           IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                                 NO. 2014-CA-00747-COA

THE MATTER OF THE DISSOLUTION OF THE
MARRIAGE OF NANCY JEWEL PIERCE
EDWARDS AND JOHNNY JEROME EDWARDS:

JOHNNY JEROME EDWARDS                                                         APPELLANT

v.

NANCY JEWEL PIERCE EDWARDS                                                     APPELLEE

DATE OF JUDGMENT:                           12/20/2013
TRIAL JUDGE:                                HON. KENNETH M. BURNS
COURT FROM WHICH APPEALED:                  LOWNDES COUNTY CHANCERY COURT
ATTORNEY FOR APPELLANT:                     BO ROLAND
ATTORNEYS FOR APPELLEE:                     CARRIE A. JOURDAN
                                            SCOTT WINSTON COLOM
NATURE OF THE CASE:                         CIVIL - CUSTODY
TRIAL COURT DISPOSITION:                    GRANTED DIVORCE; AWARDED
                                            CUSTODY OF CHILDREN TO MOTHER
DISPOSITION:                                AFFIRMED - 05/03/2016
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       BEFORE GRIFFIS, P.J., ISHEE AND FAIR, JJ.

       FAIR, J., FOR THE COURT:

¶1.    After they filed a joint complaint for an irreconcilable differences divorce, Nancy and

Johnny Edwards submitted the issue of the custody of their three boys to the chancery court.

Nancy prevailed, and Johnny appeals, raising two issues relating to the chancellor’s

application of the familiar Albright factors.1 We find no error and affirm.



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           Albright v. Albright, 437 So. 2d 1003 (Miss. 1983).
                               STANDARD OF REVIEW

¶2.    This Court employs a limited standard of review in appeals from chancery court.

Corp. Mgmt. v. Greene County, 23 So. 3d 454, 459 (¶11) (Miss. 2009). “In a case disputing

child custody, the chancellor's findings will not be reversed unless manifestly wrong, clearly

erroneous, or the proper legal standard was not applied.” Mabus v. Mabus, 847 So. 2d 815,

818 (¶8) (Miss. 2003).

¶3.    In appeals from child-custody decisions, our polestar consideration, like the

chancellor’s, must be the best interest of the child. Montgomery v. Montgomery, 20 So. 3d

39, 42 (¶9) (Miss. Ct. App. 2009) (citing Hensarling v. Hensarling, 824 So. 2d 583, 587 (¶8)

(Miss. 2002)). “So long as there is substantial evidence in the record that, if found credible

by the chancellor, would provide support for the chancellor’s decision, this Court may not

intercede simply to substitute our collective opinion for that of the chancellor.” Hammers

v. Hammers, 890 So. 2d 944, 950 (¶14) (Miss. Ct. App. 2004) (quoting Bower v. Bower, 758

So. 2d 405, 412 (¶33) (Miss. 2000)).

                                       DISCUSSION

       1. Procedural Bars

¶4.    As a threshold issue, Nancy contends that Johnny’s issues are barred on appeal

because he did not raise them in a motion for a new trial. But Johnny did make a motion for

a new trial, where he contended that the chancellor erred in giving Nancy custody of the

children. This was adequate to preserve the issue for appeal. See Lee v. Lee, 78 So. 3d 326,

328-29 (¶9) (Miss. 2012). Also, because this case was tried to the court, to the extent that



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Johnny challenges the sufficiency of the evidence, no posttrial motion was required to

preserve the issues for appeal. See M.R.C.P. 52(b).

       2. Albright Factors

¶5.    Johnny presents what he styles two issues on appeal, but both essentially argue the

same point: Johnny contends that the chancellor erred in considering circumstances outside

Johnny’s control on the question of continuity of care.

¶6.    In Albright, our supreme court held that the best interest of the child must control in

all custody decisions, and this principle has been adopted by the Legislature in Mississippi

Code Annotated section 93-5-24 (Rev. 2013). In determining the best interest of the child

in custody disputes, it is the court’s duty to consider that the relationship of parent and child

is for the benefit of the child, not the parent. See Reno v. Reno, 253 Miss. 465, 475, 176 So.

2d 58, 62 (1965) (citing J.W. Bunkley Jr. & W.E. Morse, Bunkley and Morse’s Amis on

Divorce and Separation in Mississippi § 8.01 (2d ed. 1957)).

¶7.    To determine where the child’s best interest lies, chancellors must consider the

following factors when evaluating the fitness of each parent: (1) age, health, and sex of the

children; (2) continuity of care; (3) parenting skills and the willingness and capacity to

provide primary child care; (4) employment responsibilities of the parents; (5) physical and

mental health and age of the parents; (6) moral fitness of the parents; (7) emotional ties of

the parents and children; (8) home, school, and community records of the children; (9)

preference of children twelve years of age or older; (10) stability of the home environment

and employment of each parent; and (11) other relevant factors in the parent-child



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relationship. Albright, 437 So. 2d at 1005.

¶8.    The chancellor is required to address each of the Albright factors that is applicable to

the case before him. See Powell v. Ayars, 792 So. 2d 240, 244 (¶10) (Miss. 2001). However,

he need not decide that every factor favors one parent over the other. See Weeks v. Weeks,

989 So. 2d 408, 411 (¶12) (Miss. Ct. App. 2008). Nor is Albright a mathematical formula

where custody must be awarded to the parent who “wins” the most factors. Lee v. Lee, 798

So. 2d 1284, 1288 (¶15) (Miss. 2001). Instead, the Albright factors exist to ensure the

chancellor considers all the relevant facts relating to the child’s best interest. “All the factors

are important, but the chancellor has the ultimate discretion to weigh the evidence the way

he sees fit.” Johnson v. Gray, 859 So. 2d 1006, 1013-14 (¶36) (Miss. 2003).

¶9.    In a written opinion, the chancellor discussed each of the Albright factors. He found

that the sex of the children – all three were male – favored Johnny. Continuity of care

“slightly” favored Nancy because, although the parents had shared responsibilities prior to

the separation, she had physical custody of the children for more than a year prior to the

judgment. Parenting skills and employment responsibilities also favored Nancy, while the

stability of the home favored Johnny, as Nancy had moved several times after the separation.

The chancellor found that, on the whole, it was in the children’s best interest to remain with

Nancy, though the parents would share joint legal custody.

¶10.   Johnny argues on appeal that the chancellor erred in analyzing the continuity of care

factor – specifically, he contends that Nancy had an unfair advantage based on a temporary

order from an Alabama court. Johnny contends that the Alabama court had no jurisdiction



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to enter the order. He also faults Nancy for denying him visitation during the summer of

2013.

¶11.    We find no merit to these contentions. It is true that the original articulation of the

Albright factors directed the chancery court to consider the continuity of care prior to

separation. See Albright, 437 So. 2d at 1005. But the supreme court has since held that care

after separation must be considered as well. Copeland v. Copeland, 904 So. 2d 1066, 1076

(¶39) (Miss. 2004) (citing Jerome v. Stroud, 689 So. 2d 755, 757 (Miss. 1997)).

¶12.    The chancellor recited the relevant facts and rendered a rational decision on this

factor. He found:

        Both parties cared for the children until their separation in 2010. Nancy
        testified that she had helped the boys with their homework, transported them
        to school, and cleaned the house. Johnny testified that he had cooked the
        meals, washed the clothes, and cleaned the home. Each party argued that he
        or she had been the primary caregiver. Since their separation, Jalen and Jorden
        lived with their father for two years and in 2012 began living with their
        mother. Jonivan has lived with Nancy since 2010. It seems that each party has
        been the primary caregiver for the children at different times. Most recently,
        Nancy has had the continuity of care. This factor slightly favors Nancy.

¶13.    Johnny’s argument regarding the summer of 2013 is simply undeveloped in the

record; he seems to base it entirely on assertions made in pleadings rather than evidence

submitted at trial. And even if the custody situation prior to trial was the result of an unfair

ruling from another court,2 the Mississippi chancery court entered an order giving Nancy

temporary custody more than a year prior to trial. Also, the fact remains that Nancy had de

facto care of the children for a significant period of time prior to trial, regardless of whether

        2
        It is not clear exactly what occurred in the Alabama court, other than that it
eventually ceded jurisdiction to Mississippi.

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the way this came about was fair to Johnny or not. The Albright analysis is, after all,

intended to guide the determination of what is in the best interest of the children, rather than

what is fair to the parents. See Reno, 253 Miss. at 475, 176 So. 2d at 62. We find that the

chancellor both accurately and fairly weighed the evidence on this factor.

¶14.   Moreover, assuming that continuity of care was neutral or even slightly favored

Johnny, it would not necessarily follow that reversible error would result. The chancellor

assigned great weight to the facts that Nancy had the better parenting skills and that the

respective employment situations favored Nancy, as a school teacher, over Johnny, a truck

driver. The chancellor decides how to weigh the Albright factors. See Johnson, 859 So. 2d

at 1013-14 (¶36). Parenting skills and employment responsibilities were, in this case, very

important factors, and the chancellor’s reliance on them in awarding custody to Nancy was

not an abuse of discretion.

¶15. THE JUDGMENT OF THE CHANCERY COURT OF LOWNDES COUNTY
IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE
APPELLANT.

    LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, CARLTON,
JAMES, WILSON AND GREENLEE, JJ., CONCUR.




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