Kelly R. Burge v. Craig A. Burge

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

NO. 2015-CA-01580-COA

KELLY R. BURGE APPELLANT

v.

CRAIG A. BURGE AND CHADWICK A. APPELLEES
SHARFF

DATE OF JUDGMENT: 09/16/2015
TRIAL JUDGE: HON. M. RONALD DOLEAC
COURT FROM WHICH APPEALED: LAMAR COUNTY CHANCERY COURT
ATTORNEY FOR APPELLANT: PHILLIP LLOYD LONDEREE
ATTORNEYS FOR APPELLEES: ALLEN FLOWERS
EARL LINDSAY CARTER JR.
NATURE OF THE CASE: CIVIL - DOMESTIC RELATIONS
TRIAL COURT DISPOSITION: FOUND KELLY BURGE’S NATURAL-
PARENT PRESUMPTION REBUTTED;
FOUND CHADWICK SHARFF’S
NATURAL-PARENT PRESUMPTION
REBUTTED; AND AWARDED CHILD
CUSTODY TO CRAIG BURGE
DISPOSITION: AFFIRMED - 08/01/2017
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

BEFORE LEE, C.J., BARNES AND WESTBROOKS, JJ.

BARNES, J., FOR THE COURT:

¶1. This case stems from a divorce action filed by Craig Burge against Kelly Burge in the

Lamar County Chancery Court. Craig and Kelly had two children together, and Kelly also

had physical custody of her two children born of a prior marriage to Chadwick Sharff (Chad).

In Craig’s complaint for divorce, among other matters, he sought physical and legal custody

of all four children, claiming he acts in loco parentis as to the two Sharff children.
Subsequently, Chad filed a petition to join Craig’s request for custody of all four children so

as not to separate the children or, in the alternative, grant Chad custody of his children. In

the Sharff divorce case, assigned to a different chancellor, Chad moved to transfer and

consolidate his case with the Burges’ case. Craig also sought to consolidate the cases. In

turn, Kelly filed a motion for summary judgment, alleging that the chancery court did not

have jurisdiction over the Sharff children. Craig’s and Chad’s motions to consolidate were

granted, and Kelly’s motion for summary judgment was denied.

¶2. The seven-day trial spanned over six months. At the conclusion of Craig’s and Chad’s

case-in-chief, Kelly made an ore tenus motion for an involuntary dismissal of Chad’s petition

for modification of child custody and support, which was granted. In a ninety-page opinion,

the chancellor granted Craig a divorce on the grounds of uncondoned adultery, and awarded

him legal and physical custody of his two minor children, as well as of the two Sharff

children. The chancellor found Kelly’s natural-parent presumption had been rebutted with

regard to the Sharff children because of her immoral conduct and mental unfitness.

Additionally, the chancellor found Chad’s natural-parent presumption rebutted because he

had abandoned his children, and was also unfit for custody.

¶3. Kelly appeals the judgment of the chancery court, raising two issues related to the

Sharff child-custody ruling: (1) whether her natural-parent presumption was overcome, and

(2) whether modification of the Sharff action was proper when the claim had been

involuntarily dismissed. Finding no error, we affirm.

2
PROCEDURAL HISTORY

¶4. Craig and Kelly were married on June 2, 2004, after a three-week courtship. She had

been divorced from Chad for approximately four months. Craig and Kelly separated in

February 2013 in Purvis, Mississippi. Two children were born of the marriage: Paula, a

female child born in 2005, and Peter, a male child born in 2008.1 Prior to her marriage to

Craig, Kelly was married to Chad from 1998 until February 2004. Two children were born

of their marriage: Phillip, a male child born in 1998, and Perry, a male child born in 2001.

In the Sharff divorce judgment, Kelly was awarded physical custody of Phillip and Perry

Sharff, with Chad to pay child support.

¶5. In March 2013, Craig filed for divorce and requested custody of all four children,

claiming to act in loco parentis for the Sharff children. Craig named Chad as a nominal party

related to custody of the Sharff children. Craig alleged that Chad was not active in his

children’s lives, and Chad’s whereabouts were unknown. All of the children lived in the

Burge marital home. In April 2013, the chancellor entered a temporary order whereby both

parties agreed to share joint legal custody, but Craig would have temporary physical custody

of all four children. Kelly would have visitation every other weekend, and Craig had

temporary use and possession of the marital home. Both parties were enjoined from

exposing the children to romantic interests.

¶6. In August 2013, Chad answered the Burge divorce petition, even though he had not

1
Pseudonyms have been used to protect the identity of the minor children.

3
been served with process in the matter and filed a petition to join the Burge case. He denied

that Craig stood in loco parentis to his children. However, Chad joined Craig’s request to

award custody of all four children to Craig so as not to separate the children. In the

alternative, he requested modification of child custody to him. Also in August 2013, Craig

filed a petition for contempt, claiming, among other matters, that Kelly violated the

temporary order by exposing the children to her paramour, Burke Williamson, during

visitation. A guardian ad litem (GAL) was appointed for all four children. In September

2013, the chancery court issued a second temporary order, directing the children not be

exposed to Burke, and Chad’s child-support payments be paid to Craig through the trust

account of Kelly’s attorney. In December 2013, Craig filed an emergency petition claiming

Kelly had ignored these directives.

¶7. In June 2014 in the Sharff case, Chad filed a petition for modification of child custody

to him, citing Kelly’s divorce proceedings with Craig as a material change in circumstance.

Chad also claimed that he continued to pay child support for his two children, in

contradiction to Kelly’s assertions to Craig. Chad also filed a motion to transfer and

consolidate his case with the Burge case. Likewise, Craig requested consolidation of his and

Chad’s case. Kelly also filed a motion for summary judgment claiming the chancery court

lacked jurisdiction over the Sharff children.

¶8. In October 2014, an order consolidating both cases was entered, and trial began in

December 2014, and continued for several dates until July 2015. In September 2015, the

4
chancery court entered its opinion and final judgment. The chancellor granted Craig a

divorce from Kelly on the grounds of uncondoned adultery. Kelly’s natural-parent

presumption as to the two Sharff children was rebutted, as the chancery court found her

conduct “so immoral as to be detrimental to the children,” and that she was “unfit, mentally

or otherwise, to have custody.” Chad’s natural-parent presumption was also rebutted, with

the court finding he abandoned and deserted his two (Sharff) children, and that he too was

mentally unfit to have custody. Under an Albright2 analysis, Craig was granted legal and

physical custody of all four children. Kelly was ordered to pay Craig child support, and Chad

was ordered to pay $300 per month for his two children. Kelly was also found in contempt

of court for her repeated failure to prevent the children’s exposure to Burke, as ordered, and

failure to remit to Craig child support and her share of medical expenses for the children,

which amounted to $4,558.11. The chancellor stated the Sharff case was “hereby modified

as to Chad and Kelly’s custody, visitation, and child support . . . and all provisions not

modified remain in force and in effect.” Kelly timely appealed.

STATEMENT OF FACTS/TRIAL TESTIMONY

¶9. Over the course of the seven-day trial, seven volumes of trial testimony were taken

from numerous witnesses, and sixty-three exhibits were entered into evidence.3 Since this

case is primarily driven by the facts, we find it necessary to relate them in some detail.

2
Albright v. Albright, 437 So. 2d 1003 (Miss. 1983).
3
Chad did not appear at trial but was represented by counsel.

5
¶10. At the time of Craig and Kelly’s marriage, Phillip Sharff was five years old, and Perry

Sharff was two years old. Craig put the two boys on his medical insurance, and “took over

as their dad” since Chad was mostly absent. The Sharff children knew Craig as “Dad,”

although they did enjoy seeing Chad. Both boys wanted Craig’s last name of “Burge” on the

back of their baseball jerseys. Craig testified he was there for all four children and his

parenting skills are “off the chart.” He maintained that he wanted custody of all four

children.4

¶11. Craig works for his family as a log loader. The marital home was a house built before

the marriage by Craig on his family’s property in rural Lamar County. During the marriage,

Kelly stayed at home, keeping the house and caring for the children. She homeschooled them

and, according to Craig, initially did a good job. Kelly felt it was best because the children

allegedly suffered from dyslexia and had attention-deficit issues. However, Craig was not

in favor of homeschooling. In late 2012, Kelly decided to sell Visalus diet shakes part-time.

Craig would keep the children while Kelly attended the sales meetings. Toward the end of

the marriage, Craig testified that the children were often left with the oldest child, Phillip,

or Craig’s family members when Kelly left the house, which became more frequent. When

the couple received a $25,000 Christmas gift, Kelly decided to spend $8,500 on breast-

augmentation surgery less than a year before they separated, claiming a model-like figure

4
At one point, Craig considered adopting the Sharff children but changed his mind.
Kelly supported the adoption.

6
would help her Visalus sales.

¶12. Craig and Kelly separated in February 2013, when Craig came home from church and

Kelly said she was sorry he was “still trying” with regard to their marriage. Since September

2012, Kelly had been communicating with her soon-to-be paramour Burke in Jackson. Burke

was an old classmate of Kelly whom she had contacted when she was selling Visalus shakes.

He was a former soldier with post-traumatic stress disorder (PTSD) and a drinking problem,

and Kelly said she was trying to help him “find the Lord.” In December 2012, an incident

occurred where Kelly frantically insisted Craig drive her to Jackson in the middle of the night

to check on Burke because he was allegedly suicidal. Upon arrival at Burke’s apartment,

they found him passed out from alcohol consumption but unharmed. Craig instructed Kelly

to have no more communication with Burke, as it was not good for their marriage. Kelly

agreed. Burke later texted Craig that he had “no designs on [his] wife. I don’t know why

she is so taken with me” and further, that he was “not sleeping with [Kelly] and wouldn’t if

[he] could” because he is a “good soldier.”

¶13. In January 2013, another incident occurred. Kelly told Craig she was going to

Grenada to see her aunt. Upon Kelly’s return, Craig saw a photograph posted on Facebook

where Kelly was sitting on a bed topless with her back to the camera and an American flag

draped around her hips. Kelly denied the photograph was inappropriate, explaining that the

photograph was for a wounded-warrior organization that helped soldiers with PTSD. She

defended it as “Christian.”

7
¶14. In March 2013, after the couple’s separation, Kelly checked herself in to Pine Grove,

a behavior health and addiction treatment center in Hattiesburg, where her mother worked

as a nurse. Kelly told Pine Grove that she was “torn between two men,” and had been

depressed and suicidal for fourteen years. She was diagnosed with a broad range of maladies

including depression, anxiety, insomnia, and “magical thinking.” Craig stated that before her

admission, Kelly was having “intrusive thoughts” and was suicidal; Kelly denied this

accusation. During her five-day stay, Burke sent Craig a text message letting him know that

Kelly wanted Burke to call her at Pine Grove, but stated: “You don’t have to worry about

me anymore . . . but the next guy she finds won’t be as moral as I am.” Burke then told Craig

that the weekend Kelly said she went to her aunt’s house in Grenada, she had actually come

to Jackson to have lunch with Burke. They had drinks and ended up at Burke’s apartment

in bed. Burke said Kelly wanted to have sex, but Burke refused. Burke texted Craig:

“[W]ith the ease [Kelly] went from trying to sell me shakes to wanting to be with me I doubt

I’m her first.” Burke then offered to send Craig several raunchy “sex texts” between Kelly

and him. Craig assented, and Burke sent a series of sexually explicit text messages to Craig.

Kelly later testified that Burke made up the messages. The chancellor later found these texts

“troubling.”

¶15. The same morning the sex texts were sent, Pine Grove staff requested Craig come for

a family meeting with Kelly and “expect the worst,” because the marriage was broken and

Kelly was leaving. However, Kelly maintained that the marriage was over long before she

8
went to Pine Grove. When confronted by Craig, Kelly admitted the sexual texts with Burke

were valid, and that she went to Burke’s apartment instead of her aunt’s house. Kelly also

admitted to Craig that she had committed adultery with Burke.5 In response, Craig told Kelly

not to return to the marital house. Kelly claimed she was “kicked out” of the house.

¶16. Upon discharge from Pine Grove, Kelly supposedly stayed with her parents for a few

days and then moved into Burke’s apartment in Ridgeland. Again, the exact dates vary. She

claimed Burke “stayed elsewhere.” Kelly did not comply with the Pine Grove discharge

recommendations of therapy, medications, and ninety days of Alcoholics Anonymous. At

some point Kelly rented an apartment near Burke’s in the same complex. He paid for her

rent, utilities, food, and all of her expenses because she was “homeless and destitute.” Kelly

described Burke as her “soul mate, rock, and best friend.” She testified that she is happy

with him, and he would probably be her boyfriend once the divorce is concluded.

¶17. Craig testified that he takes care of the children’s needs, even though he works long

hours. He receives help from his nearby family members as needed for child care and

tutoring. Craig lives in the marital four-bedroom home near Purvis, while Kelly now lives

in a three-bedroom apartment in Pearl. Kelly’s parents live in Hattiesburg, and her

grandparents live in Purvis, but she testified she plans on staying in the Jackson area. At the

time of trial, Kelly had a new job at a day care making $12 an hour for a forty-hour work

5
Craig later filed an alienation-of-affection lawsuit against Burke. At one point,
Kelly admitted she started having sex with Burke in July 2013; however, the dates their
sexual relationship commenced vary.

9
week. Kelly testified that she has no mental-health issues; her depression was cured by

prayer.

¶18. During their marriage, Craig testified that Kelly received $23,790 in child support

from Chad that he did not know about. At a certain point, Kelly told both Craig and the

Sharff children that she did not know whether Chad was “dead or alive,” and that she had

received no child support from him. Later, Craig learned Chad had not missed a child-

support payment since October 2007. Further, Chad stated Kelly had thwarted his visitation

efforts. Under the court’s second temporary order of September 19, 2013, Kelly was to pay

Craig any child-support payments received by Chad, but admittedly did not. Craig stated she

owed him $5,474.46 for the amount paid by Chad since the temporary court order. Craig

calculated he had spent $24,777.60 in medical insurance for the Sharff children since his

marriage to Kelly, in addition to medical and dental expenses for the children.

¶19. Craig testified that Kelly started drinking at home toward the end of their marriage.

He found empty Crown Royal bottles in the house. Kelly’s bank statements were entered

into evidence showing Chad’s child-support payment deposits as well as Kelly’s liquor

purchases. Craig also noted there were no rental or utility payments listed, although Kelly

said she had her own apartment. Craig complained that Kelly did not use the child-support

payments she received for the children, but on herself.

¶20. At the time of separation, Kelly was still homeschooling all of the children. Craig

would come home from work and Kelly would be in bed with the children watching DVDs,

10
or Kelly had gone to the gym and left Phillip in charge. Kelly claimed three of the four

children have dyslexia. After separation, once Craig had temporary custody, he put the

children in public school, but three of the children were behind in grade level.

¶21. Craig was involved in coaching some of the children’s sports, but testified that Kelly

had not attended any sports events during the summer of 2013. She attended a few school

programs in 2013, and had not been involved during 2014. Kelly justified her absence at

sporting events and school functions by claiming the Purvis community shunned her. The

children often missed sports events for visitation with Kelly. Craig testified that Kelly

refused to work with him on altering the visitation schedule when there was a conflict.

¶22. Sixteen-year-old Phillip executed an affidavit making an election of preference to live

with Craig. He also testified at trial. He considers Craig a father figure, and all of his

siblings “a group.” He did not want to be separated from them, and did not want to live in

Jackson, as he has no relatives there. Also, he has to take care of his siblings more in

Jackson when visiting his mother. He claimed Craig never treated the Sharff children

differently. He knew Kelly lives with Burke and claimed Burke has spent the night at Kelly’s

apartment while he and his siblings were there. Phillip also admitted Kelly did not do a good

job homeschooling. When he started school in Purvis, Phillip stated he was behind in every

subject and his mother did nothing to help because she did not attend parent-teacher meetings

or sporting events. Playing sports is important to Phillip, but he said his mother makes him

feel bad for missing visitation on Fridays. Before separation, Phillip commented that his

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mother was present in the home but “not really there.” She also tended to “quit when things

got tough,” and left him in charge. In the past, Phillip had agreed to be adopted by Craig,

although it never occurred.

¶23. Craig worried that if Kelly were awarded custody, she would return to homeschooling

the children, as she is “completely disgusted” that her children are now in public school in

Purvis. He was also concerned about Kelly’s continued relationship with Burke, as well as

his drinking problem, PTSD, and alleged atheism. Kelly was also violating the temporary

order by exposing the children to Burke. The children told Craig that Burke was at Kelly’s

apartment when they visit their mother. During one incident, Craig testified that Burke had

grabbed Peter by the shirt when Peter locked himself in a bedroom, and Peter cried when

telling Craig about it, although Kelly told the children not to mention the incident to Craig.

Further, text messages were entered into evidence showing Kelly wanted permission from

Craig for Burke to take the children to the state fair, after the temporary order was entered

that Burke should not have contact with the children. Additionally, Craig entered a

photograph into evidence that Kelly had published on social media showing Kelly and Burke

enjoying themselves at the Ritz Carlton lounge in Georgia. Instead of exercising visitation

with her children one weekend, Kelly had attended a lavish “Williamson family vacation”

with Burke and his family.

¶24. Burke is a web designer that works for C Spire. Burke testified that his home mailing

address is Kelly’s address in Pearl. He was aware of the temporary court orders but unsure

12
of when he realized he was prohibited from being around the children. He admitted that he

is Kelly’s boyfriend. She moved into his place, and they started having sex in June 2013;

however, she pursued him. He claimed that when Kelly told the GAL they were not having

“relations,” that was untrue. Burke admitted the sex texts he sent to Craig were meant to hurt

Craig. Burke had edited them in order to make the communications more painful to Craig

and cast Kelly in the worst light possible; however, Kelly has forgiven him. He said he had

no interest in getting married to Kelly even if she were awarded custody. Burke also

admitted he had been around the children during visitations. In his deposition, it was his

opinion that if Kelly had custody of her four children, it would be “an F’ing nightmare.”

¶25. Kelly agreed the children should not be separated, but that she should have custody.

Kelly stated she was the children’s primary caregiver during the marriage. Kelly denied

telling the GAL that Chad and Craig were colluding to deprive her of custody of her

children,6 as well as that she hid child-support funds before or after the separation. She

claimed that Craig told her she did not have to pay him child support since the separation,

and she used the funds to pay for the court-ordered psychologist. However, she admitted “it

was not a matter of need” and she knew she was violating a court order. She also admitted

not paying Craig for the children’s medical expenses.

¶26. Kelly acknowledged that Craig was the father figure and role model for all of the

6
However, this is an argument Kelly makes on appeal regarding Chad’s petition to
modify child support and its involuntary dismissal.

13
children. Regarding Phillip’s sports schedules and visitation, she claims that if the situation

were reversed, she would force Phillip to visit Craig, as “family comes first.” She described

her parenting skills as excellent, stating she has been a baby sitter, day-care worker, and

homeschool teacher, and went to parenting and continuing-education classes. She believes

the Bible teaches how to raise a child. Further, she stated that her sexual immorality should

be discounted because she did not have sex with Burke until after separation from Craig, and

thus it does not actually constitute adultery. Kelly accused Craig of marital rape for years,

assuring the court she had apprised Pine Grove of the matter; however, no record of the

allegation was found. Kelly admitted that Burke had been around the children numerous

times despite the temporary order, and if she received custody he would be with them “a lot.”

Chad’s whereabouts are unknown to her; she believed at one time his parental rights should

be terminated, but now she “just wants him out of the picture.” She believes this scenario

would be best for the Sharff children.

¶27. Kelly’s support system in Jackson would consist of day-care centers related to her

work, and relatives. She claimed she just agreed to Craig’s temporary custody at the outset

of the case to allow the children to finish out the rest of the school year before she was

awarded custody. Kelly explained when she drank too much it was to steel herself because

Craig had a penchant for rough sex, but she denied alcoholism. Kelly claims to suffer from

dyscalculia, a condition that impacts her ability to remember dates, times, and directions.

Additionally, Kelly said she missed school events because Craig did not inform her, and she

14
should not have to look up events on a website. Kelly denied that her homeschooling efforts

constituted “baby sitting.” Kelly acknowledged that Burke is on an antidepressant. Kelly

stated she is comfortable with the children seeing her American-flag photograph. She

explained that the decision to go on Burke’s family’s vacation during her visitation weekend

was not wrong and was in the best interest of the children because she “had to be mentally

strong.” Kelly acknowledged she is at her third job since the case began, making $33,000

a year at a day care.

¶28. At trial, Dr. Daniel Moore, a licensed psychologist, testified about Kelly’s and Craig’s

court-ordered psychological evaluations. Kelly denied to Dr. Moore any suicidal ideations,

although the Pine Grove records indicate Kelly told them she had experienced fourteen years

of suicidal thoughts and ideations. Dr. Moore did not feel Kelly was at a significant risk for

suicide; she had no symptoms of depression or anxiety and had quit taking antidepressants.

Kelly’s issues expressed at Pine Grove were resolved or different. He found Kelly easily

manipulated, that she used drinking as an escape, and her affair created inner turmoil. Craig

he deemed as psychologically fit as the general population.

¶29. The GAL, James Johnson, submitted three reports over the course of the case and

testified at trial. He found the children were doing well in Craig’s custody, and while both

parents had safe abodes, the children did not want to stay at Kelly’s apartment. The GAL

stated it was in their best interest to stay together. Johnson stated the children’s needs were

better met with Craig regarding protection and provision. Moreover, Chad chose Craig over

15
Kelly to parent his children. He noted Kelly has stability in Pearl, but her continued

relationship with Burke is confusing to the children. He was not concerned with Burke’s

PTSD if the children did not spend the night with him. Johnson agreed with Dr. Moore that

Kelly has no mental issues of concern now; Kelly’s stay at Pine Grove appeared to be more

“respite” type care encouraged by her mother. Johnson stated Kelly perceives herself as a

victim. Additionally, Burke’s dishonesty with the court was potentially a moral-fitness

concern. Johnson also stated Kelly’s failure to turn over the child support paid to her by

Chad for the Sharff children was a moral-fitness concern due to her knowing noncompliance

with a court order. He also acknowledged discrepancies with Kelly’s testimony about the

date she moved in with Burke upon release from Pine Grove; however, Kelly maintained she

was “back and forth” between Ridgeland and Hattiesburg during that time. Johnson

recommended the children remain in public school and not be homeschooled. Ultimately,

Johnson felt the children would be better off with Craig, and Kelly should have liberal

visitation.

THE CHANCERY COURT’S ALBRIGHT-FACTOR FINDINGS

¶30. Upon finding Kelly and Chad’s natural-parent presumption rebutted, the court

conducted an Albright analysis for all four children.7 Although the court’s Albright analysis

was not challenged by Kelly, there is an overlap of the analysis of the Albright factors with

7
The chancellor did not adopt the findings of the GAL regarding the Albright factors,
as some conclusions were different.

16
the natural-parent-presumption rebuttal. The court’s Albright analysis gives more insight into

the facts of the case; therefore, we shall summarize the findings. Ultimately, the court found

all of the factors favored Craig but parent/child emotional ties, which was neutral.

¶31. Citing a text-message exchange between Craig and Kelly when one of the children

was sick during visitation, the chancellor found age, health, and gender of the children

favored Craig. Kelly had refused to take the child to the doctor for bad sinus drainage,

wanting Craig to do it once her visitation was over. She claimed not to have money for the

copayment, although the court noted she was able to borrow money from Burke to go to the

state fair. The court found this incident “an example of how Kelly’s self-perceived

victimization adversely affects the children in a direct way.” Continuity of care favored

Craig, as the court found Kelly’s homeschooling was “ineffective at best and negligent at

worst.” Further, no apparent problems with care of the children had been seen with Craig

since the separation.

¶32. As to parenting skills and the capacity to provide child care, the court found the factor

to favor Craig. While both parents expressed willingness to parent the children, the court

noted Kelly’s defiance of the court’s order prohibiting the children from being around Burke.

The court deemed Burke “detrimental to the children’s best interests.” The court found

Kelly’s failure “is due in large part to her perception that there is nothing harmful about

having the children around [Burke], which the Court finds does not evince good parenting

skills . . . nor good judgment.” While both parents could have worked better to solve

17
visitation problems, the court deemed Kelly’s actions selfish. “[E]ven older teenagers do

not get to say whether they will attend visitation or not, but a parent who denies a child

participation in an activity that the child enjoys and that promotes his health, his confidence,

and his social well-being is thinking only of herself.” Employment was found to favor Craig;

both parties work during the daytime, but Kelly does not have as much family support as

Craig. Physical health, mental health, and age favored Craig. The court found while both

parties were close to the same age, Kelly’s medical records indicate a history of depression

and attention deficit hyperactivity disorder. The emotional-ties factor was deemed neutral

as to Kelly and Craig. Moral fitness favored Craig, as Kelly admitted to post-separation

adultery and had a pre-separation infatuation with Burke. Home, school, and community

records of the children favored Craig. Even though Kelly homeschooled the children prior

to the separation, they fared better academically under Craig’s custody in public school.

Further, in the Purvis/Hattiesburg area, the children have an extended family on both sides,

have made friends, are involved in extracurricular activities, and attend school. Moving to

Jackson would make them “start over” in these regards.

¶33. The children’s preference applies only to the Sharff children due to the Burge

children’s young ages. Perry did not express a preference except to remain with his siblings;

Phillip expressed a strong desire to remain with Craig; so the factor favored Craig. The

stability of the home environment and employment favored Craig, who still resides in the

marital home. Craig has been employed by his family’s logging business for several years,

18
while Kelly is on her third job since the separation. Other factors relevant to the parent-child

relationship all favored Craig. The parties’ financial situation and religion favored Craig.

He is better able to support the children financially, and is more active with the children in

church. The chancellor found it “clearly evident that the personal values of the parents are

quite different,” and that factor favored Craig. Parental lifestyle also favored Craig; the court

commented, “Craig appears to be focused on and oriented toward the family. Kelly, on the

other hand, is focused primarily on her own interests and her relationship with Burke.”

Finally, Craig, Kelly, Phillip, and the GAL all indicated the children should stay together.

STANDARD OF REVIEW

¶34. Our standard of review in child-custody cases is limited. Borden v. Borden, 167 So.

3d 238, 241 (¶4) (Miss. 2014). This Court will only reverse a chancellor’s custody decision

if it was manifestly wrong or clearly erroneous, or if an erroneous legal standard was applied.

In re Waites, 152 So. 3d 306, 311 (¶13) (Miss. 2014). Appellate courts cannot “reevaluate

the evidence, retest the credibility of witnesses, nor otherwise act as a second fact-finder.”

Bower v. Bower, 758 So. 2d 405, 412 (¶31) (Miss. 2000) (citation omitted). Questions of law

are reviewed de novo. In re Custody of M.A.G., 859 So. 2d 1001, 1003 (¶4) (Miss. 2003).

ANALYSIS

¶35. Kelly raises one substantive and one procedural argument related to the two Sharff

children and the rebuttal of her natural-parent presumption. We shall address each in turn.

I. Rebuttal of Kelly’s Natural-Parent Presumption

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¶36. Kelly argues that it was error for the chancellor to find her natural-parent presumption

as to her children with Chad was rebutted because of immoral conduct and unfitness. Kelly

states these findings were improperly based on her continued relationship with her paramour,

Burke, and the failure to comply with the chancery court’s temporary orders regarding

payment of child support to Craig and the children’s exposure to Burke. Kelly also argues

that the chancellor applied an erroneous legal standard in making the findings that engaging

in a post-separation affair and acting in contempt of a court order constitute moral or mental

unfitness sufficient to rebut the natural-parent presumption. We disagree.

¶37. “The best interest of the child is paramount in any child-custody case.” Smith v.

Smith, 97 So. 3d 43, 46 (¶8) (Miss. 2012). “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.” Id. In order to be awarded custody, the third party must rebut the natural-

parent presumption by clear and convincing evidence. The natural-parent presumption is

rebutted by clearly 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.” Id. at (¶9) (citations

omitted). If successful, the chancellor must next examine the Albright factors and determine

if third-party custody is in the best interest of the child. A finding of unfitness is necessary

to award custody to a third party over a natural parent, and is done before analysis of the

Albright factors. M.A.G., 859 So. 2d at 1004 (¶6).

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¶38. A person is in loco parentis “who stands in place of a parent, having assumed the

status and obligations of a parent.” Davis v. Vaughn, 126 So. 3d 33, 37 (¶11) (Miss. 2013)

(citation omitted).8 “The doctrine of in loco parentis does not, by itself, overcome the

natural-parent presumption,” although it may be a factor in determining whether the

presumption has been rebutted. Smith, 97 So. 3d at 46-47 (¶¶10-11).

¶39. Because Craig sought custody of the two Sharff children, in addition to his own two

children, the chancery court analyzed his request under the child-custody law related to the

natural parent versus a third party. The chancery court found both Kelly and Chad’s natural-

parent presumption rebutted. Kelly’s conduct was found to be immoral. In support of this

finding, the court pointed to:

[Kelly’s] repeated failure to follow the Court’s orders; her failure to protect
her children from Burke Williamson, who the Court deems to be a danger to

8
The Mississippi Supreme Court has further stated:

Any person who takes a child of another into his home and treats it as a
member of his family, providing parental supervision, support and education,
as if it were his own child, is said to stand in loco parentis. In loco parentis
status carries with it the same duties and liabilities that belong to a natural
parent, including a right to custody of the child “as against third persons.”

Although this doctrine grants third parties certain parental rights, such rights
are inferior to those of a natural parent. Thus, in a custody dispute between
one standing in loco parentis and a natural parent, the parent is entitled to
custody unless the natural-parent presumption is rebutted. The court may not
consider granting custody to a third party, including one standing in loco
parentis, unless and until the third party rebuts this presumption.

Davis, 126 So. 3d at 37 (¶¶11-12) (internal citations omitted).

21
the children, instead engaging Williamson in an intimate relationship; her
failure to support the children by seeing that the child support money paid to
her by Chad Sharff was given to Craig for the use and benefit of the children,
instead of spending it on herself.

Additionally, the chancery court found Kelly unfit, mentally or otherwise, to have custody,

stating:

[T]he Court again considers [Kelly’s] failures where it pertains to the children
– to ensure their support, to follow the Court’s orders, to protect them from
harm. Not only has Kelly defied and refused to obey the Court’s prohibition
against having the children around Burke Williamson, an individual the Court
deems to be detrimental to the children’s best interests, [but] it appears to the
Court that Kelly’s said failure is due in large part to her perception that there
is nothing harmful about having the children around Williamson. Given the
exhaustive amount of evidence in the record concerning Williamson, her
decisions regarding Williamson and the children seriously call her parental
fitness and her mental fitness into question, to the point that the Court deems
it necessary to intervene for the sake of the children.

The chancery court also found it “necessary to point out how incredible the Court finds

Kelly’s testimony to be, in nearly all respects.”

¶40. On appeal, Kelly offers very little in the way of argument on this issue, except to state

the clear and convincing burden was not met, and the finding was an “extreme and unjust

sanction for contempt.” Upon careful review, we find the chancery court’s findings that

Kelly was immoral and unfit supported by substantial evidence.

¶41. The court’s findings are lengthy and detailed. As pointed out by the chancellor and

Craig, Kelly did not lose custody over a few modest indiscretions, but instead by making

constant choices that favored her own desires over her children’s best interests. Indeed, her

relationship with her “soulmate” Burke appears to take precedence over custody of her

22
children. The chancellor was so concerned about Burke’s being around the children, he

twice enjoined Burke from contact with them. Burke’s history includes alcoholism, PTSD,

adultery, and disobeying court orders. Burke admitted he has PTSD, he is taking medication

for it, and there is no cure. He also admitted to drinking several days a week. The chancellor

specifically stated that he found it “necessary to intervene for the sake of the children.” The

chancellor also found it necessary to threaten Burke with perjury on the stand due to his

evasive and obviously untruthful testimony about Kelly’s flag photograph and when they

started a sexual relationship.

¶42. Kelly’s relationship with Burke was not the only reason her natural-parent

presumption was rebutted. Importantly, the chancellor noted a pattern of behavior by Kelly

of misleading the GAL, Dr. Moore, and the court itself, which was reflected in the record.

Her testimony was frequently contradictory about dates, places, and times, although she

apparently blames the discrepancies on dyscalculia.

¶43. Kelly’s inability to respect and obey the court’s directives also points to her lack of

morality and fitness as a parent. Kelly defied the court’s temporary orders by living with

Burke, exposing her children to Burke during visitation, allowing Burke to discipline

physically one of her children, and refusing to pay Chad’s child-support payments to Craig.

Additionally, she was not truthful about whether Chad was making child-support payments.

¶44. Chancellors make third-party custody decisions on a case-by-case basis and have wide

discretion in their rulings. We cannot find that the chancellor abused his discretion in

23
awarding legal and physical custody of the Sharff children to Craig because Kelly was found

immoral and unfit. Kelly placed her relationship with Burke above all concerns for her

children, even though her relationship with Burke was detrimental to her children, and

impeded her ability to gain legal and physical custody of them. She further used the money

Chad paid her as child support for her own personal expenses. Craig believed she also

planned to continue to homeschool the children even though it was found detrimental to their

education. Kelly failed to comply with the Pine Grove discharge recommendations. The

children’s needs and welfare were always placed behind those of Kelly.

II. Involuntary Dismissal of Chad’s Custody-Modification Claims

¶45. Kelly makes the procedural argument that the chancery court’s jurisdiction over the

Sharff divorce ended when Chad’s custody-modification pleadings were involuntarily

dismissed due to failure to prosecute. She claims that because Craig lacks standing in the

Sharff divorce, no motion for modification survived, and the chancery court lacked grounds

and jurisdiction to modify the Sharff action. Additionally, Kelly contends that the record

supports collusion between Craig and Chad, who were attempting to deprive Kelly of custody

of her four minor children by misuse of the procedural process. We are not persuaded by this

argument.

¶46. Initially, Chad filed a petition to join Craig’s case “for just adjudication,” and

requested Craig have custody of the children so as not to separate them. Alternatively, Chad

requested he have custody. Approximately ten months later, Chad filed a petition to modify

24
child custody in his own case, requesting legal and physical custody of his two children, since

a material change in circumstances had occurred – the Burge divorce proceedings. He also

filed a motion to transfer and consolidate his case with Craig’s case, since the same evidence

would be presented in both cases to determine custody. Likewise, Craig filed a motion to

consolidate his case with Chad’s case, and before trial began, the cases were consolidated.

¶47. At the conclusion of Craig’s and Chad’s case-in-chief, Kelly’s counsel made an ore

tenus motion for the involuntary dismissal of Chad’s custody-modification action under

Mississippi Rule of Civil Procedure 41(b), because Chad had not presented any evidence at

trial to forward his claim.9 Indeed, Chad had not been physically present during the trial

since an initial motions hearing nearly eight months earlier. Accordingly, the chancery court

granted Kelly’s Rule 41(b) motion to dismiss, denying any relief requested by Chad for

custody of his children. However, in the chancellor’s opinion, he stated that the Sharff

divorce judgment was modified by Craig’s grant of custody.

¶48. From this ruling, Kelly argues that the involuntary dismissal of Chad’s custody

modification in this case makes it “legally impossible” for the chancery court to address a

change of custody for the Sharff children from Kelly to Craig. She contends the involuntary

dismissal was an adjudication on the merits, and Craig no longer has standing in the Sharff

case. Thus, the court lacked jurisdiction to modify the custody in it, and the children must

remain in Kelly’s custody. We disagree.

9
Rule 41(b) allows for involuntary dismissal for failure to prosecute.

25
¶49. In Professor Deborah Bell’s family-law treatise, she states:

A petition to modify . . . [a] custody . . . order must be filed in the court that
issued the decree. As between the parties in the original action, the issuing
court’s jurisdiction is exclusive, precluding any other court in the state from
exercising jurisdiction over the case. . . . However, if an issuing court finds
that adjudication in another court would be more efficient, jurisdiction may be
transferred to that court.

Deborah H. Bell, Bell on Mississippi Family Law, § 18.07(1), at 447 (1st ed. 2005).

Mississippi Code Annotated section 93-11-65 (Rev. 2013) allows the chancery court to hear

a custody case apart from a divorce action.10 Here, prior to the modification action filed by

Chad, Craig had filed for third-party custody of the Sharff children in this action. According

to statute, both actions were filed in the Lamar County Chancery Court, as the Sharff children

resided in Lamar County in both actions, which is where custody between the natural parents

has already been adjudicated. Chad’s modification action and Craig’s action are in the same

chancery court, but with different cause numbers. Craig requested custody – something the

court could grant – and both natural parents were given notice and an opportunity to be

heard. The chancery court had the jurisdiction to modify custody of the Sharff children. That

10
Section 93-11-65(1) provides that the chancery court of the proper county has
jurisdiction to hear and determine suits for custody of minor children. “Proceedings may be
brought by or against a resident or nonresident of the State of Mississippi, whether or not
having the actual custody of minor children, for the purpose of judicially determining the
legal custody of a child.” The action shall be brought in the county where the child is
actually residing, or in the county of the residence of the party with actual custody, or in the
county of the residence of the defendant. “Process shall be had upon the parties as provided
by law . . . .”

26
jurisdiction was not lost when Chad’s petition to modify custody was dismissed.11 Kelly has

not cited any authority to the contrary. This issue is without merit.

CONCLUSION

¶50. The chancery court did not abuse its discretion in finding Kelly’s natural-parent

presumption rebutted and in awarding physical and legal custody of the Sharff children to

Craig. The chancellor’s findings were supported by clear and convincing evidence with the

best interests of the children in mind. Further, Kelly’s procedural argument is without merit.

Accordingly, this Court affirms the judgment of the chancery court granting custody of all

four children to Craig.

¶51. AFFIRMED.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., ISHEE, CARLTON, FAIR, WILSON,
GREENLEE AND WESTBROOKS, JJ., CONCUR.

11
Even if the action had been filed in a different chancery court, the chancellor could
have transferred the action. Here, the actions were merely consolidated as they were already
in the same court.

27