom e, school and com m unity r ecords of the c h ild”; (10) t he child’s p ref erence, if the child is at least twelve y ears old; (11) the stability o f the hom e environm ent a nd em ploy m ent of each parent; and (12) any “other f a ctors relevant t o t he p arent-child relationship” or the child’s best interest. Id. ¶23. The chancellor m

u st address each f

actor that is r elevant to the case, but she does not have t o d ecide that each f actor f avors one parent o r the other. Harden v. Scarborough , 240 So. 3d 1246, 1251 (¶11) ( Miss. Ct. App. 2018) (citing P owell v. A y ars , 792 So. 2d 240, 244 (¶10) (Miss. 2001); W

eeks v. W eeks , 989 So. 2d 408, 4 11 (¶12) (Miss. Ct. App. 2 008)). “Nor does Albright require t hat ‘custody m u s t b e a w a r ded to t he parent who ‘wins’ the m ost f actors.’” Id. (quoting Blakely v. Blakely , 88 So. 3d 798, 803 (¶17) (Miss. Ct. App. 2012)). Rather, the ch a n c e l l o r i s s im p ly required to address and consider t he relevant f actors in determ ining what custody a rrangem ent would be i n the child’s best i nterest. “W e r eview the chancellor’s application o f the f actors f or m anif e st error, g iving def

erence to the w eight he assigned e ach f

actor.” Id. ( quoting Smith v. S mith , 206 So. 3d 502, 5 13 (¶24) (Miss. 2016)). ¶24. Marcus argues that the chancellor erred i n h e r A l b r i g h t a naly sis by

disregarding evidence of his good parenting skills and by rely ing on p hotos as proof of Sum i e’s parenting skills. Specif

ically , M a r c u s challenges the chancellor’s f indings as to continuity of care, parenting skills, willingness and capacity to provide child care, stability of t he hom e environm e nt, and “other relevant f actors.” The chancellor f ound that the continuity of care

9and parenting skills f actors f avored Sum ie, while the hom e, school, and com m unity f actor f avored Marcus. All other relevant f actors w ere f

ound t o be neutral. W e address Marcus’s challenges to specif

ic f actors in turn. ¶25. Continuity of care . The chancellor f ound that Sum ie h ad “alway s” b een K r i s ten’s prim ary caregiver, “[ b]oth prior to and af ter the

. . . [ t]em

porary [ o]rder.” Marcus argues that the chancellor should have given greater weight to the tim e prior to the parties’ separation. However, all witnesses testif ied that Sum i e watched Kristen throughout the day , c a r e d f or Kristen’s daily n eeds, a nd took Kristen to doctor’s appointm e n ts and play d ates. T here was also testim ony

that, prior to the separation, Marcus’s role was decidedly m o re lim ited than Sum ie’s. Though som e o f Marcus’s witnesses alleged t hat Sum i e w as i nattentive, there was

no serious dispute that she w as the p r im ary caregiver. T he totality of the evidence—both pre- and post-separation—supports the chancellor’s f inding on this f

a c tor. ¶26. Parenting skills

. The chancellor f o und that t here was litt l e - t o - n o t e stim ony about Marcus’s parenting skills but that t here w as “reliable and c onsistent” te s tim o ny about Sum ie’s skills. T he chancellor also noted that there were p hotographs “regarding the sam e” testim o ny about Sum ie’s skills. The chancellor acknowledge d that Marcus’s parents expressed various concerns related to Sum ie’s parenting skills and a l leged i nattentiveness. However, the chancellor f o u n d t h at Marcus’s parents’ t estim ony did not establish any im m edia t e t h r e a t o f harm to Kristen or cause the court any concern. Moreover, the chancellor “did not f

ind [ Marcus’s parents’] testim ony p articularly helpf ul, in that b oth were clearly biased toward [ Marcus].”

10¶27. On appeal, Marcus a lleges that the c hancellor erred by rely ing on photos as evidence

of parenting s kills and b y disregarding his parents’ concerns. However, there i s a mp le support in the record f

or the chancellor’s f

indings. S everal witne sses testif ied that Sum ie

was a g o od, a ttentive m other. And, again, there was testim ony that Marcus’s role as a caregiver was f

ar m ore lim ited. The c hancellor d id m ention p hotos that s howed Sum ie and
Kr i s t en happily spending tim e together, but t here is nothing to suggest that she gave the photos excessive weight. Finally , the chancellor did not disregard the testim ony of Marcus

or h is parents. Rather, the chancellor sim ply f ound o ther testim ony m ore c redible. In cases such a s this, it is the role and duty of the chancellor to m ake such credibility determ inations and to weigh and assess conf licting e vidence. Mayton v. Oliver , 247 So. 3d 312, 322 (¶33) (Miss. Ct. App. 2017). ¶28. Wi l l i n g n e s s a n d c a p a c i t y t o p r o v i d

e pri m a r y c h i l d c a r e a n d e m

p l o y m e n t responsibilities

. The chancellor f o und t hat these f

actors were neutral. She pointed out that Marcus has changed his w ork schedule to allow him to help c are f or Kristen during the day

. Marcus argues that the chancellor erred by f inding these f

actors n e u t r a l

. H e s a y s that the

c apacity to provide childcare necessarily involves capacity to provide f or t he chil d

. T h u s , h e a r g u e s , his greater present earning capacity should outweigh Sum ie’s present ability t o

s p e n d mo r e tim e with Kristen. Marcus argues that the chancellor d id not p roperly weigh Sum ie’s present unem

ploy m ent. ¶29. Sum ie is cu r r e n t l y a s t a y - a t

- hom e m other w ho is looking f or em ploy m ent. The chancellor did not give this f act excessive weight either pro or con. Rather, the chancellor

11f

ound that the parties’ respective capacit i e s t o p r o v i d e childcare were d if f erent but essentially neutral. W e c annot s ay that t his is error, as it i s supported by substantial evidence. Cf. Vassar v
. Vassar , 228 So. 3d 367, 375-76 ( ¶¶29, 32) (Miss. Ct. App. 2017) (recognizing that

one parent m ay h ave a greater c apacity to provide childcare because o f u nem ploy m ent, even if that “m a y

seem to unf a irly penalize [ the other parent] f or holding down a job”). ¶30. Stability of the home environment. The c h a n c ellor f o und that neither p arent had a f i x e d, perm a nent h o m e b ecause S um ie said she m ay h ave to m o ve if she cannot f ind a job and because Marcus lived with his p a rents at t he tim e of t rial. Marcus say s that the chancellor should have considered his extended f am ily in the area and his parents’ ability to be present in Kristen’s lif

e. He say s that this would have led t he chancellor to f ind this f actor in his f a v or. However, the chancellor did consider Marcus’s close, extended f am ily and the benef it of that f

am ily f or Kristen. She just considered i t u nder the “ h o me , school, and

com m unity record” f

actor. The chancellor was aware of the f acts and gave them weight as she saw f it. ¶31. Other factors r e l e v a n t to t he parent-child relationship

. The chancellor stated that there were no other f

actors to consider, “with the exception of the p ossibility tha t [ S u mi e]

m ay return t o her hom e country o f Japan.” She then awarded phy sica l c u stody to Sum ie. Marcus argues t h a t t h i s “ p assing” ref erence to his f

e a rs that his daughter will b e taken to Japan is error because the chan cellor f ailed to f

u lly consider the alleged threat of international child abduction. ¶32. Though the chancellor did not discuss in depth the possibility of Sum i e returning to

12Japan during he r d i scussion of the Albright f actors, she did address i t later in her ruling.
R e g ardless, there was no e vidence that Kristen was in im m ediate danger of intern a t i o n a l abduction. Sum ie testif

ied that she hoped to get a job in the United S tates. She adm itted that she would return to Japan if she had no other options, but she t estif ied t hat if that occurred, she wanted K

risten to have lengthy visits with Marcus twice a y ear. T here w a s nothing f rom which the chancellor s hould have c oncluded that Kristen was in danger of abduction, and we decline to f

ind error sim

ply because she did not a d dress Marcus’s concerns t o his s atisf action. ¶33. To conclude, we f i n d t h a t t h e c h a n c e l l o r ’ s Albright analy s i s was supported by substantial evidence. W e theref ore af f irm her award of

phy s ical custody

to Sum ie. II. Declaratory Relief ¶34. In his answ e r t o S u m i e ’ s c o mp l a i n t f or divorce, Marcus s ought declaratory and injunctive relief to prevent Sum ie f rom leaving Mississippi with Kristen. He a lso asked the

court t o notif

y the FBI, the Japanese e mb a s s y and consulate, and the Hague Convention Division of the Japanese Ministry of Foreign Af

f airs, am ong other entities, of the risk that Kristen would be abducted. Marcus com pl a i n s that the chancellor did not a d dress this request f or declaratory relief in t he f inal judgm ent. He alleges t hat “nothing in t he Court’s order” prevents Sum ie f

rom absconding w ith K r i sten, and that t he c ourt “abdicated its responsibility t o assert i ts continuing jurisdiction” over Kristen’s custody

. He argues that the chancellor both denied his requested relief and f a i l e d to address i t. Marcus i s incorrect in both regards. ¶35. First, the chancellor d id address Marcus’s concern that Sum i e would m ove to Japan

13and take K

risten with her, but s he declined to “anticipate som e thing that has not or m ay never occur.” S he declined to put any restrictions on Sum ie’s right t o travel and declined to prohibit Sum i e f

rom taking K

risten abroad. She did, however, give Marcus the r ight to keep Kristen ’ s p a s s p o r t i n h is possession until such tim e a s Sum ie needed it. There was no evidence presented at trial f rom which the chancellor s hould have f ound that Sum ie intended

to a bduct Kristen. T he chancellor’s rem edy f or Marcus’s concerns—allowing him to retain Kristen’s passport—was reasonable and equitable under the circum stances. ¶36. S e c ond, in the f

inal judgm ent, t he chancellor r uled that “[ a]ny a nd all o t h e r r e l i e f request e d b y t h e parties i s hereby denied[ .]” Thus, contrary t o Marcus’s claim that the chancellor did not address his request f or injunctive relief

, she denied the sam e. ¶37. Finally , a ny outstanding issue that Marcus s o u g h t t o h a v e the chancellor address is waived on appeal. The parties consented to an irreconcilable dif f erences divorce and to the specif ic issues that the court would decide. M arcu s ’ s r e q u e st f or injunctive relief was not listed in their consent. Mississippi Cod e Annotated s ubsection 93-5-2(3) (Rev. 2013)
p r o v ides t hat the issues to b e decided by the chancellor in an irreconcilable dif f e r e n c e s divorce m

ust b e “ s p e c i f

i cally set f

orth.” Thus, a court “ m ay d ecide c ontested issues i n a divorce based on irreconcilable dif f erences,” but t he court “is l i mi t e d t o the resolution of those issues specif

ically identif

ied and personally agreed to in writing by the parties.” Myrick

v. Myrick , 186 So. 3d 429, 433 (¶17) (Miss. Ct. App. 2 016). Marcus argues that the statute does n ot require the p arties to list issues other than child custody , m aintenance, or property division. However, t his C ourt recently h eld that a party w aived pending contem pt issues by

14f

ailing to specif

y them in h er consent to a n irreconcilable dif f erences divorce. Leblanc v. Leblanc , N o. 2017-CA-00600-COA, 2018 W L 5262584, a t *12 (¶70) (Miss. Ct. App. Oct. 23, 2018). T h e r e f

o re, we also hold that Marcus waived any outstanding request f or injunctive relief

. III. Alleged Unapproved Local Rule ¶38. As discussed above, a f t e r S u mi e h ad f

iled f or divorce a nd custody and Marcus had counterclaim ed f

or the sam e , they subm itted a n agreed order setting a hearing o n tem porary

m atters, including custody and support. The ord e r s t a t e d t h at the hearing would be “by af f idavit(s)” and t hat all af

f idavits should be subm itted by 5:00 p.m . on the hearing date. In other words, the order c ontem p lated that the court would decide tem porary custody based on af f idavits and without hearing any live witnesses. Based on t he a f f idavits, the court awarded Sum ie tem

porary phy sical custody of Kristen. She awarded Sum i e and Marcus tem porary joint l egal custody , and she a warded Marcus tem porary visitation every other weekend and f or three weeks during the sum m er. ¶39. On appeal, Marcus argues that the Fourte e n t h C h ancery C ourt D istrict enf orces a local rule requiring tem

porary custody hearings to be decided by af f idavits only . He argues that the rule is invalid because t he Mississippi Suprem e Court has not approved it. See M.R.C.P. 83(b) (“All . . . local rules . . . adopted bef ore being ef

f ective m u st be f iled in the Suprem e Court of Mississippi f

or approval.”). Marcus f

urther argues that the chancellor’s tem porary rulin g i mp a c t e d her f

inal ruling, and y et because there was no r eal hearing on tem porary custody , the chancellor’s tem porary ruling “cannot be reviewed.”

15¶40. W e f ind no reversible error f

or three reaso n s , t w o o f which are related. First, the record contains only an agreed order. The rec o r d d oes not show that there actually is an “unapproved local rule.” The chancery court’s w ebsite does provide a f ill- i n - t h e - blank

tem plate f or an order setting a hearing on tem porary m atters by

af f idavit. 1 However, there is nothing to show that this tem p late equates t o a court rule that such hearings m ust be de c i d e d o n a f

f idavits a lone. Nor does the tem plate establish t hat the chancellors of the district will not hold a live hearing or consider live testim ony upon request. ¶41. Second and related, Marcus never raised this issue in the trial c ourt. There is nothing to show that he ever asked f or a live h earing or to present live testim ony . Because Marcus did not raise this issue, we have no way of knowing whether t here is an u napproved rule or whether the chancellor would h ave heard and considered l ive testim ony . Theref o r e , the record is inadequate to review M a r c u s ’ s claim , and the issue is waived and procedurally barred on appeal. S

ee, e.g. , Adams v. Rice , 196 So. 3d 1086, 1 090 (¶13) (Miss. Ct. App. 2016) (“A party

is not allowed to raise an issue f or the f irst tim e on appeal.”). ¶42. W e note that the Suprem e Court addressed a s im ilar issue in Fredericks v. Malouf , 82 So. 3d 579, 582 (¶¶15-16) (Miss. 2012). In that case, the def e ndants argued that they were prevented f

rom obtaining a hearing on t heir m otion to transf er venue b ecause of an unapproved local rule that stated that hearings on m otions were not “autom atically granted” and that the parties wo u l d “ b e n o tif ied by the court” if the court determ ined that a hearing

was necessary . Id. at (¶15). The S uprem e Court concluded that the l ocal rule was “in

1 See http://www.14thchancery m s.com /resources.php (last visited May 8, 2019). 16derogation of Mississippi R ule of Civil Procedure 8 3, because [ it had] never been subm itted

to [ the Suprem e] Court f

or ap p r o v a l

. ” Id. at ( ¶16). Nevertheless, the Suprem e C ourt also “em phasize[ d] that the trial court’s rule did not prohibit t he [ d]ef endants f rom requesting a h earing; there [ was] no e vidence that the trial court would not [ h ave] consider[ ed] such a request; and no o rder exist[ ed] deny ing such.” Id. In other words, the unapproved local rule did not excuse the def

endants’ f a ilure t o at l east request a hearing o n their m otion. Likewise, in this case, we conclude that the alleged existence of a local rule does not excuse Marcus’s f ailure to request a live hearing on tem porary custody

. ¶43. A third reason that Marcus’s argum ent is without m erit is that he f ails to establish any
p r ejudice. “A tem

porary custody order is j ust that, tem porary ; it does n ot chang e t h e underly ing b urden of proof

. ” Neely v
. We l c h , 1 9 4 So. 3d 149, 160 (¶33) (Miss. Ct. App. 2015) (quoting Baumgart v. Baumgart , 944 S.W .2d 572, 573 (Mo. Ct. App. 1 997) (brackets

om itted ) )

. T h e chancellor m ust conduct an Albright a n aly sis and decide t he issue of
perm anent custody d e novo r egardless of the tem porary order. See id. Marcus overstates the signif icance of the tem

porary c ustody order as it r elates to the chancellor’s f inal ruling and Albright analy sis. The chancellor’s f inal judgm ent f

ound that the continuity of care f actor “strongly f

avor[ ed]” Sum ie because Sum ie h ad “ always ” b een Kristen’s prim ary caregiver, “[ b]oth prior to and af

t er the issuance of [ the] [ t]em porary [ o ]rder.” (Em

phasis added). The chancellor’s analy sis was b a sed on the totality of t he evidence and only brief ly m entioned the t em porary custody period. In addition, f or the reasons d iscussed a bove, there is substantial evidence to support the chancellor’s perm anent custody decision.

17CONCLUSION

¶44. The c hancellor’s custody decision was supported by substantial e vidence, a n d Marcus identif ies no other reversible error on appeal. ¶45. AFFIRMED. BARNES, C .J., CARLTON, P.J., GREENLEE, T INDELL, M c D ONALD, LAWRENCE, McCARTY AND C. WILSON, JJ., CO N C U R . WESTBROOKS, J., CONCURS IN PART AND IN THE RESULT W ITHOUT SEPARATE WRITTEN OPINION.

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