         IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                                NO. 2014-CA-01295-COA


STEVE ALTOM AND SHEREE ALTOM                                               APPELLANTS

v.

HARLAND JONES                                                                  APPELLEE

DATE OF JUDGMENT:                          08/28/2014
TRIAL JUDGE:                               HON. JOHN ANDREW HATCHER
COURT FROM WHICH APPEALED:                 LEE COUNTY CHANCERY COURT
ATTORNEY FOR APPELLANTS:                   RICHARD SHANE MCLAUGHLIN
ATTORNEY FOR APPELLEE:                     WALTER ALAN DAVIS
NATURE OF THE CASE:                        CIVIL - CUSTODY
TRIAL COURT DISPOSITION:                   GRANTED CUSTODY OF THE MINOR
                                           CHILD TO THE APPELLEE
DISPOSITION:                               AFFIRMED – 04/26/2016
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       BEFORE IRVING, P.J., BARNES AND ISHEE, JJ.

       IRVING, P.J., FOR THE COURT:

¶1.    Steve and Sheree Altom appeal from the judgment of the Chancery Court of Lee

County that granted custody of their minor grandchild, Hayden Jones, to his father, Harland

Jones (Jones). On appeal, the Altoms argue: (1) the chancellor erred in reinstating the

natural-parent presumption, (2) the record establishes that the natural-parent presumption was

rebutted due to the evidence presented, and (3) the temporary orders issued by the chancery

court acquired sufficient incidents of permanency.

¶2.    Finding no error, we affirm the chancery court’s judgment.

                                          FACTS
¶3.    On September 29, 2007, Jones and Jessica Altom were married. One child, Hayden,

was born to the marriage. Jones and Jessica divorced on January 6, 2009. As a result, the

chancery court awarded physical and legal custody of Hayden to Jessica and granted Jones

visitation rights. Jessica was living with her parents, the Altoms, when the divorce was

granted. However, Hayden had been living with the Altoms since he was eight or nine days

old. In November 2010, Jessica invited Jones to come to the Altoms’ home in hopes of

resolving a dispute. However, when Jones arrived, an additional dispute arose between Jones

and Steve. After that incident, the Altoms and Jessica prevented Jones from exercising

visitation with Hayden. As a result, Jones retained counsel and, on April 11, 2011, filed a

petition for contempt with the chancery court. On May 17, 2011, the chancery court issued

an order that modified Jones’s visitation and permitted visitation to take place outside of the

Altoms’ home.

¶4.    On April 21, 2011, despite the fact that Jones was already paying Jessica child support

as part of the judgment of divorce, the Mississippi Department of Human Services (DHS)

instituted a separate action against Jones. As a result of that proceeding, DHS obtained a

separate order of support against Jones, including an arrearage award in the amount of

$1,584, which was withheld by the IRS from Jones’s tax refund. After receiving notice of

the child-support action, Jones made payments to DHS from June 2012 through August 2013.

Ultimately, the IRS refunded the $1,584 to Jones.

¶5.    On November 25, 2012, Jessica died in an automobile accident. Following Jessica’s

death, the Altoms were granted temporary custody of Hayden by an order of the Lee County



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Youth Court. Apparently, neither the chancery court nor Jones was provided any prior notice

of the youth court’s action. Jones filed a petition for custody of Hayden in which he asked

the court to order the Altoms to turn over custody of Hayden to him. After an initial hearing

on the matter, held on December 18, 2012, the chancery court granted the Altoms temporary

custody of Hayden, with Jones having visitation rights consistent with those granted in the

judgment of divorce, and set the matter for a final hearing on February 19, 2013. However,

the hearing was not held on February 19 because Jones had failed to provide discovery that

had been requested by the Altoms. Rather, the case was continued until June 11, 12, and 13,

2013. In the meantime, since Jones also had failed a court-ordered drug test in December

2012, the court had ordered Jones to continue submitting to reasonable drug testing.

¶6.    The chancery court heard the matter as previously scheduled and, on June 19, 2013,

issued an opinion and judgment, in which it found that the Altoms had rebutted the natural-

parent presumption possessed by Jones due to his having deserted Hayden for the first two

and a half years of Hayden’s life. But the court also found that since Jessica’s death, Jones

“ha[d] made a concerted effort to have a relationship with his son, which involved custody.”

Nevertheless, the court applied the Albright1 factors and determined that it was in Hayden’s

best interests for the Altoms to retain custody of him. So the court granted temporary

physical custody of Hayden to the Altoms, with visitation to Jones, and joint legal custody

of Hayden to Jones and the Altoms. The court also ordered Jones to pay retroactive child

support to the Altoms in the amount of $2,556.34, with the payment to be made before



       1
           Albright v. Albright, 437 So. 2d 1003 (Miss. 1983).

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December 31, 2013, and, thereafter, monthly payments in the amount of $366.62.

Apparently the retroactive child-support payment represented child support for the period of

time following Jessica’s death to the June 2013 hearing date. Finally, in the opinion and

judgment, the chancery court set the matter for review one year later on June 17, 2014, and

stated: “The terms of this Order, Judgment and Decree are temporary in nature and not res

judicata.”

¶7.    On June 17, 2014, the chancery court reconvened for the review hearing. It heard

testimony from the Altoms and Jones regarding how life had been for them and Hayden

during the previous year. On June 20, 2014, the court issued an order, granting Jones

additional visitation time with his son and keeping all prior orders in full force and effect,

including the order giving the Altoms temporary custody of Hayden, and set an additional

hearing for July 30, 2014.

¶8.    At the July 30, 2014 hearing, the chancery court issued a bench ruling followed by an

August 7, 2014 order in which it granted temporary custody of Hayden to Jones, with

visitation rights to the Altoms. Contrary to its earlier finding in one of the temporary orders,

the court found that “the natural[-]parent presumption [was] strong[,]. . . extremely strong

in this case[,] . . . [and that] the natural[-]parent presumption [was] not only in effect but

[had] been reinforced by the rehabilitative efforts that . . . Jones [had] made in his life.”

Following the ruling, the Altoms filed a motion to amend the August 7, 2014 order with an

alternative request that the order be certified as a final judgment under Rule 54(b) of the

Mississippi Rules of Civil Procedure. The court denied the motion to amend but granted the



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alternative request to certify the order as a final judgment. This appeal followed.

                                       DISCUSSION

¶9.    “The standard of review in child custody cases is limited. Reversal occurs only if a

chancellor is manifestly wrong or applied an erroneous legal standard.” Floyd v. Floyd, 949

So. 2d 26, 28 (¶5) (Miss. 2007). In McDonald v. McDonald, 39 So. 3d 868, 881 (¶42) (Miss.

2010) (internal citation and quotation marks omitted) (quoting Johnson v. Gray, 859 So. 2d

1006, 1013-14 (¶36) (Miss. 2003)), the Mississippi Supreme Court stated:

       [An appellate c]ourt grants deference to factual findings in custody decisions,
       as chancellors have the ultimate discretion to weigh evidence the way they see
       fit. The credibility of the witnesses and the weight of their testimony, as well
       as the interpretation of evidence are primarily for the chancellor as the trier of
       facts.

       I.      Natural-Parent Presumption Reinstated

¶10.   On appeal, the Altoms argue that the chancery court erred in failing to recognize that

the natural-parent presumption had previously been rebutted. The Altoms further argue that

there was no way that the rebuttal of the natural-parent presumption could have been

“undone” by Jones’s good behavior. In response, Jones argues that because the chancery

court indicated that the June 19, 2013 order was, in fact, a temporary order, the court was not

bound by its prior temporary findings. Jones also argues that the chancery court was well

within its discretion to reevaluate the question of desertion and reinstate the natural-parent

presumption.

¶11.   It is well established that in custody proceedings between a natural parent and a third

party, such as the Altoms, the law presumes that the child’s best interests are served by



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allowing him to remain in his natural parent’s custody. Carter v. Taylor, 611 So. 2d 874, 876

(Miss. 1992). However, the third party may rebut the natural-parent presumption by

showing: (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. Vaughn v. Davis, 36 So. 3d 1261, 1264-65 (¶12)

(Miss. 2010); Miss. Code Ann. § 93-5-24(1)(e)(i)-(ii) (Rev. 2013). “If the court finds one

of these factors has been proven, then the presumption vanishes, and the court must go

further to determine custody based on the best interests of the child through an on-the-record

analysis of the Albright factors.” Pendleton v. Leverock, 23 So. 3d 424, 431 (¶24) (Miss.

2009) (citing In re Custody of M.A.G., 859 So. 2d 1001, 1004 (¶6) (Miss. 2003)).

¶12.    Here, the chancery court found, in its temporary order dated June 19, 2013, that

       [for] the first two and [one] half (2 ½) years of Hayden Jones’[s] life, there
       was clear and convincing desertion of said child by [Jones’s] avoidance of
       [his] duties and obligations for the child, leaving same nearly totally in the
       hands of the [Altoms], though with some small monetary contribution and
       some small sporadic contact by [Jones], thus rebutting the natural[-]parent
       presumption by clear and convincing evidence.

At that point, the chancery court conducted an Albright analysis and determined that it was

in Hayden’s best interests for the Altoms to retain temporary custody of Hayden. However,

as revealed in the facts portion of this opinion, the chancery court explicitly stated that the

order was “temporary in nature and not res judicata,” apparently meaning that none of the

court’s findings were final. Consistent with this view is the fact that the court also set a date

for further review one year later. As stated, in the court’s bench ruling after the review

hearing, the chancellor determined that because Jones had made sufficient strides in

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rehabilitating himself, he was entitled to the benefit of the natural-parent presumption and

that the presumption was strong. The court placed a great amount of weight on the newly

presented evidence by Jones, which showed that he had continued to work the same job, that

he had moved to a management position at his job, and that he had not tested positive for

drug use while under the chancery court’s supervision.

¶13.      Our review of the record indicates that the chancery court never intended for the

“temporary” orders granting custody to the Altoms to serve as final judgments in the matter.

The very fact that the court set a follow-up hearing serves as confirmation that nothing was

final regarding custody of Hayden. Therefore, we agree with Jones and find that the

chancery court was well within its discretion in finding that Jones was entitled to the natural-

parent presumption due to the progress that Jones has made in rehabilitating himself as a

parent.

          II.   Natural-Parent Presumption Rebutted

¶14.      The Altoms also argue that even with giving Jones the benefit of the natural-parent

presumption, they still rebutted the presumption and are entitled to custody of Hayden. In

support of this argument, the Altoms point to the other findings that the chancery court made

in discussing the Albright factors in the June 19, 2013 opinion and judgment. More

specifically, the Altoms point to the chancery court’s finding that Jones had abandoned

Hayden for the first two and one-half years of his life, to Jones’s prior positive drug tests, and

to the chancery court’s finding that Jones had been involved, on one occasion, in the

manufacture and trafficking of marijuana. The Altoms further argue that drug abuse by a



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natural parent constitutes immoral conduct, which may be used to rebut the natural-parent

presumption. The Altoms assert that, regardless of Jones’s improvements over the one-year

span, he is bound to the court’s prior factual findings. Based on this assertion, the Altoms

conclude that the chancellor’s application of the Albright factors was, in fact, warranted and

that the factors still weigh heavily in their favor.

¶15.   In response, Jones, citing Seller v. Sellers, 638 So. 2d 481 (Miss. 1994), argues that

prior drug use does not hinder a parent from obtaining custody or render the parent unfit

where there is evidence of reform. In Sellers, a father appealed the award of custody of his

child to the child’s maternal aunt. The Mississippi Supreme Court held that (1) the

presumption in favor of awarding custody to the natural parent should prevail over any

imperative regarding separating siblings, and (2) the chancellor erred in awarding custody

of the child to her aunt, rather than to the natural father. The Sellers court stated:

       The only factor weighing against Raymond was his history of marijuana use.
       However, this fact was not mentioned by the chancellor in his ruling.
       Raymond testified that after he was refused custody of his children at the
       original [y]outh [c]ourt hearing, he completely stopped using marijuana. He
       further testified that he had not used marijuana in over a year, a fact that was
       not disputed by any party, and also volunteered to submit to drug testing, day
       or night, if he were awarded custody of Anna. Based on the evidence
       presented, Raymond appears to have overcome his problem with marijuana.

Sellers, 638 So. 2d at 486-87. In addition, Jones argues that there is substantial evidence

supporting the fact that he did not desert Hayden. More specifically, Jones cites to the fact

that he visited Hayden on a regular basis and even took legal action on the two separate

occasions that he was denied visitation with his son. Jones also argues that, while he and the

Altoms disagree on the volume of his visitation, the Altoms admit that there was a substantial

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amount of visitation by Jones. Jones further argues that there is a substantial amount of

evidence showing that he provided financial support for Hayden throughout his life.

¶16.   Here, Jones has demonstrated himself to have been drug free for more than a year

prior to his being awarded temporary custody of Hayden, and he has stated his willingness

to be drug tested “until the end of time.”    Therefore, we agree with Jones that there is

substantial evidence supporting the decision of the chancery court. As stated, we afford

substantial deference to the chancery court when reviewing its factual findings and

determining if those findings are clearly erroneous. Likewise, “[o]n appeal, we cannot

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

are supported by substantial evidence.” White v. White, 26 So. 3d 342, 352 (¶31) (Miss.

2010) (internal citation omitted). “Substantial evidence is such relevant evidence as

reasonable minds might accept as adequate to support a conclusion and the evidence must

be more than a mere scintilla or suspicion.” Knight v. Pub. Emps. Ret. Sys. of Miss., 108 So.

3d 912, 922 (¶37) (Miss. 2012) (internal citation and quotation marks omitted). As such, we

find no merit to the Altoms’ assertion that the chancery court erred in not finding that they

rebutted the natural-parent presumption by clear and convincing evidence.

       III.   Incidents of Permanency

¶17.   The Altoms’ last argument is that the chancellor erred in issuing the August 7, 2014

order, which modified the June 19, 2013 order, because the June 19, 2013 order had acquired

sufficient incidents of permanency and operated as a de facto permanent order. The Altoms

contend that the passage of a sufficient amount of time can make even temporary orders



                                              9
permanent for custody-modification purposes, thereby requiring that a change of custody be

predicated on a showing of a material change in circumstances that adversely affected the

child. The Altoms then conclude their argument by stating that Jones failed to prove any

material change in circumstances adverse to Hayden’s best interest.

¶18.   In response, Jones argues that the chancellor’s previous orders were meant to be

temporary, citing to the facts that the chancellor stated that the orders were not to be final or

to affect the outcome of the final hearing and that the chancellor set additional proceedings

on specific dates. Jones contends that the mere passage of time is not the only factor in

determining whether incidents of permanency have been established and such decisions are

best left to the chancellor’s sole discretion.

¶19.   We do not disagree with the Altoms’ basic argument that for custody-modification

purposes, a temporary order in certain circumstances, because of the passage of time, can be

considered permanent. See Swartzfager v. Derrick, 942 So. 2d 255, 258 (¶10) (Miss. Ct.

App. 2006); Thompson v. Thompson, 799 So. 2d 919, 926-27 (¶¶30-31) (Miss. Ct. App.

2001). However, that is not the case here. We agree with Jones that the chancellor’s

previous orders were meant to be, and were in fact, temporary orders. Even a casual review

of the temporary orders that were entered makes it abundantly clear that the chancellor

intended to review the matter of custody at a later date, precluding a finding that the

temporary order had become final. That this is the case is borne out by the fact that in each

temporary order that was entered prior to the August 7, 2014 order, the chancellor set a date

for further review, and as previously noted, the chancellor explicitly stated, although not very



                                                 10
artfully, that none of the temporary orders were res judicata. All parties were aware of the

“temporary” nature of the previous orders. That is borne out by the fact that no one

attempted to appeal either of the temporary orders, and the Altoms recognized that even the

August 7, 2014 order, which underlies this appeal, was temporary because they sought and

obtained a Rule 54(b) certification to allow this appeal. So we reject the Altoms’ assertion

that the June 19, 2013 order had been transformed into a permanent order. This issue lacks

merit. Accordingly, we affirm.

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

    LEE, C.J., GRIFFIS, P.J., BARNES, ISHEE, FAIR, JAMES, WILSON AND
GREENLEE, JJ., CONCUR. CARLTON, J., DISSENTS WITHOUT SEPARATE
WRITTEN OPINION.




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