           IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                                NO. 2014-CA-01781-COA

ARTHUR RANDALLSON AND APRIL                                            APPELLANTS
RANDALLSON

v.

RANDALL GREEN AND LAURA GREEN                                            APPELLEES

DATE OF JUDGMENT:                         11/12/2014
TRIAL JUDGE:                              HON. VICKI B. DANIELS
COURT FROM WHICH APPEALED:                DESOTO COUNTY CHANCERY COURT
ATTORNEY FOR APPELLANTS:                  JERRY WESLEY HISAW
ATTORNEYS FOR APPELLEES:                  JASON D. HERRING
                                          MICHAEL SPENCER CHAPMAN
NATURE OF THE CASE:                       CIVIL - CUSTODY
TRIAL COURT DISPOSITION:                  AWARDED CUSTODY TO
                                          GRANDPARENTS AND AWARDED
                                          VISITATION TO NATURAL PARENTS
DISPOSITION:                              AFFIRMED - 06/21/2016
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       BEFORE LEE, C.J., CARLTON AND FAIR, JJ.

       LEE, C.J., FOR THE COURT:

¶1.    Randall and Laura Green were awarded full legal and physical custody of their

paternal granddaughter, Aeva Randallson.          Aeva’s parents—Arthur1 and April

Randallson—claim the chancellor erred in (1) relying on requests for admissions to

determine custody, (2) awarding custody to Randall and Laura, and (3) awarding supervised

discretionary visitation.



       1
           Arthur’s birth name was Jason Green.
                            FACTS AND PROCEDURAL HISTORY

¶2.       Arthur and April were married on June 24, 2004. And on July 14, 2004, April gave

birth to their daughter, Aeva.2

¶3.       In 2012, according to Arthur’s father—Randall—Arthur was considering a divorce

from April and moved into an apartment paid for by Randall and Arthur’s mother—Laura.3

According to Randall, Arthur stated that April was physically and verbally abusive. For

example, April threw a Lysol can at Arthur’s head; April told Aeva, “I hope your father dies

. . .”; and April threatened suicide to get her way. According to Randall, Arthur also stated

that his and April’s house was a “hoarding house,” and “the dogs and cats would just do their

business wherever they were[, which] was left . . . for days without being cleaned up.”

Randall and Laura rescued one of the dogs, which had an abscessed jaw and tapeworms due

to a flea infestation. Finally, according to Randall, Arthur stated that April was addicted to

painkillers, slipped unprescribed pills to Arthur, and administered ZzzQuil or NyQuil to Aeva

to induce sleep. For reasons unknown to Randall, Arthur eventually moved back into the

house with April and Aeva.4

¶4.       On March 4, 2013, Randall and Laura filed a complaint in the Chancery Court of




          2
              DNA testing has determined that Arthur is Aeva’s biological father.
          3
              At trial, Arthur stated that he moved into the apartment to work on his master’s
thesis.
          4
              Laura stated her testimony would be substantially similar to Randall’s.

                                                  2
DeSoto County, Mississippi, for custody of Aeva.5 The summonses were issued on March

19, 2013. And on March 20, 2013, Randall and Laura gave notice of service of their

discovery requests. Fifty-one days later, on May 9, 2013, Arthur and April filed their answer

to the complaint as well as their responses to the discovery requests.6

¶5.    In June 2014, the chancellor entered an emergency order due to Arthur and April’s

failure to cooperate with the guardian ad litem (GAL). After the initial visit, the GAL

removed Aeva from the house on an emergency temporary basis because the house was

unsuitable.7 Aeva was allowed to return three weeks later even though the condition of the

house was not completely rectified. After several visits, the GAL concluded that removing

Aeva from the custody of her parents would not be in Aeva’s best interest. However, the

GAL reserved the right to alter or amend her recommendations based on the evidence and

testimony at trial.

¶6.    In July 2014, the chancellor entered an order granting Randall and Laura two

visitation dates. These visits were the first time Aeva had interacted with Randall and Laura

since she was an infant.



       5
        The complaint was amended on July 17, 2014, to include domestic-violence
provisions.
       6
          Arthur and April each filed a notice of the filing of their responses to the discovery
requests. Arthur’s was dated April 30, 2013; April’s was not dated. The affidavits attached
to the responses were dated May 7, 2013. However, counsel for April and Arthur mailed
a letter dated May 9, 2013, to counsel for Randall and Laura enclosing the following: (1) an
answer to the complaint, and (2) answers to interrogatories, requests for production, and
requests for admissions.
       7
           The GAL did not take photographs during the initial visit.

                                               3
¶7.    At the beginning of trial, Christopher Gray testified about his marriage to April from

June 2000 until February 2004. According to Gray, April was “anything from extremely

pleasant, kind, loving to the exact and polar opposite. So extreme anger [and] violence . . .

.” He stated that April was physically and verbally abusive—April hit him, cut him with a

knife, and threatened suicide. Gray also stated that April would cut herself whenever she was

not getting her way. Gray testified that April was violent toward animals and that animal

urine and feces were inside the house. Finally, Gray testified that he had to recover mentally

and emotionally from his marriage to April.

¶8.    Arthur and April denied any domestic violence during their marriage. April stated that

she had never thrown anything at Arthur, but probably threw something at her ex-husband,

Gray. She also stated that there was no “knife incident” with Arthur, but there was an

accident with Gray.

¶9.    When asked about an instance where April apparently banged her head against the

wall, fainted, and went to the hospital, Arthur stated the “banging of the head on the wall

was just sort of like a casual frustration thing.” Arthur testified that April threatened suicide

approximately six times over ten years, but “it was [never] a legitimate threat.” Arthur also

testified that on at least one occasion, April told Aeva she wished Arthur was dead, but “it

was never intended literally.” April stated that she probably used foul language in front of

Aeva. Arthur repeatedly stated that Randall and Laura used foul language in front of him

when he was a child.

¶10.   April acknowledged the deplorable condition of their house, but stated it was not



                                               4
entirely her fault—Arthur was also to blame. Arthur and April admitted to animal urine and

feces, animal vomit, fleas, rats, boxes, and filth. April claimed the house would not get that

bad again. However, April’s mother—Bethany Blanton—testified that she had previously

helped clean Arthur and April’s house, and the house would always return to the way it was.

¶11.   Blanton also testified that April was depressed. Dr. Lee Van Duren, a psychiatrist,

reviewed April’s medical and pharmacy records, and stated that the combination, amount,

and frequency of prescribed medications that April was taking would render a person

physiologically dependant and impaired, or “generally not functional.” Specifically, they

would negatively impact memory, cognitive ability, and ability to experience emotion. Dr.

Van Duren stated that April’s actions—described by Gray—were consistent with someone

on those particular medications.8

¶12.   Although Arthur worked full-time, he did not have fixed hours and earned

approximately $20,000 per year.        April worked four days per month and earned

approximately $500 per month. Arthur testified that he and April were “very deep in debt.”

As a result, Aeva did not have medical insurance, and neither Arthur nor April had applied

for Medicaid even though it “may have been a potential option.” Furthermore, Aeva had

never been to an eye doctor—despite an abnormal screening at school—or dentist.

¶13.   Both Arthur and April acknowledged that from 2012 to 2013, Aeva had thirty-eight

tardies and twelve absences in school. And from 2013 to 2014, Aeva had seventeen tardies.



       8
         Dr. Van Duren referred specifically to April’s use of Hydrocodone, Soma, and
Xanax. However, April testified that, in the past few years, she had also been prescribed
Ideral, Imitrex, Lorazepam, Phenergan, Paxil, and Treximet.

                                              5
Interestingly, Arthur testified he was named “parent of the year.”

¶14.   Toward the end of trial, Arthur testified that he believed his mother, Laura Green, had

“tendencies towards pedophilia.” However, Arthur’s brother—Karl Green—denied the

allegations against his mother. Furthermore, Karl said he trusted both of his parents with his

two children.

¶15.   At the end of the trial, the GAL acknowledged that her initial opinion was that a

change in custody was not in Aeva’s best interest. She testified that Aeva was a normal,

honor-roll student who appeared clean and healthy. She also testified that Aeva loved her

parents, and it would be emotionally traumatic for her to be taken away from them.

However, the GAL stated that Arthur and April may be unfit parents based on the evidence

presented at trial. The GAL expressed significant concerns about Arthur and April’s

maintenance of the house, April’s depression, April’s prescription-drug use, Arthur and

April’s financial ability, Aeva’s lack of medical insurance, Aeva’s lack of dental and vision

care, Arthur’s unsubstantiated claims about Laura, and the requests for admissions.

¶16.   Ultimately, the chancellor found Arthur and April were unfit parents. The chancellor

also found April was a perpetrator of domestic violence, and after conducting an Albright9

analysis, determined it was in Aeva’s best interest to give full legal and physical custody to

Randall and Laura, with supervised discretionary visitation. Arthur and April appeal.

                                STANDARD OF REVIEW

¶17.   “Findings of fact made by a chancellor may not be set aside or disturbed upon appeal



       9
           Albright v. Albright, 437 So. 2d 1003 (Miss. 1983).

                                              6
if they are supported by substantial, credible evidence.” Strait v. Lorenz, 155 So. 3d 197, 203

(¶19) (Miss. Ct. App. 2015) (quoting A.M.L. v. J.W.L., 98 So. 3d 1001, 1013 (¶23) (Miss.

2012)). “This Court will not disturb a chancellor’s findings unless the chancellor abused his

discretion, was manifestly wrong or clearly erroneous, or applied an erroneous legal

standard.” Id. (citing Sanderson v. Sanderson, 824 So. 2d 623, 625 (¶8) (Miss. 2002)).

“Legal questions are reviewed de novo.” Id. (citing Russell v. Performance Toyota Inc., 826

So. 2d 719, 721 (¶5) (Miss. 2002)).

                                       DISCUSSION

       I.     Requests for Admissions

¶18.   In their first issue, Arthur and April claim the chancellor erred in relying on their

deemed admissions to determine custody.

¶19.   This Court has strictly enforced the application of Mississippi Rule of Civil Procedure

36 according to its terms. Boyd v. Boyd, 83 So. 3d 409, 416 (¶19) (Miss. Ct. App. 2011).

“The rule states that a party has thirty days in which to submit a response to a request for

admission, or within forty-five days after service of the summons upon a defendant.” Id.

(citing M.R.C.P. 36(a)). “Matters will be deemed admitted after this time period, unless the

court allows for either a shorter or longer period of time in which to answer.” Id.

       However, the trial court, on motion, has the discretion to “permit withdrawal
       or amendment [of a matter admitted] when the presentation of the merits of the
       action will be subserved thereby and the party who obtained the admission
       fails to satisfy the court that withdrawal or amendment will prejudice him in
       maintaining his action or defense on the merits.”

Id. (quoting M.R.C.P. 36(b)).



                                              7
¶20.   The record is clear that Arthur and April filed untimely responses to Randall and

Laura’s requests for admissions. See id. at (¶21). They failed to request a withdrawal or

amendment of the admissions prior to trial. See id. Thus, the operation of the rules deems

the matters admitted. Id. (citing M.R.C.P. 36(a)). “Matters admitted by default under Rule

36(a) are established unless and until the trial court allows amendment or withdrawal by

motion under Rule 36(b).” Id. (quoting DeBlanc v. Stancil, 814 So. 2d 796, 799 (¶17) (Miss.

2002)).

¶21.   However, in Gilcrease v. Gilcrease, 918 So. 2d 854 (Miss. Ct. App. 2005), we held

that “child custody is a judicial determination, and is never to be regarded as a merely

evidentiary matter.” Boyd, 83 So. 3d at 417 (¶23). Thus, basing a determination of child

custody solely on a Rule 36 admission is improper. Id.

¶22.   In her bench ruling, the chancellor considered Arthur and April’s admissions. But

then the chancellor stated:

       [T]his [c]ourt is a court of equity and the attorneys for the plaintiffs know that.
       They did not . . . rest their case [after the admissions were deemed admitted
       and] ask me to find by clear and convincing evidence that the parents [were]
       unfit . . . . They went on to present evidence to this [c]ourt, which gave the
       [c]ourt some . . . very real concerns.

After discussing the evidence, the chancellor stated that she “considered the totality of the

[r]equest for [a]dmissions, the guardian [a]d litem report, [and] the testimony . . . from all of

the witnesses” and found “that the [natural-]parent presumption [had] been overcome.”

¶23.   Upon a thorough review of the record, we do not find that the chancellor abused her

discretion. See id. at 418 (¶28). It is clear that the admissions were not the sole basis for the



                                               8
custody decision. See id. The chancellor heard all of the testimony at trial and used the

GAL’s report as part of her consideration, in addition to the admissions by Arthur and April.

See id. Therefore, this issue is without merit.

       II.    Custody

¶24.   In their second issue, Arthur and April claim the chancellor erred in awarding third-

party custody to Randall and Laura.

¶25.   “In custody battles between a natural parent and a third party, it is presumed that it is

in the child’s best interest to remain with his or her natural parent.” Smith v. Smith, 97 So.

3d 43, 46 (¶8) (Miss. 2012) (citing Carter v. Taylor, 611 So. 2d 874, 876 (Miss. 1992)). To

be awarded custody, therefore, the third party must first clearly rebut the natural-parent

presumption or preference; if it is successfully rebutted, the chancellor must then examine

the Albright factors and determine that third-party custody serves the best interest of the

child.” Id. (citing Logan v. Logan, 730 So. 2d 1124, 1127 (Miss. 1998)).

              A.      Natural-Parent Presumption

¶26.   “The natural-parent presumption can be rebutted by a clear showing that (1) the parent

has abandoned the child; (2) the parent has deserted the child; (3) the parent’s conduct is so

immoral as to be detrimental to the child; or (4) the parent is unfit, mentally or otherwise, to

have custody.” Id. (citing Carter, 611 So. 2d at 876).

¶27.   In her written opinion, the chancellor provided thorough findings of fact in regard to

her determination that Arthur and April were unfit parents. The chancellor had concerns

with Arthur and April’s attempts to thwart the GAL; the condition of their house; their ability



                                               9
to maintain the condition of the house; April’s prescription-drug use; threats and cursing; the

lack of, and indifference toward, obtaining medical insurance for Aeva; the lack of, and

indifference toward, providing dental and vision care for Aeva; and the number of tardies and

absences from school.

¶28.   Furthermore, the chancellor believed Arthur’s statements to his parents to be

true—even though Arthur denied making those statements. See Bratcher v. Surrette, 848 So.

2d 893, 896 (¶16) (Miss. Ct. App. 2003) (“The chancellor, by [her] presence in the

courtroom, is best equipped to listen to the witnesses, observe their demeanor, and determine

the credibility of the witnesses and what weight ought to be ascribed to the evidence given

by those witnesses.”).

¶29.   Based upon our review of the record and our limited standard of review for factual

findings of chancellors, we find there is substantial evidence to support the chancellor’s

finding by clear and convincing evidence that Arthur and April were unfit parents.

              B.     Mississippi Code Annotated Section 93-5-24(9) (Rev. 2013)

¶30.   The chancellor then determined that April was a perpetrator of domestic violence

under Mississippi Code Annotated section 93-5-24(9). Section 93-5-24(9)(a)(i) provides:

       In every proceeding where the custody of a child is in dispute, there shall be
       a rebuttable presumption that it is detrimental to the child and not in the best
       interest of the child to be placed in sole custody, joint legal custody or joint
       physical custody of a parent who has a history of perpetrating family violence.
       The court may find a history of perpetrating family violence if the court finds,
       by a preponderance of the evidence, one (1) incident of family violence that
       has resulted in serious bodily injury to, or a pattern of family violence against,
       the party making the allegation or a family household member of either party.
       The court shall make written findings to document how and why the
       presumption was or was not triggered.


                                              10
Furthermore, section 93-5-24(9)(b)(i) provides: “If custody is awarded to a suitable third

person, it shall not be until the natural grandparents of the child have been excluded and such

person shall not allow access to a violent parent except as ordered by the court.”

¶31.   According to Randall, Arthur said that April threw a Lysol can at his head, which

drew blood. He also stated that it was April’s “missile of choice,” indicating that it happened

often.10 As stated, even though Arthur denied these statements at trial, the chancellor stated

that she “[did] not believe [his] testimony.” “When conflicting testimony on the same issue

is presented, the chancellor sitting as trier of fact must determine which version [she] finds

more credible.” Bratcher, 848 So. 2d at 896 (¶16).

¶32.   We cannot find that the chancellor abused her discretion in finding April was a

perpetrator of domestic violence. Thus, the chancellor correctly determined it would not be

in Aeva’s best interest to be in April or Arthur’s custody. See JP v. SVB, 987 So. 2d 975, 982

(¶17) (Miss. 2008) (finding the mother was not a suitable custodial parent because she

resided in the house with the perpetrator of domestic violence and “rationalize[d his] violent

behavior.”)

              C.     Albright Analysis

¶33.   Before making her final ruling, the chancellor, “out of an abundance of caution,”

conducted an Albright analysis.

¶34.   The Albright factors are as follows: (1) age, health, and sex of the child; (2) a

determination of the parent who had the continuity of care prior to the separation; (3) which

       10
       According to Randall, Arthur also mentioned a knife incident as well as an incident
where April slapped him.

                                              11
parent has the best parenting skills and which parent has the willingness and capacity to

provide primary child care; (4) the employment of the parent and responsibilities of that

employment; (5) the physical and mental health and age of the parents; (6) the emotional ties

of the parent and child; (7) the moral fitness of the parents; (8) the home, school, and

community record of the child; (9) the preference of the child at the age sufficient to express

a preference by law; (10) the stability of the home environment and employment of each

parent; and (11) other factors relevant to the parent-child relationship.11 Albright, 437 So.

2d at 1005.

¶35.   According to the chancellor, the following factors favored awarding custody of Aeva

to Randall and Laura: age, health, and sex of the child; parenting skills and willingness and

capacity to provide; employment of the parent and responsibilities of that employment;12

physical and mental health of the parent; moral fitness of the parent; home, school, and

community record of the child; and stability of the home environment and employment. The

chancellor found the following factors favored Arthur and April: continuity of care, the age

of the parent, and emotional ties. And the chancellor found the following factor did not

apply: preference of the child. Ultimately, the chancellor found that the best interest of Aeva

would be served by granting custody to Randall and Laura.

¶36.   “In order to determine whether or not the chancellor was manifestly wrong, clearly



       11
          To be clear, we note that “custodian(s)” should be substituted in place of
“parent(s)” when applying the Albright factors to the facts of this particular case.
       12
       The chancellor did not specifically state that this factor favored Randall and Laura;
however, it may be inferred from the chancellor’s comments.

                                              12
erroneous or abused [her] discretion in applying the Albright factors, we review the evidence

and testimony presented at trial under each factor to ensure [her] ruling was supported by the

record.” Hall v. Hall, 134 So. 3d 822, 828 (¶21) (Miss. Ct. App. 2014) (quoting Hollon v.

Hollon, 784 So. 2d 943, 947 (¶13) (Miss. 2001)). “Further, this Court cannot reweigh the

evidence and must defer to the chancellor’s findings of the facts, so long as they are

supported by substantial evidence.” Id. (citing Carter v. Carter, 735 So. 2d 1109, 1114 (¶18)

(Miss. Ct. App. 1999)). Upon thorough review of the record, we cannot say the chancellor’s

decision to award custody to Randall and Laura was manifestly wrong or clearly erroneous.

This issue is without merit.

         III.   Visitation

¶37.     In their final issue, Arthur and April claim the chancellor erred in awarding only

supervised discretionary visitation.

¶38.     “In granting or denying visitation, a chancellor’s primary concern must be the best

interest of the child, while still considering ‘the rights of the non-custodial parent[s],

recognizing the need to maintain a healthy, loving relationship between the non-custodial

parent[s] and [their] child.’” Saint v. Quick, 24 So. 3d 395, 403-04 (¶30) (Miss. Ct. App.

2009) (quoting Harrington v. Harrington, 648 So. 2d 543, 545 (Miss. 1994)). “Furthermore,

‘there must be evidence presented that a particular restriction on visitation is necessary to

avoid harm to the child before a chancellor may properly impose the restriction.’” Id. at 404

(¶30).

¶39.     Evidence was presented regarding April’s prescription-drug use, her threats of suicide,



                                               13
and domestic violence. Evidence was also presented regarding the deplorable condition of

Arthur and April’s house—animal urine and feces, animal vomit, fleas, rats, boxes,

filth—and their inability to maintain the condition of their house. In light of this evidence,

we cannot say the chancellor abused her discretion in restricting visitation. This issue is

without merit.

¶40. THE JUDGMENT OF THE CHANCERY COURT OF DESOTO COUNTY IS
AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE
APPELLANTS.

    IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, CARLTON, FAIR, JAMES,
WILSON AND GREENLEE, JJ., CONCUR.




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