                           IN THE SUPREME COURT OF MISSISSIPPI
                                    NO. 97-CA-00506-SCT
WAYNE JOHN PATOUT
v.
LAURA J. PATOUT

DATE OF JUDGMENT:                               03/17/1997
TRIAL JUDGE:                                    HON. WILLIAM H. MYERS
COURT FROM WHICH APPEALED:                      JACKSON COUNTY CHANCERY COURT
ATTORNEY FOR APPELLANT:                         DONALD P. SIGALAS
ATTORNEY FOR APPELLEE:                          WILLIAM T. REED
NATURE OF THE CASE:                             CIVIL - CUSTODY
DISPOSITION:                                    VACATED AND REMANDED - 2/25/99
MOTION FOR REHEARING FILED:
MANDATE ISSUED:                                 4/12/99




     BEFORE PITTMAN, P.J., SMITH AND MILLS, JJ.


     MILLS, JUSTICE, FOR THE COURT:

                                    STATEMENT OF THE CASE

¶1. Laura J. Patout filed her complaint for divorce on July 11, 1994. An order of temporary relief was
entered by Chancellor Kenneth B. Robertson on August 25, 1994. Chancellor Robertson erroneously
believed he was entering a final order. Therefore, he entered a corrected opinion and removed himself from
the proceedings since he felt the parties might assume he was predisposed to make the same award he had
erroneously entered before.

¶2. Chancellor William H. Meyers entered a final judgment on August 29, 1996, awarding a divorce to
Wayne Patout based on his proof of Laura Patout's adultery. Custody of the two sons, Joshua and Jason,
was awarded to Ms. Patout, and the chancellor distributed the marital property. Wayne Patout filed a
Motion to Alter or Amend or for a New Trial on September 9, 1996. A property settlement agreement
was signed March 14, 1997, and the chancellor entered an Amended Judgment to conform with the
property settlement agreement. Aggrieved by the Chancery Court's judgment, Mr. Patout appeals assigning
the following issues as error:

     I. WHETHER CUSTODY OF THE TWO MINOR CHILDREN, JOSHUA AND JASON
     PATOUT, SHOULD HAVE BEEN AWARDED TO LAURA PATOUT.

     II. WHETHER THE COURT ERRED IN FAILING TO MAKE FINDINGS OF FACT
      AND CONCLUSION OF LAW.

                                     STATEMENT OF THE FACTS

¶3. The parties were married for more than ten stormy years in which divorce proceedings were
commenced several times with Ms. Patout accusing Mr. Patout of cruel and inhuman treatment and Mr.
Patout claiming Ms. Patout committed adultery. Mr. Patout, at age 48, had been married three times
before. Ms. Patout, at age 27, came into the marriage with one daughter, Melody. By age 14, Melody had
been in counseling and treatment at least twice. The marriage produced two sons: Joshua Wayne Patout
born July 29, 1986 , and Jason Paul Patout, born March 11, 1988. The sons are the center of this custody
dispute.

¶4. Since the final separation, the boys have lived with their mother the majority of the time although she
admits leaving them with various friends and babysitters much of the time due to her work schedule. There
are disputes over who has taken the boys to church, whether the people who have cared for the boys were
fit, and what emotional trauma has been visited upon the boys during the marriage and separation.
However, the report cards of the boys indicate they are intelligent and fit in well in school.

      I. WHETHER CUSTODY OF THE TWO MINOR CHILDREN, JOSHUA AND JASON
      PATOUT, SHOULD HAVE BEEN AWARDED TO LAURA PATOUT.

¶5. We have clearly defined the standard we use to review child custody issues. Review is "'quite limited in
that the chancellor must be manifestly wrong, clearly erroneous, or apply an erroneous legal standard in
order for this [C]ourt to reverse.'" M.C.M.J. v. C.E.J., 715 So. 2d 774, 776 (Miss. 1998)(quoting
Wright v. Stanley, 700 So. 2d 274, 280 (Miss. 1997)).

¶6. The Albright factors, now the standard for awarding child custody, were set out by the Court as
follows:

      Age should carry no greater weight than other factors to be considered, such as: health, and sex of the
      child; a determination of the parent that has had the continuity of care prior to the separation; which
      has the best parenting skills and which has the willingness and capacity to provide primary child care;
      the employment of the parent and responsibilities of that employment; physical and mental health and
      age of the parents; emotional ties of parent and child; moral fitness of parents; the home, school, and
      community record of the child; the preference of the child at the age sufficient to express a preference
      by law; stability of home environment and employment of each parent, and other factors relevant to
      the parent-child relationship.

Albright v. Albright, 437 So. 2d 1003, 1005 (Miss. 1983).

¶7. Mr. Patout questions the chancellor's ruling based on the following factors which he believes weigh in his
favor: (1) health of the child, (2)continuity of care prior to separation, (3) parenting skills, (4) physical and
mental age and health of the parents, (5) moral fitness of the parents, and (6) stability of the home
environment of each parent.

A. Health of the Child

¶8. Mr. Patout contends that Ms. Patout's recurring smoking problem contributes to Joshua's upper
respiratory problems and intermittent asthma. Ms. Patout contends she has quit smoking for good this time.

B. Continuity of Care Prior to Separation

¶9. Mr. Patout stated he was the primary care giver for the children for the six months prior to the
separation since Ms. Patout was working various shifts. Ms. Patout admits her irregular hours require that
she leave the children with babysitters often. However, she contends she is the primary care giver for the
children and has been since their birth.

C. Parenting Skills

¶10. Mr. Patout and Ms. Patout each introduced witnesses who testified about their parenting skills.
Testimony elicited by Mr. Patout included allegations that Ms. Patout left the children with men who were
drunk, was a bad housekeeper, and failed to properly feed her children. Ms. Patout produced testimony
from friends and an employee of the Department of Human Services that her housekeeping was adequate,
that circumstances demanded she leave the children with an acquaintance once until a babysitter arrived,
and that she always made sure the children were ready for school.

D. Physical and Mental Age and Health of the Parents

¶11. Mr. Patout claims that since Ms. Patout was taking medication for depression, she was unable to
adequately care for the children. He also notes that she has had bladder surgery, knee problems, and a
hysterectomy. Mr. Patout has a heart condition which keeps him from full time work and he testified that he
has only "25% heart function."

E. Moral Fitness of the Parents

¶12. Mr. Patout contends that Ms. Patout's adultery should weigh heavily against her when awarding
custody. He also suggests she has been involved with various men, smoked marijuana, and stole items of
marital property from him against court order. Ms. Patout contends she has not been involved with various
men and has not smoked marijuana since before her sons were born. She claims Mr. Patout has lied to the
court about his income.

F. Stability of the Home Environment of Each Parent

¶13. Mr. Patout contends Ms. Patout's erratic work schedule and her daughter Melody's problems create
an unstable home environment. Melody has been in counseling and has a tendency to sneak out of the
house at night while Ms. Patout is at work. She wrecked the family car on one of her outings when she was
only 13 years old.

¶14. A review of the record leaves underlying facts in dispute and credibility resolutions to be made. It
permits more than one finding with a basis in evidence. Therefore, we must address the chancellor's duty to
record findings of fact and conclusions of law before we reach the custody issue.

     II. WHETHER THE COURT ERRED IN FAILING TO MAKE FINDINGS OF FACT
     AND CONCLUSIONS OF LAW.

¶15. The Mississippi Rule of Civil Procedure provides a method whereby any party may request the
specific basis on which a chancellor made a ruling. Rule 52 (a) provides:
      Effect. In all actions tried upon the facts without a jury the court may, and shall upon the request of
      any party to the suit or when required by these rules, find the facts specially and state separately its
      conclusions of law thereon and judgment shall be entered accordingly.

M.R.C.P. 52(a). In addition, Rule 4.01 of the Uniform Chancery Court Rules titled "Findings by the
Court" provides:

      In all actions where it is required or requested, pursuant to M.R.C.P. 52, the Chancellor shall find the
      facts specially and state separately his conclusions of law thereon. The request must be made either in
      writing, filed among the papers in the action, or dictated to the Court Reporter for record and called
      to the attention of the Chancellor.

U.C.C.R. 4.01.

¶16. In Lowery v. Lowery, 657 So. 2d 817 (Miss. 1995), we looked to Rule 52(a) of the Federal Rules
of Civil Procedure for guidance. Id. at 819. Federal case law indicates it is proper for the appellate court to
vacate and remand a judgment when the lower court has failed to make findings of fact and conclusions of
law as requested. Id. (citing Liddell v. Board of Educ., 20 F.3d 324 (8th Cir. 1994); In re Incident
Aboard D/B Ocean King, 758 F.2d 1063, 1072 (5th Cir. 1985)). However, we also noted in Lowery
that appellate courts may decide such custody issues without further findings when possible. Lowery, 657
So. 2d at 819 (citing Matter of Holloway, 955 F. 2d 1008, 1015 (5th Cir. 1992)). In Holloway, the
court found it was able to decide on appeal since the underlying facts were undisputed, there were no
credibility resolutions to be made, and there was no view of the record that would permit a different finding
than the one the lower court reached.

¶17. In the instant case, Mr. Patout requested specific findings of fact and conclusions of law in his Motion
to Alter or Amend or for a New Trial. When the chancellor denied this motion, he failed to make the
findings Mr. Patout requested.

¶18. Ms. Patout suggests the reason that chancellor failed to make these findings was that he was misled by
counsel for Mr. Patout. After the Motion to Alter or Amend or for a New Trial was filed, a property
settlement agreement was entered by the parties. Counsel for Mr. Patout then sent a letter to the chancellor
requesting the following:

      It appears that the parties have now entered into an agreement on all issues except custody.

      I would request that an amended Judgment be entered by the Court taking into consideration the
      issues amicably resolved in the attached agreement and Mr. Patout's position as set forth in our
      arguments and testimony taken pursuant to out Motion to Alter or Amend.

In his oral argument on the motion, counsel for Mr. Patout did not mention his request for findings of fact
and conclusions of law. Ms. Patout suggests the failure of counsel to point out the remaining request for
findings misled the chancellor and suggests chancellors should not be required to "read the pleadings with a
microscope."

¶19. In as much as the Chancellor was required by our rules to make such findings and conclusions, he was
in error. It does not appear that the chancellor in this case deliberately refused to make the findings
requested by Mr. Patout. In fact, it seems the mounting paperwork and counsel for Mr. Patout's admitted
general motion without further request for such findings led the chancellor to overlook this obligation. As
Mr. Patout notes and federal case law instructs, Rule 52 is not jurisdictional. We can decide a case where
further findings of fact are unnecessary.

¶20. However, this case appears distinct from the Holloway case we referred to in Lowrey. The
underlying facts are disputed, there are credibility resolutions to be made, and a review of the record would
permit a finding for either party. Without specific findings of fact and conclusions of law by the Chancellor,
we are unable to review properly the child custody decision. Therefore, the chancellor's amended custody
judgment is vacated, this case is remanded to the Jackson County Chancery Court for entry of specific
findings of fact and conclusions of law pursuant to M.R.C.P. 52(a).

¶21. VACATED AND REMANDED.

PRATHER, C.J., SULLIVAN AND PITTMAN, P.JJ., BANKS, ROBERTS, SMITH AND
WALLER, JJ., CONCUR. McRAE, J., CONCURS IN RESULT ONLY.
