           IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                                NO. 2016-CA-00496-COA

SARAH MCKENZIE RAYNER                                                      APPELLANT

v.

CHANCE D. SIMS                                                               APPELLEE

DATE OF JUDGMENT:                          01/08/2016
TRIAL JUDGE:                               HON. FRANKLIN C. MCKENZIE JR.
COURT FROM WHICH APPEALED:                 JONES COUNTY CHANCERY COURT,
                                           SECOND JUDICIAL DISTRICT
ATTORNEY FOR APPELLANT:                    S. CHRISTOPHER FARRIS
ATTORNEY FOR APPELLEE:                     NANCY E. STEEN
NATURE OF THE CASE:                        CIVIL - CUSTODY
DISPOSITION:                               AFFIRMED: 10/17/2017
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       BEFORE GRIFFIS, P.J., WILSON AND WESTBROOKS, JJ.

       GRIFFIS, P.J., FOR THE COURT:

¶1.    Sarah McKenzie Rayner (“Mackie”) appeals the chancellor’s award of joint physical

custody, his consideration of the Albright factors, and his computation of child support. We

find no error and affirm.

                         FACTS AND PROCEDURAL HISTORY

¶2.    Mackie and Chance Sims are the natural parents of Frances, a female child born in

November 2013.1 Mackie and Chance dated, but never married. They briefly lived together

following the birth of Frances.2

       1
           For privacy purposes, we have changed the minor child’s name.
       2
           Mackie and Chance lived together from March 2014 to June 26, 2014.
¶3.    Chance filed a “complaint for adjudication of paternity and for custody and other

matters,” wherein he requested custody of Frances or, alternatively, that the parties have joint

custody. Mackie filed an answer and requested physical custody of Frances. Mackie further

requested that Chance have “restricted” visitation rights, limited to “the daytime only and

supervised by a suitable person.”

¶4.    On May 8, 2015, the chancellor entered a temporary order, which provided Chance

with scheduled visitation, including overnight visitation, with Frances.           The parties

subsequently engaged in discovery.

¶5.    Following a trial on November 17, 2015, the chancellor awarded the parties joint legal

and “shared” physical custody of Frances. Specifically, the chancellor ordered that Chance

would have physical custody of Frances three days/nights per week, and Mackie would have

physical custody of Frances four days/nights per week. Additionally, the chancellor ordered

the parties to pay child support “based upon 14 percent of each party’s adjusted-gross

income” and “in proportion to their periods of shared custody and their incomes.”

¶6.    Mackie filed a motion to reconsider, which the chancellor denied. Mackie now

appeals and argues: (1) the chancellor erroneously granted the parties joint physical custody

of Frances, (2) the chancellor erroneously failed to consider all of the Albright factors and

ignored the fact that the factors favored her, and (3) the chancellor erroneously computed the

child-support obligation of each party.

                                 STANDARD OF REVIEW

¶7.    A chancellor’s factual findings “will not be disturbed unless [he] was manifestly



                                               2
wrong, clearly erroneous, or applied an erroneous legal standard.” Blakely v. Blakely, 88 So.

3d 798, 801 (¶3) (Miss. Ct. App. 2012). Questions of law, however, are reviewed de novo.

Id. “As long as substantial evidence supports the chancellor’s findings, [we are] without

authority to disturb them, even if [we] would have found otherwise as an original matter.”

Id. “Additionally, if the chancellor has made no specific findings, we generally proceed on

the assumption that [he] resolved all such fact issues in favor of the appellee.” Id.

                                          ANALYSIS

       I.      Joint Physical Custody

¶8.    Mackie first argues the chancellor erroneously granted joint physical custody of

Frances since the record shows she and Chance cannot cooperatively share custody.3 Joint

custody may be awarded in the discretion of the court, upon application of one or both

parents. Miss. Code Ann. § 93-5-24(3) (Rev. 2013). Here, Chance requested joint custody

of Frances. “‘[J]oint physical custody’ means that each of the parents shall have significant

periods of physical custody.” Miss. Code Ann. § 93-5-24(5)(c). “Joint physical custody shall

be shared by the parents in such a way so as to assure a child of frequent and continuing

contact with both parents.” Id. “[U]nless the parents are capable of sharing joint custody

cooperatively, it is incumbent upon a chancellor not to award joint custody.” Crider v.

Crider, 904 So. 2d 142, 147 (¶13) (Miss. 2005). However, “[t]his is for the chancellor to

determine as he or she is in the best position to evaluate the credibility, sincerity, capabilities



       3
        Although the chancellor did not specify “joint physical custody,” the record shows
he granted “shared physical custody” of Frances, not custody to Mackie and visitation with
Chance.

                                                3
and intentions of the parties.” Id.

¶9.    Here, although Mackie opposed Chance’s request for joint physical custody, the

record shows both Mackie and Chance are capable of sharing joint custody cooperatively.

Although the parties do not always agree, they are willing and able to communicate with each

other regarding Frances. Additionally, the parties successfully worked together to implement

the visitation schedule ordered by the chancellor. Moreover, both parties testified that they

wanted Frances to be close to the other.

¶10.   Mackie asserts that the “very nature of the pleadings filed by both indicates that [the

parties] cannot cooperatively have shared custody of [Frances].” Thus, according to Mackie,

mere allegations of bad acts or conduct by one parent against the other would automatically

prohibit the consideration or award of joint custody, regardless of the evidence at trial. We

disagree and find Mackie’s assertion would abrogate the chancellor’s role and authority.

¶11.   Despite Mackie’s criticism of Chance and her opinion that she is capable of providing

a more stable environment for Frances, the record does not reflect any inability to

cooperatively share custody of Frances. Accordingly, we find the chancellor’s award of joint

physical custody is supported by substantial evidence in the record and was not manifestly

wrong or clearly erroneous.

       II.    Albright Factors

¶12.   Mackie next argues the chancellor failed to consider all of the Albright factors when

making his custody determination.          “As with all child-custody cases, ‘the polestar

consideration is the best interest and welfare of the child.’” Webb v. Webb, 78 So. 3d 933,



                                               4
936 (¶8) (Miss. Ct. App. 2012) (quoting Albright v. Albright, 437 So. 2d 1003, 1005 (Miss.

1983)). In Albright, the Mississippi Supreme Court outlined several factors to be considered

when determining which parent should be granted custody. Albright, 437 So. 2d at 1005.

These factors include: (1) the age, health, and sex of the child; (2) the continuity of care prior

to separation; (3) the parenting skills of each parent, (4) the willingness and capacity to

provide primary child care; (5) the employment and employment responsibilities of each

parent; (6) the physical and mental health and the age of the parents; (7) the emotional ties

between the parent and child; (8) the moral fitness of the parents; (9) the home, school, and

community record of the child; (10) the preference of a child twelve years of age or older;

(11) the stability of the home environment; and (12) other relevant factors in the parent-child

relationship. In re Dissolution of Edwards, 189 So. 3d 1284, 1286 (¶7) (Miss. Ct. App.

2016) (citing Albright, 437 So. 2d at 1005). The chancellor is only required to address those

Albright factors that are applicable to the case before him. Id. at (¶8).

¶13.   Here, the record shows the chancellor considered the Albright factors and specifically

addressed seven of the twelve factors. The five factors not specifically noted by the

chancellor include the willingness and capacity to provide primary care, the moral fitness of

the parents, the home, school, and community record of the child, the preference of the child,

and the stability of the home environment.

¶14.   The home, school, and community record of the child, as well as the preference of the

child, are not applicable in this case, as the child was only two years old at the time of trial.4

       4
        Although the record indicates Frances is in daycare, there was no testimony
regarding her experience at daycare and no records were provided from the facility.

                                                5
Although the chancellor did not specifically note the remaining three factors, significant

evidence was adduced by each party relevant to each factor and the determination of custody.

We discuss the testimony regarding these factors.

              1.     The willingness and capacity to provide primary care

¶15.   Both Mackie and Chance testified regarding the care each provides to the child when

in his or her custody. Chance testified that when he and Mackie lived together, he would

feed, rock, and bathe Frances. Chance specifically stated he wanted equal time with his

daughter and emphasized that there was nothing Mackie could do for Frances that he could

not.

¶16.   Additionally, both Mackie and Chance are employed and capable of providing care

for Frances. Mackie testified that shortly after Frances’s birth, Chance volunteered to put her

on his insurance through his employment, and to pay all medical and pharmacy bills.

              2.     The moral fitness of the parents

¶17.   As the chancellor noted, Mackie testified regarding “all the bad things about

[Chance].” Specifically, Mackie testified that Chance had a violent nature, was a convicted

felon, and had drug and mental health issues. However, the testimony revealed otherwise.

¶18.   When asked about Chance’s violent nature, Mackie was able to recall only two

incidences since the birth of Frances. One incident was denied by Chance and was

admittedly not raised by Mackie at any time prior to trial. The other incident involved

confusion over whether Mackie’s then boyfriend, who Chance had not yet met, was allowed

around Frances. Mackie’s mother testified about an incident with Chance at her house.



                                              6
However, she admitted that following this incident, Mackie voluntarily moved in with

Chance.

¶19.    Additionally, although the record shows Chance was previously convicted of arson,

the conviction occurred in 2007, six years prior to the birth of Frances. The record further

shows Chance tested positive in 2012 for marijuana. However, there was no evidence of any

additional failed drug tests. Moreover, Chance stated he is subject to random drug tests at

work.

¶20.    With regard to Mackie’s claim of mental health issues, the chancellor found nothing

to validate this claim. Chance testified that he was previously prescribed medication for

bipolar disorder in 2012-2013, but he was never clinically diagnosed with the disorder.

Chance explained that he does not have mental health issues, but he saw a physician in order

to help deal with the relationship issues he was having with Mackie. Chance further testified

that he had never hit or pushed Mackie.

¶21.    When asked about her complaints against Chance, Mackie simply stated she did not

believe Chance spent quality time with Frances “based on what [she] [saw] when [she] lived

with him.” However, the record shows Mackie and Chance only lived together for a few

months. Mackie admitted that she had no complaints about the way Chance has taken care

of Frances since the temporary visitation order was entered.

              3.     The stability of the home environment

¶22.    The testimony shows both Mackie and Chance have a stable home. Mackie currently

lives with her father; Chance lives in a house down the street from his mother. Both live in



                                             7
Jones County, Mississippi. Although Chance has to be at work at 7:00 a.m., his mother is

able to take Frances to daycare in the morning, and Chance picks her up in the afternoon

when he gets off work at 3:30 p.m.

¶23.   Although the chancellor did not conduct a detailed analysis of each Albright factor,

the record shows he considered the factors and addressed those factors he determined applied

in this case. “All the factors are important, but the chancellor has the ultimate discretion to

weigh the evidence the way he sees fit.” Edwards, 189 So. 3d at 1286 (¶8) (citing Johnson

v. Gray, 859 So. 2d 1006, 1013-14 (¶36) (Miss. 2003)).

¶24.   In light of the amount of evidence adduced at trial relevant to the Albright factors,

including the three factors the chancellor did not specifically note, and the fact that each

parent was shown to be a good and fit parent, we find the chancellor’s failure to specifically

address each Albright factor was not reversible error. See Huseth v. Huseth, 135 So. 3d 846,

858-59 (¶¶36-39) (Miss. 2014).

¶25.   Mackie further argues the chancellor erred in his consideration of the Albright factors.

Specifically, Mackie claims the chancellor ignored the fact that the Albright factors favored

her. However, as the trial transcript clearly shows, the chancellor noted that the factors

“slightly favor[ed] Mackie.” Nevertheless, the chancellor found that it was in the child’s best

interest to have a relationship with both parents.

¶26.   A chancellor “need not decide that every factor favors one parent over the other.”

Edwards, 189 So. 3d at 1286 (¶8). As properly noted by the chancellor, Albright is not “a

mathematical formula where custody must be awarded to the parent who ‘wins’ the most



                                              8
factors.” Id. The record shows both Mackie and Chance are good parents. While Mackie

expressed concerns over Chance, those concerns were more directed toward her relationship

with Chance, and not Chance’s relationship with his daughter. “[T]he relationship of parent

and child is for the benefit of the child, not the parent.” Id. at (¶6). Although Mackie

believes she is in a better position to provide a more stable environment for Frances, there

is nothing in the record to indicate Chance is unable to do the same.

¶27.   Overall, we find the chancellor’s findings were neither manifestly wrong nor clearly

erroneous, and are supported by substantial evidence in the record.

       III.   Child Support

¶28.   Mackie last argues the chancellor erroneously computed child support. Mackie asserts

that “the [c]hancellor acknowledged at the temporary hearing that [the Department of Human

Services (DHS)] had already established [Chance’s] child-support obligation.”5 However,

the record indicates Chance was never ordered to pay child support by DHS. Indeed, both

Mackie and Chance acknowledged that no DHS order was ever entered.

¶29.   Mackie further claims the chancellor “engaged in his own computation of the child

support obligation that is not supported by or authorized by statute.” We disagree. The

chancellor ordered that Chance would have physical custody three days per week, and

Mackie would have physical custody four days per week. The chancellor found that child

support for the minor child would be based “upon 14 percent of each party’s adjusted-gross

income” and that each party “shall pay child support in proportion to their periods of shared

       5
        The temporary order incorrectly stated that an order had been entered by DHS for
child support. This mistake was clarified at trial.

                                             9
custody and their incomes.”6 We find statutory support for the chancellor’s decision.

¶30.   Mississippi Code Annotated section 43-19-101(1) (Rev. 2015) provides that 14% of

a party’s adjusted gross income should be awarded for the support of one child. Pursuant to

section 43-19-101(2), the percentage outlined in subsection (1) applies unless the court

“makes a written finding or specific finding on the record that the application of the

guidelines would be unjust or inappropriate in a particular case as determined under the

criteria specified in section 43-19-103.” Under Mississippi Code Annotated section 43-19-

103(g) (Rev. 2015), the “particular shared parental arrangement” is a factor the chancellor

may consider in his adjustment of the statutory guidelines established by section 43-19-

101(1). Miss. Code Ann. § 43-19-103(g).

¶31.   Here, the record shows that the chancellor found the statutory percentage, as outlined

in section 43-19-101(1), should be adjusted based on the parties’ joint custody arrangement,

“in proportion to their periods of shared custody.” The chancellor further ordered that

Chance shall continue to provide insurance for Frances. Such decision is supported and

authorized by statute. Accordingly, we find no error and affirm.

¶32.   AFFIRMED.

    LEE, C.J., IRVING, P.J., BARNES, CARLTON, FAIR, WILSON AND
GREENLEE, JJ., CONCUR. WESTBROOKS, J., CONCURS IN PART AND IN THE
RESULT WITHOUT SEPARATE WRITTEN OPINION. TINDELL, J., NOT
PARTICIPATING.




       6
        The chancellor stated he would leave it up to the attorneys to “do the math.”
Counsel subsequently submitted an exhibit, which outlined the child-support calculation.

                                             10
