author: LAMAR, Justice,

text:
    Jimmy Ray CHISM, Jr. v. Abby Gale Morris Chism BRIGHT.
    No. 2011-CT-01472-SCT.
    Supreme Court of Mississippi.
    Dec. 11, 2014.

      Gregory M. Hunsucker, Jak M. Smith, Tupelo, attorneys for appellant.
    J. Mark Sheldon, Jana L. Dawson, attorneys for appellee.

      . The chancellor’s order does not indicate why the trial was continued.

   ON WRIT OF CERTIORARI

LAMAR, Justice,

for the Court.

¶ 1. Jimmy Ray Chism Jr. challenges the termination of his parental rights to his son, Johnny. Because we find that Jim’s parental rights were wrongfully terminated, we reverse the judgments of Court of Appeals and the chancery court and remand this case to the Union County Chancery Court.

FACTS AND PROCEDURAL HISTORY

¶ 2. Jimmy Ray Chism Jr. and Abby Gale Morris Chism Bright married on October 17, 2003. They had one child, Johnny, on March 17, 2004, and they divorced on March 10, 2008. Under the divorce decree, the parties had joint legal custody of Johnny; Abby had primary physical custody, and Jim had regular, unrestricted visitation. From March 2008 to July 4, 2008, Jim executed his visitation rights without incident.

¶ 3. On July 4, 2008, Jim and Abby separately attended a party at Darden Lake. Johnny stayed with Jim’s parents, Dr. Jimmy Ray Chism Sr. and Terri Chism, at their cabin near Darden Lake. On the morning of July 5, Jim picked Johnny up from his parents’ cabin and drove him to a nearby McDonald’s. While in the drive-through line, Jim fell asleep with the car in park. The police were called, and Jim was arrested for public intoxication. Johnny was not injured during the incident, and Terri picked him up from the scene.

¶ 4. On July 25, 2008, Abby filed an emergency petition for modification of Jim’s visitation rights, based on the July 5 incident. On August 18, 2008, the chancellor entered an order for modification of visitation which: (1) required that all Jim’s visitation periods be supervised by Terri; (2) prohibited alcohol or drugs from being in Johnny’s presence during his visitation periods with Jim; and (3) prohibited Jim from operating any motor vehicle with Johnny as a passenger. The order also stated that:

If Jimmy Ray Chism, Jr. fails to report to United States Army training facilities in Fort Benning, Georgia on September 3, 2008, all visitation will cease[,] and as a condition for reinstatement Jimmy Ray Chism, Jr. shall comply with all of the Union County Department of Human Services recommendations, including supplying a hair sample for DNA drug testing at a DHS approved medical facility, and he shall be committed to an in-patient treatment facility for a period of not less [than] thirty (30) days.

Jim did not report to the United States Army, and he did not begin satisfying the court’s requirements to reinstate his visitation until July 15, 2009, when he admitted himself into Haven House for alcohol treatment. He spent fifty-one days at Haven House and, upon his discharge in September 2009, he attempted to resume his visitation with Johnny. When Abby did not respond to his requests, Jim filed a complaint for citation of contempt. In response, Abby filed a countercomplaint for termination of Jim’s parental rights.

¶ 5. Jonathan Martin was appointed as Johnny’s guardian ad litem on November 20, 2009. In accordance with Martin’s recommendation, the chancellor awarded Jim and his family one hour of visitation on December 25, 2009; Jim and his family exercised their'visitation rights without incident. On January 21, 2010, Jim again moved for additional visitation with Johnny, representing to the court that he had complied with the requirements of the August 18, 2008, modification order, and that the Christmas Day visitation had been a success.

¶ 6. Ultimately, the chancellor allowed Jim to have supervised visitation with Johnny on two occasions at his parents’ home in early 2010, and both visits went well. After Jim failed two drug tests in the spring of 2010, Martin encouraged him to go to the National Counsel on Drugs and Alcohol Dependancy (NCADD) in Tu-pelo, Mississippi. Jim presented himself to NCADD in May 2010, and the director recommended him for inhouse treatment. Shortly thereafter, Jim burglarized one of his neighbor’s homes while intoxicated. On June 27, 2010, Jim admitted himself into the Fairland treatment facility in Dublin, Mississippi, where he stayed for ninety-five days until he was discharged on October 1, 2010.

¶ 7. Trial on Jim’s complaint for citation of contempt and Abby’s countercom-plaint for termination of Jim’s parental rights began on October 18, 2010. Jim testified that he believed he was on the road to recovery because of the care he received at Fairland, his new anti-depressant prescription, a renewed spiritual commitment, and his support system, consisting of his family, girlfriend, and sponsor. Trial adjourned, and on November 19, 2010, Jim consumed large amounts of alcohol and Xanax and broke into a neighbor’s house, where he passed out. A neighbor found him unresponsive and called 911. Medical personnel resuscitated Jim, and he was later arrested.

¶8. Trial recommenced on July 11, 2011, and concluded on July 14. When trial resumed, Jim admitted to committing the criminal acts for which he was arrested on November 19, 2010, and he also admitted to adulterating drug-test samples he had provided back in May of 2010. Jim testified that being incarcerated had caused him to hit rock bottom and had truly changed his life for the better. He also stated that, despite his absence, his relationship with Johnny had not deteriorated and that he and Johnny still loved each other very much. He admitted that, before his incarceration, he thought he was doing everything he needed to do to stay sober, but that he still relapsed. He admitted that he was an alcoholic and said he believed he had been an addict his whole life. He also admitted that Johnny needed stability in his life and that C.J. Bright, Abby’s husband, was a good man who provided Johnny with that stability. But Jim also emphasized that, besides the July 5 incident, he had never committed a crime or been intoxicated around Johnny, and he agreed to abide by any visitation restrictions the court deemed necessary.

¶ 9. In addition to his own testimony, Jim provided testimony from his parents, his sister, and his girlfriend. All four acknowledged that Jim had a substance-abuse problem, but all four also believed he was on the road to recovery and that terminating his parental rights was not in Johnny’s best interest. Jim also called Dr. Sam Fleming, who was tendered and accepted as an expert in neuropsychology. Dr. Fleming diagnosed Jim with substance-induced bipolar disorder and testified that, with the proper treatment regimen, Jim could overcome his disorder and become a successful member of society. Notably, Dr. Fleming did not believe Jim had an alcohol addiction. But he did acknowledge that, based on Jim’s history, he “ha[d] a very poor prognosis for not using alcohol or drugs again.”

¶ 10. Abby, Bright, and Martin testified in favor of terminating Jim’s parental rights. Abby testified that Johnny needed a “steady father” in his life, not a father who reemerged every six months between bouts of drunkenness, rehabilitation, and incarceration. Bright testified that he wanted to adopt Johnny and would be able to care for him financially without the benefit of child support. Finally, Martin testified that he believed the grounds for termination were shown by clear and convincing evidence and that termination was appropriate because:

The minor child would clearly suffer emotional distress for the coming years if his father, [Jim], continued to travel in and out of his life at the convenience and scheduling of his limited periods of sobriety. The minor child would suffer emotional distress as the subject of continued ... litigation related to his father’s visitation ... I believe it’s in the best interest of the minor child to have a father who is stable, has sound moral judgment, who can contribute to his upbringing, to his well being; for example, the simple ability to be at liberty to talk to his teachers or take him to extracurricular activities and to impart sound wisdom. The last reason I would cite at this time that it would be in his best interest for a termination of parental rights and adoption is that in the event that the minor child’s mother should meet an untimely passing, a termination at this time of [Jim]’s parental rights and allowed adoption by Mr. Bright would provide the minor child stability, as his father would be present.

¶ 11. On September 8, 2011, the chancellor entered an order that: (1) terminated Jim’s parental rights; (2) awarded Dr. Chism and Terri grandparent visitation; and (3) provided that Jim could have contact with Johnny after Jim had been sober for a six-month period following his release from jail. Jim appealed, and the Court of Appeals affirmed the termination. See Chism v. Bright, 152 So.3d 324, 2013 WL 2166104 (Miss.Ct.App. May 21, 2013). This Court then granted Jim’s petition for certiorari.

STANDARD OF REVIEW

¶ 12. A chancellor’s findings of fact in a termination-of-parental-rights case are reviewed under the “manifest error/substantial credible evidence” test and will not be reversed so long as “credible proof exists to support the chancellor’s finding of fact by clear and convincing evidence.” W.A.S. v. A.L.G., 949 So.2d 31, 34 (Miss.2007). But questions of law such as statutory construction are subject to de novo review, and if a chancellor misapprehends the controlling rules of law or acts pursuant to a substantially erroneous view of the law, reversal is proper. Ethredge v. Yawn, 605 So.2d 761, 764 (Miss.1992).

LAW AND ANALYSIS

¶ 13. Parents have a “fundamental liberty interest ... in the care, custody, and management of their child” that cannot be taken away without clear and convincing evidence of the required statutory grounds for termination of parental rights. Santosky v. Kramer, 455 U.S. 745, 754, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982); see also J. Jackson and M. Miller, Encyclopedia of Mississippi Law § 78:39 (2002) (citing Miss.Code Ann. § 93-15-103(3)). State statutes providing for the termination of parental rights are subject to strict scrutiny and “[cjourts may not add to the enumerated grounds.” Deborah H. Bell, Bell on Mississippi Family Law 409 (2005) (citing Gunter v. Gray, 876 So.2d 315 (Miss.2004)); see also Rias v. Henderson, 342 So.2d 737, 739 (Miss.1977) (holding that statutes affecting fundamental constitutional rights are subject to strict scrutiny).

¶ 14. This Court has stated that “[b]e-cause parental rights are so important,” the “circumstances under which [those rights] can be terminated by the government” are “sharply limit[ed.]” Gunter v. Gray, 876 So.2d at 317. Title 93, Chapter 15 of the Mississippi Code sets out the requirements and procedure for the termination of parental rights. See Miss.Code Ann. §§ 93-15-101 through 93-15-111 (Rev. 2013).

¶ 15. As mentioned above, the chancellor found that Jim’s parental rights should be terminated because he exhibited “ongoing behavior which would make it impossible to return the minor child to his care and custody because he has a diagnosable condition, specifically alcohol and drug addiction, unlikely to change within a reasonable time which makes him unable to assume minimally, acceptable care of the child.... ” But neither the chancellor nor the Court of Appeals addressed subsection (1) of Section 93-15-103, which sets out three prerequisites that must be met before the court may invoke any specific ground for termination. Section 93-15-108(1) states:

(1) When a child has been removed from the home of its natural parents and cannot be returned to the home of his natural parents within a reasonable length of time because returning to the home would be damaging to the child or the parent is unable or unwilling to care for the child, relatives are not appropriate or are unavailable, and when adoption is in the best interest of the child, taking into account whether the adoption is needed to secure a stable placement for the child and the strength of the child’s bonds to his natural parents and the effect of future contacts between them, the grounds listed in subsections (2) and (3) of this section shall be considered as grounds for the termination of parental rights. The grounds may apply singly or in combination in any given case.

Miss.Code Ann. § 93-15-103(1) (Rev. 2013) (emphasis added). See also In re Dissolution of Marriage of Leverock and Hamby, 23 So.3d 424, 428 (Miss.2009). This Court previously has categorized the three prerequisites in subsection (1) as follows:

(1) the child has been removed from the home of its natural parents and cannot be returned to the home of his natural parents within a reasonable length of time or the parent is unable or unwilling to care for the child; (2) relatives are not appropriate or are unavailable; and (3) adoption is in the best interest of the child.

Leverock, 23 So.3d at 428 (emphasis added).

¶ 16. Here, it is undisputed that Johnny was not “removed from the home of his natural parents.” And we also do not find from this record that Jim is “unable or unwilling” to care for Johnny. First, the chancellor’s finding that Jim was “unable to assume minimally acceptable care” of Johnny is belied by the fact that he also allowed Jim to have contact with Johnny after he is sober for six months. Neither Abby nor anyone else objects to this. Simply because Jim might not be the best choice to be Johnny’s full-time custodial parent certainly does not mean that he is “unable to care” for Johnny. This Court “has never allowed termination of parental rights only because others may be better parents.” W.A.S., 949 So.2d at 35. Second, it is undisputed that Jim wants to be a part of Johnny’s life and that they have a very loving relationship, which evidences that Jim is not unwilling to care for him.

¶ 17. Moreover, we affirm the overarching premise that termination of parental rights is a last resort. This intent is evidenced by the Legislature in Section 93-15-103(4), which states:

Legal custody and guardianship by persons other than the parent as well as other permanent alternatives which end the supervision by the Department of Human Services should be considered as alternatives to the termination of parental rights, and these alternatives should be selected when, in the best interest of the child, parental contacts are desirable and it is possible to secure such placement without termination of parental rights.

Miss.Code Ann. § 93-15-103(4) (Rev. 2013) (emphasis added). In short, Abby has not proven the statutory prerequisites found in Section 93-15-103(1) that must be met. As such, we decline to address the specific ground for termination analyzed by the chancellor, or whether termination is in Johnny’s best interest. For these reasons, we reverse the termination order and remand this case to the Union County Chancery Court for further proceedings consistent with this opinion.

¶ 18. REVERSED AND REMANDED.

WALLER, C.J., DICKINSON AND RANDOLPH, P.JJ., KITCHENS, CHANDLER, PIERCE, KING AND COLEMAN, JJ., CONCUR.

      . We use a fictitious name for the minor child to protect his identity.

      . We refer to the parties and to some of the other members of the Chism family by first name to avoid confusion.

      . Dr. Chism's and Terri’s separate complaint for grandparents' visitation was consolidated with Abby’s countercomplaint to terminate Jim's parental rights while the trial was recessed from October 18, 2010, to July 11, 2011.

      . The chancellor found that Jim’s parental rights should be terminated under Mississippi Code Section 93 — 15—103(3)(e)(i), which states: “(3) Grounds for termination of parental rights shall be based on one or more of the following factors: (e) The parent exhibits ongoing behavior which would make it impossible to return the child to the parent's care and custody: ... (i) Because the parent has a diagnosable condition unlikely to change within a reasonable time such as alcohol or drug addiction, severe mental deficiencies or mental illness, or extreme physical incapacitation, which condition makes' the parent unable to assume minimally, acceptable care of the child[.]" Miss.Code Ann. § 93-15-103(3)(e)(i) (Rev. 2013).

      . To be clear, the chancellor was analyzing this under Section 93-15-103(3), instead of Section 93-15-103(1).


source: Caselaw Access Project

author: CARLTON, J.,

license: Public Domain

text:
    Jimmy Ray CHISM, Jr., Appellant v. Abby Gale Morris Chism BRIGHT, Appellee.
    No. 2011-CA-01472-COA.
    Court of Appeals of Mississippi.
    May 21, 2013.
    Rehearing Denied Nov. 26, 2013.

      Jak McGee Smith, Tupelo, Gregory M. Hunsucker, attorneys for appellant.
    J. Mark Shelton, Jana L. Dawson, attorneys for appellee.
    Before LEE, C.J., CARLTON and MAXWELL, JJ.
   CARLTON, J.,

for the Court:

¶ 1. Jimmy Ray Chism Jr. (Jim) appeals the Union County Chancery Court’s judgment terminating his parental rights pursuant to Mississippi Code Annotated section 93-15-103 (Rev.2004). The chancellor terminated Jim’s parental rights upon finding Jim unfit for any form of custody or visitation with his son, Johnny, and upon finding such termination served Johnny’s best interest due to Jim’s diagnosed condition that was unlikely to change -within a reasonable period of time, rendering him unable to assume minimally acceptable care of Johnny. Finding no error, we affirm.

¶ 2. On September 3, 2012, the appellant, Abby Gale Morris Chism Bright (Abby) filed a motion to strike portions of Jim’s brief, alleging that Jim included facts that occurred after the conclusion of the hearing and thus failed to constitute part of the record on appeal. Jim filed a response, asserting that he wanted this Court to take judicial notice of these particular facts. The facts at issue include (1) Jim’s statement in his brief that at the time of the appeal, he was participating in a drug-rehabilitation program and had been released from jail and (2) information taken from redacted portions of the expert witness’s report. We note that Jim acknowledged in his brief that he quoted from a redacted portion of the expert witness’s report. We thus grant Abby’s motion to strike portions of Jim’s brief referring to facts not established in the record below. Therefore, none of the facts at issue in the motion to strike were considered upon review or included in this opinion.

FACTS

¶ 3. The record shows that Abby and Jim married on October 17, 2003. Their marriage produced one child, Johnny, born on March 17, 2004. Jim and Abby divorced on March 10, 2008. Under the divorce decree, Jim and Abby shared joint legal custody of Johnny, with Abby receiving primary physical custody and Jim receiving liberal visitation.

¶ 4. On July 25, 2008, Abby filed an emergency petition for modification of custody. The chancellor entered an order modifying visitation, requiring Jim’s mother, Terri Chism, to supervise Jim’s visitation with Johnny. Then, on September 14, 2009, Jim filed a complaint for contempt, seeking to restore unsupervised visitation with Johnny and to require Abby to execute a quitclaim deed on the marital home the chancellor awarded him as part of the initial divorce decree.

¶ 5. On October 14, 2009, Abby filed a counter-complaint seeking termination of Jim’s parental rights, alleging a substantial erosion of the relationship between Johnny and Jim caused by Jim’s serious neglect of and lack of concern for Johnny. Abby submitted that she had remarried and her present husband, Charles Bright, desired to adopt Johnny following the successful termination of Jim’s parental rights. Pro-eedurally, Jim’s complaint for contempt, for restoration of his unsupervised vitiation, and for execution of a quitclaim deed were before the chancellor. Additionally, Abb/s counterclaim seeking termination of Jim’s parental rights was also before the chancellor.

¶ 6. A trial was held on October 18, 2010, continued on July 12-13, 2011, and concluded on July 14, 2011. The chancellor heard testimony from Jim; Abby; Abb/s husband, Charles; Jim’s father, Dr. Jimmy Chism Sr.; Jim’s mother, Terri; Jim’s sister, Katie Chism; Jim’s girlfriend, Reagan Graham; the guardian ad litem (GAL); and Dr. Samuel Fleming III, a licensed clinical neuropsychol'ogist, who provided the sole expert testimony.

¶ 7. Jim and Abby testified regarding a specific incident that occurred on July 5, 2008. The night before that date, Jim and Abby separately attended a party, where they both consumed alcohol. Jim admitted drinking to the point of intoxication, but Abby denied being intoxicated. On the morning of July 5, 2008, Jim woke up and picked up Johnny from his parents’ cabin. Jim then borrowed a car from a neighbor so that he could drive Johnny to McDonald’s. While they were in the drive-thru line at McDonald’s, with the car in park, a witness observed Jim asleep at the wheel and called the police. The police ticketed Jim for public drunkenness, and called Terri to pick Johnny up at McDonald’s.

¶ 8. Abby testified that in August 2008 she began dating Charles, who was twenty years old at the time. The GAL provided testimony that Abby purposely interfered with Jim’s visitation with Johnny.

¶ 9. Jim testified that as a result of not being able to see Johnny, he became depressed. Jim tested positive for marijuana use in May 2010, and he admitted that he used cocaine and marijuana in February, March, and April 2010. In May 2010, Jim became intoxicated and broke into his neighbor’s house. Afterwards, Jim checked into a treatment facility. Upon release in -October 2010, Jim claims he kept in touch with his sponsor, began attending church, and met his current girlfriend, Reagan. Jim admitted that on November 19, 2010, he left Reagan’s home and began drinking and ingested numerous Xanax pills. That night, Jim broke into the home of his parents’ neighbors. Another neighbor discovered Jim, who was unresponsive, and the neighbor called 911. Jim was arrested and remained incarcerated through the last day of trial. Jim admitted to numerous criminal charges, many of which were filed against him prior to his marriage to Abby and prior to the trial. Jim also admitted to tampering with test samples he provided for a drug screen.

¶ 10. While Jim was incarcerated, Dr. Fleming, a licensed neuropsychologist, met with Jim and conducted an interview and an assessment using the Minnesota Multi-phasic Personality Inventory, and ultimately diagnosed Jim with bipolar disorder related to Jim’s drug and alcohol use. In his report, which was admitted into evidence, Dr. Fleming opined that “with appropriate medication and therapy, [Jim] is capable of becoming a contributing member of society, and it will be possible for [Jim] to be an effective parent to his son.” Dr. Fleming also opined that he did not believe Jim had an alcohol addiction, because, to his knowledge, Jim had not “gone through withdrawals.”

¶ 11. Abby testified that she believed her new husband, Charles, would serve as a steady and better father to Johnny than Jim. Abby stated that she felt it was unhealthy for Johnny that Jim kept “popping in and out of rehab” and “in and out of jail.” Abby admitted that no erosion of the relationship between Jim and Johnny had occurred, and testified that even if the chancellor terminated Jim’s parental rights, she would have no problem with Jim visiting Johnny in the presence of Jim’s parents, as long as Jim remained sober for six months.

¶ 12. The GAL ultimately recommended termination of Jim’s parental rights based upon his understanding that termination was proper if it was impossible for Jim to exercise anything more than supervised visitation. The GAL explained that his interpretation of the statutory phrase “minimally acceptable care” was unsupervised visitation.

¶ 13. On September 8, 2011, the chancellor entered an opinion and judgment terminating Jim’s parental rights and awarding grandparent visitation to Jim’s parents. The chancellor found that “a review of Jim’s history shows a troubling pattern of substance abuse increasing in intensity, risk, and severity of consequences” and determined that “[Jim] exhibits ongoing behavior which would make it impossible to return the minor child to his care and custody because he has a diagnosable condition, specifically alcohol and drug addiction, unlikely to change within a reasonable time.”

¶ 14. Jim now appeals, asserting the following assignments of error, which we quote from Jim’s appellate brief:

Whether the lower court erred'by terminating Jim’s parental rights where the evidence was undisputed that Jim and Johnny had a good relationship, that Jim’s visitation with Johnny had never caused any problems for Johnnyf,] and that other than possibly a single incident where Jim fell asleep in the drive-thru of a McDonald’s, there was no evidence that Jim had ever put Johnny in harm’s way[.]
Whether the lower court erred in terminating Jim’s parental rights when the moving party, Abby, failed to prove by clear and convincing evidence that it was impossible for Jim and Johnny to have a relationship in which Jim could exercise minimally acceptable care[.]
Whether the lower court erred by basing its decision to terminate Jim’s parental rights in part upon Abby’s speculative “fear” as to what might happen if Jim’s rights were not terminated on the one hand, while Abby freely admitted on the other hand that she would have no objection to Jim spending supervised time with Johnny after certain conditions were met[.]
Whether the lower court erred by finding that Jim, who had an undiagnosed bipolar disorder until after these proceedings began and made very substantial efforts to rehabilitate himself, including inpatient treatment, and is now successfully participating in the Union County Drug Court program, had a diagnosable alcohol and drug addiction, unlikely to change within a reasonable time, in contradiction to the testimony of the sole expert, the neuropsychologist who first diagnosed Jim with bipolar disorder.
Whether the lower court’s decision to terminate Jim’s parental rights is erroneous as a matter of law[.]
Whether the lower court’s decision to terminate Jim’s parental rights is based upon sufficient evidence[.]
Whether the lower court erred by basing its decision to terminate Jim’s parental rights in part upon its view that Jim’s ex-wife’s twenty-three[-]year[-] old husband would make a better father.

For the purposes of clarity, we will combine these issues in our discussion.

STANDARD OF REVIEW

¶ 15. “Appellate review in a case to terminate parental rights is limited to reviewing the chancellor’s findings under the manifest error/substantial credible evidence test.” A.C.W. v. J.C.W., 957 So.2d 1042, 1044 (¶ 10) (Miss.Ct.App.2007) (citing S.N.C. v. J.R.D., 755 So.2d 1077, 1081 (¶ 11) (Miss.2000)). “On appeal, the court will ask whether there was ‘credible proof sufficient for the trier of fact to find abandonment by a parent based on clear and convincing evidence.’ ” Id. However, we review questions of law under a de novo standard. Id.

DISCUSSION

¶ 16. Jim argues that the chancellor erred in terminating his parental rights. Specifically, he asserts that Abby failed to provide clear and convincing evidence showing that he exhibited ongoing behavior that would make it impossible to return Johnny to Jim’s care and custody. Jim also argues that the chancellor’s decision to terminate Jim’s parental rights lacked support by substantial evidence.

¶ 17. Mississippi Code Annotated section 93-15-103(3) lists various grounds for involuntary termination of parental rights. This statute clarifies that any one factor listed can justify the termination of parental rights; the party seeking termination of parental rights must prove “at least one of the grounds enumerated” by clear and convincing evidence. S.R.B.R. v. Harrison Cnty. Dep’t of Human Servs., 798 So.2d 437, 443 (¶24) (Miss.2001); Miss.Code Ann. § 93-15-103(3); Miss. Code Ann. § 93-15-103(3). Even where the ground for termination is proven by clear and convincing evidence, the chancellor must still consider whether “termination is in the best interests of the child.” S.R.B.R., 798 So.2d at 443 (¶24). A chancellor’s finding that “the best interest of the [child] favors termination” must be supported by “substantial evidence.” J.C.N.F. v. Stone Cnty.. Dep’t of Human Servs., 996 So.2d 762, 767 (¶17) (Miss.2008).

¶ 18. In the present case, the chancellor cited section 93-15-103(3)(e)(i) as the basis for his decision to terminate Jim’s parental rights. Section 93-15-103(3)(e)(i) allows for the termination of parental rights if:

(e) The parent exhibits ongoing behavior which would make it impossible to return the child to the parent’s care and custody:
(i) Because the parent has a diagnosable condition unlikely to change within a reasonable time such as alcohol or drug addiction, severe mental deficiencies or mental illness, or extreme physical incapacitation, which condition makes the parent unable to assume minimally[ ] acceptable care of the child[.]

¶ 19. The chancellor stated that “[a] review of Jim’s history shows a troubling pattern of substance abuse increasing in intensity, risk[,] and severity of consequences.” The chancellor also found that Jim

exhibits ongoing behavior which would make it impossible to return [Johnny] to his care and custody because he has a diagnosable condition, specifically alcohol and drug addiction, unlikely to change within a reasonable time which makes him unable to assume minimally[] acceptable care of [Johnny] and constituting grounds for termination of his parental rights.

¶ 20. The chancellor concluded:

[B]ased on the testimony and evidence presented to the court, and the court’s due consideration to the guardian ad litem’s independent report and recommendation to the court and the best interest of [Johnny], ... the parental rights of [Jim] should be terminated so that a permanent and stable father may assume the role[,] and ... [Johnny] will be eligible for adoption.

¶ 21. The supreme court has estab-' lished that “[an appellate court] will affirm a chancellor’s findings of fact if there is substantial evidence to support them[.]” J.C.N.F., 996 So.2d at 765 (¶ 10) (citation omitted). “This standard of review is highly deferential to the chancellor, who has the opportunity to hear all the testimony and observe the demeanor of all witnesses firsthand.” Id. at 766 (¶ 10),

¶ 22. In turning to examine the record before us, we again acknowledge that the chancellor heard testimony from Jim; Abby; Abby’s husband, Charles; Jim’s father, Dr. Chism; Jim’s mother, Terri; Jim’s sister, Katie; Jim’s girlfriend, Reagan; Jonathan Martin, the GAL; and Dr. Fleming, a licensed clinical neuropsychologist.

¶ 23. During the hearing, Jim admitted to consuming alcohol frequently during the period September 2008 and on July 15, 2009, and he acknowledged that he has suffered from an alcohol addiction since 2005. Jim testified that he attempted to enlist in the United States Army, but the Army rejected him because of an arrest for driving under the influence. Jim also admitted to several criminal charges, but he testified that Johnny was not present for any encounter with law enforcement other than on July 5, 2008. Jim testified that he sought alcohol treatment in July 2009, May 2010, and June 2010.

¶ 24. However, Jim admitted to testing positive for marijuana after a urine test in May 2010. Jim also testified that he used cocaine and marijuana in February, March, and April 2010, during the course of the present litigation. He further admitted to using drugs and alcohol again in November 2010, and he acknowledged the November 19, 2010 incident where he broke into his next-door neighbor’s home, where the neighbors later found him unresponsive. Jim was arrested as a result of the incident, and remained incarcerated during the hearing. Jim testified that Dr. Fleming recently diagnosed him as bipolar, and Jim stated that with proper treatment, he could control himself.

1125. In his order, the chancellor acknowledged Jim’s testimony that he loves Johnny but that he struggles to stay sober. The chancellor also noted Dr. Chism’s testimony that Johnny and Jim “worship” one another, as well as testimony from Jim’s sister, mother, and girlfriend expressing their belief that Jim would remain sober and that Jim posed no threat to Johnny.

¶ 26. The chancellor’s order also reflects that Abby testified that although she frequently drank alcohol to the point of intoxication during her marriage to Jim and took Xanax and Valium during that time, she has used no. illegal drugs since her divorce from Jim. The chancellor noted that Abby “expressed sorrow for her past lifestyle.” Abby testified that she did not find it to be in Johnny’s best interest for him to have visitation with Jim, citing Johnny’s bad attitude and bad behavior after he returns from visits with Jim.

¶ 27. The chancellor also heard testimony from Dr. Fleming, whom the chancellor described in his order as “a licensed neuropsychologist whose practice includes patients in need of substance abuse treatment.” Dr. Fleming opined that Jim possessed no alcohol addiction because he has never suffered withdrawal symptoms. However, as discussed previously, Dr. Fleming met with Jim and performed tests during April and May 2011, after which he diagnosed Jim as bipolar, primarily depressive rather than manic. The chancellor noted that “chronic chemical abuse” was the possible primary cause of Jim’s bipolar disorder. Dr. Fleming testified that Jim’s parents likely enabled Jim’s condition. Dr. Fleming opined, and the chancellor’s order reflects, that if Jim followed his treatment plan, “there is no reason to think that Jim could not completely change.”

¶28. The chancellor’s order reflects that the GAL fully participated in the hearing. The transcript also reflects that the GAL participated in the examination of all witnesses that offered testimony during the hearing. The GAL testified that he received his appointment as GAL for Johnny on November 20, 2009, and that in performing his duties, he interviewed the parties on many occasions, and also interviewed their witnesses. The GAL also met with Johnny’s court-appointed counselor and Johnny’s teacher. The GAL met with the director of the National Council on Alcoholism and Drug Dependence in Tupelo, Mississippi, who administered •& substance abuse screening on Jim in May 2010 and accordingly recommended inpatient treatment.

¶ 29. The GAL testified that he did not believe it was in Johnny’s best interest to have a father figure who was absent for periods of time, and he opined that Jim had failed to make every available effort to see Johnny during the period between July 4, 2008 and October 14, 2009 (the date Abby filed the complaint seeking termination of Jim’s parental rights). The GAL noted that Jim “has had an inability to secure and maintain meaningful employment throughout his adult life,” and that as a result, “his parents have paid his court-ordered child support on his behalf.” The GAL, citing section 93-15-103(3), opined that the record contains “more than clear and convincing evidence” to show that Jim “has a diagnosable condition of alcohol and drug addiction, unlikely to change within a reasonable time, and that condition makes him unable to assume minimally] acceptable care of [Johnny].” The GAL testified that he believed “the statutory requirements have been overwhelmingly met as to grounds for termination,” and that Johnny’s best interest required “termination be ordered.” The GAL clarified that his interpretation of the phrase “minimal acceptable care” in section 93-15-103(3) was that it meant unsupervised visitation.

¶ 30. The chancellor also acknowledged the August 18, 2008 order modifying visitation, imposed as a result of the July 5, 2008 incident where Jim drove to McDonald’s while intoxicated, with Johnny in the car, and then fell asleep at the drive-thru. The police arrived and arrested Jim in front of Johnny. That order provided that Terri would strictly supervise any visitation between Jim and Johnny. Jim testified at the hearing that “he did not believe [Johnny] was in any danger” during the incident.

¶ 31. After hearing the testimony of the parties, witnesses, and GAL, the chancellor ultimately found that pursuant to section 93-15-103(3):

[Jim] exhibited] ongoing behavior which would make it impossible to return [Johnny] to his care and custody because he has a diagnosable condition, specifically alcohol and drug addiction, unlikely to change within a reasonable time which makes him unable to assume minimally[ ] acceptable care of [Johnny] and constituting grounds for termination of his parental rights.

The chancellor then ordered the termination of Jim’s parental rights.

¶ 32. After our review of the record, we find that the testimony of the parties and witnesses, as well as the GAL’s report and recommendation, supports the chancellor’s finding that Abby proved “at least one of the grounds enumerated” in section 93-15-103(3) by clear and convincing evidence. S.R.B.R, 798 So.2d at 443 (¶24). The chancellor further found the termination of Jim’s parental rights to be in Johnny’s best interest “so that a permanent and stable father may assume the role.” See id. Upon our review, and acknowledging our standard of review, we accordingly find “credible proof’ sufficient to support the chancellor’s decision finding that Abby proved one of the grounds enumerated in section 93-15-103(3) for termination of parental rights by clear and convincing evidence. We therefore find no abuse of discretion and affirm the judgment of the chancellor.

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

LEE, C.J., GRIFFIS, P.J., BARNES, ISHEE, MAXWELL AND FAIR, JJ„ CONCUR. IRVING, P.J., AND JAMES, J., DISSENT WITHOUT SEPARATE WRITTEN OPINION. ROBERTS, J., NOT PARTICIPATING.

      . We use fictitious names as necessary to protect the minor child's identity.

      . Miss.Code Ann. § 93-15-103(3).

      . The transcript reflects that Jim and his sister both testified that they saw Abby intoxicated the night of the party.

      . The record reflects that the chancellor required Jim’s counsel to redact portions of Dr. Fleming’s report.

      . The chancellor acknowledged that the GAL recommended that the grandparents’ visitation be without restriction. However, the chancellor stated that since “Dr. Chism periodically engaged in [the consumption of marijuana with Jim,] an illegal activity!,]” the court required Terri to be present during any visitation with Johnny. We further note that the chancellor’s award of grandparent visitation is not an issue on appeal.

      . The chancellor’s judgment establishes that the GAL "is a practicing attorney, qualified as a[GAL], and is frequently appointed to serve in that capacity.”

      . A.C.W., 957 So.2d at 1044 (¶ 10) (citation omitted) (manifest-error/substantial-credible evidence standard of appellate review is applied to chancellor’s findings in a termination-of-parental rights case).


author: ISHEE, J.,

text:
    Anthony CAROTHERS a/k/a Anthony Carrothers a/k/a Anthony Carruthers a/k/a Amp, Appellant v. STATE of Mississippi, Appellee.
    No. 2012-KA-00231-COA.
    Court of Appeals of Mississippi.
    Oct. 29, 2013.
    Rehearing Denied May 6, 2014.

      Office of State Public Defender by George T. Holmes, Phillip Broadhead, attorneys for appellant.
    Office of the Attorney General by Scott Stuart, attorney for appellee.
    Before LEE, C.J., BARNES and ISHEE, JJ.
   ISHEE, J.,

for the Court:

¶ 1. In July 2011, a grand jury in Lafayette County, Mississippi, indicted Anthony Carothers on two counts of aggravated assault. The indictment charged Caroth-ers with having shot at Sheena Carothers.' It also charged that he later slammed her head into the pavement, punched, and kicked her. After a trial took place in the Lafayette County Circuit Court, Carothers was convicted óf both counts of aggravated assault. The circuit judge sentenced him on each count to twenty years, with five years to serve and fifteen years suspended, with the sentences to run consecutively, all in the custody of the Mississippi Department of Corrections (MDOC). Car-others filed a motion for a judgement notwithstanding the verdict (JNOV) or, in the alternative,. a new trial. The motion was denied. Aggrieved, Carothers appeals. Finding reversible error, we reverse and remand this case for a new trial consistent with the findings of this opinion.

STATEMENT OF FACTS

¶ 2. Carothers and Sheena are half siblings. The record indicates that Carothers used to take care of Sheena’s children often when she needed help. On March 18, 2011, Sheena took her children to Car-others’s house for him to keep them while she went to a casino. Sheena was accompanied in her vehicle by her friend, Ta-nesshia Tyson, and Tyson’s boyfriend, Jesse Booker. They entered Carothers’s house, and Carothers indicated to Sheena that he was unable to watch the children at that time. An argument ensued between Sheena and Carothers. The record then varies as to the subsequent series of events.

¶ 3. Sheena exited the home, followed by Carothers. Tyson walked out behind Car-others. Tyson told authorities that she immediately noticed that Carothers was holding a gun. Carothers, who testified on his own behalf at trial, disputes this fact. According to Carothers, he eventually agreed to keep the children after Sheena went into a rage. He followed Sheena out of the home, unarmed, and attempted to get her young son out of the back seat. He claims Sheena then .grabbed a heavy tool from inside her car and hurled it at him. He asserts that she missed him, but the tool broke her car window. He stated that she then got in her vehicle and started to back out of his driveway at a high rate of speed with the small boy in the back seat; he claims he chased them on foot but eventually lost sight of them. Carothers testified that once the vehicle was out of his sight, he returned to his home to care for the other children who were inside. Carothers opines that Sheena’s erratic driving at high speeds on a curvy roadway must have caused her to lose control of her vehicle and crash her car.

¶ 4. Conversely, Tyson claimed Caroth-ers chased Sheena out of his house with a gun, threatening to shoot her. She claimed Sheena then got in her vehicle and sped away from the house with one of the small children in the back seat. Tyson claimed that Carothers shot at the vehicle, breaking the car’s -window. Tyson also asserted that she witnessed Carothers get in his truck and race after Sheena.

¶ 5. The Lafayette County Sheriffs Department was contacted regarding the shooting. According to Investigator Jarett Bundren, who testified that he spoke with Sheena in the hospital immediately after the incident, Sheena told him that after Carothers started chasing her in his truck, he hit her vehicie several times before she collided with a truck head-on and landed in a field. He asserted that she also told him that after her vehicle had stopped, she got out of the car and started running. Investigator Bundren testified that Sheena stated Carothers soon caught up to her and began assaulting her by slamming her face into the pavement, punching her, and kicking her.

¶ 6. Investigator Bundren also observed Sheena’s injuries. He stated they appeared to be severe. He testified that medical staff informed him Sheena had suffered a lacerated liver and had shattered her kidney. Investigator Bundren stated that Sheena suffered trauma to her face, including an eye that was swollen shut. However, when Investigator Bun-dren returned to the hospital the following morning to have Sheena give them a formal statement and sign a release for them to review her medical records, Sheena informed them that she would do neither. She also told them that she. was the cause of the incident, not Carothers.

¶ 7. Sheena testified during both a bond hearing and at trial that the story told by Investigator Bundren was false. She claimed she had never spoken with Investigator Bundren. In her recounting of the incident in question, she asserted that she flew into an unjustified rage when Caroth-ers told her he would be unable to watch her children. She testified that after a heated argument with Carothers at his house, she threw a heavy tool at him while he was attempting to get her young son out of the vehicle, and that the tool broke her car window. She stated that she then sped away from the home, lost control of her vehicle while turning into a deep curve, hit a parked vehicle head-on, and was subsequently injured in the crash since she was not wearing a seatbelt.

¶ 8. Carothers was indicted on two counts of aggravated assault stemming from the incident. A trial took place in October 2011. The State called several witnesses, including Tyson, Investigator Bundren, and Sheena. Shortly after the State commenced its direct examination of Sheena, the prosecution requested that Sheena be treated as a hostile witness. The defense objected on the ground that “just because [the State’s attorneys] don’t like her responses!,] that doesn’t mean she’s being hostile. She isn’t being hostile. She’s just answering the questions.” The State responded by stating, “It is hostility. It’s about to get ugly.” The circuit court deemed Sheena a hostile witness, and the examination continued.

¶ 9. At the close of trial, the jury returned a guilty verdict on both counts. Carothers filed a motion for a JNOV or, in the alternative, a new trial. The motion was denied, and Carothers was sentenced on each count to twenty years, with fifteen years suspended and five years to serve and with the sentences to run consecutively, all in the custody of the MDOC. On appeal, Carothers asserts the following: (1) the circuit judge erred by allowing the State to treat Sheena as a hostile witness; (2) the circuit court erred by denying his motion for a JNOV or, in the alternative, a new trial; (3) the circuit court erred by refusing certain jury instructions; and (4) the circuit court erred by allowing certain evidence to be introduced.

DISCUSSION

¶ 10. Although Carothers raises several issues on appeal, we find his first issue to be dispositive. We agree with Carothers’s initial argument that the circuit court improperly allowed the State to treat Sheena as a hostile witness. Issues of this nature are reviewed under an abuse-of-discretion standard. See Young v. State, 99 So.3d 189, 193 (¶ 14) (Miss.Ct.App.2011) (citation omitted); McFarland v. State, 707 So.2d 166, 175 (¶ 30) (Miss.1997) (citations omitted). We find the circuit court abused its discretion and committed reversible error by classifying Sheena as a hostile witness. Since this warrants a new trial, we decline to address the other claims raised by Carothers.

¶ 11. Carothers asserts that the State failed to lay the proper foundation to show that Sheena was an adverse or hostile witness. Sheena had only just begun answering the State’s questions regarding what had happened during the incident in question when the State requested that she be deemed hostile. The following dialogue ensued:

The State: Your Honor, permission to treat the witness as hostile.
The Court: Do you want to be heard?
The Defense: I don’t believe there’s been any hostility shown to the district attorney’s office.
The State: Your Honor, this is going exactly the same way it did at the bond hearing.
The Defense: Your Honor, can we approach the bench?
(THE FOLLOWING TOOK PLACE AT THE BENCH OUTSIDE THE HEARING OF THE JURY)
The Defense: Your Honor, just because they don’t like her responses[,] that doesn’t mean she’s being hostile. She isn’t being hostile. She’s just answering the questions.
The State: Your Honor, the fact that this is the exact testimony she gave when she was [the Defense’s] witness at the bond hearing shows—
The Defense: She’s consistent.
The State: It is hostility. It’s about to get ugly.
The Defense: She’s been consistent.
The State: Consistent to [defense counsel’s standards]. She’s not being consistent.
The Court: I think she’s clearly adverse. It doesn’t mean she’s lying, but she’s not telling the story [the investigators] tell. I’m going to allow [the State] to treat her adverse [sic].

The State then continued its direct examination of Sheena by impeaching her with prior statements she had made to Investigator Bundren. These statements contradicted her testimony at Carothers’s bond hearing, which took place in April 2011, as well as her testimony at trial prior to being deemed a hostile witness.

¶ 12. This Court addressed a similar issue recently in James v. State, 124 So.3d 693 (Miss.Ct.App.2013). There, we recognized that “[b]efore a party will be authorized to introduce[,] for impeachment purposes[,] an unsworn pretrial inconsistent statement of his own witness, it will be necessary thát he show surprise or unexpected hostility.” Id. at 699 (¶ 17) (quoting Wilkins v. State, 603 So.2d 309, 322 (Miss.1992)). Indeed, it is well established that a proponent must show surprise or unexpected hostility before it may impeach its own witness. See Osborne v. State, 54 So.3d 841, 845 (¶ 14) (Miss.2011); Wharton v. State, 734 So.2d 985, 986-87 (¶ 7) (Miss.1998); Whitehead v. State, 967 So.2d 56, 67 (¶ 21) (Miss.Ct.App.2007).

¶ 13. Carothers asserts that the State was not surprised by Sheena’s responses to the questions. He argues that the State cannot claim surprise or unexpected hostility because the State even admitted to the circuit court that “this is the exact testimony she gave when she was [the Defense’s] witness at the bond hearing.” Sheena did, in fact, testify at Carothers’s bond hearing in April 2011. A review of the record indicates that Sheena’s testimony from the bond hearing essentially mirrors her testimony at trial. Additionally, no blatant hostile behavior had been exhibited at the trial prior to the State’s request that Sheena be treated as a hostile witness. We find that the State did not lay the proper foundation for proving that Sheena was a hostile witness. ■ Accordingly, the circuit court committed error in deeming her an adverse or hostile witness.

¶ 14. However, in order to constitute reversible error, the error must also be prejudicial. “[T]o find harmless error, we look for proof of guilt that is overwhelming.” James, 124 So.3d at 700 (¶ 19) (citations omitted).

¶ 15. Here, the circuit court’s decision to treat Sheena as a hostile witness opened the door for the prosecution to introduce impeachment evidence against her. The prosecution was therefore able to contradict one of the primary witnesses whose testimony favored Carothers. Had the impeachment evidence not been introduced, her testimony would have corroborated Carothers’s testimony without any mention of her prior inconsistent statements.

¶ 16. Additionally, although the State produced several witnesses, including Tyson and Investigator Bundren, to testify against Carothers, we cannot say that the evidence of guilt was overwhelming. While Tyson witnessed the alleged shooting and Carothers’s alleged car chase with Sheena, Carothers’s and Sheena’s testimonies both contradict Tyson’s. Also, no one but Sheena actually witnessed the car crash. Without the impeachment evidence against Sheena, we cannot find that the proof of Carothers’s guilt was overwhelming. As such, we hold that the circuit court committed reversible error. Therefore, the circuit court’s judgment is reversed, and this case is remanded for a new trial consistent with this opinion.

¶ 17. THE JUDGMENT OF THE LAFAYETTE COUNTY CIRCUIT COURT IS REVERSED, AND THIS CASE IS REMANDED FOR A NEW TRIAL. ALL COSTS OF THIS APPEAL ARE ASSESSED TO LAFAYETTE COUNTY.

LEE, C.J., GRIFFIS, P.J., BARNES, ROBERTS, FAIR AND JAMES, JJ., CONCUR. IRVING, P.J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION. CARLTON AND MAXWELL, JJ., DISSENT WITHOUT SEPARATE WRITTEN OPINION.


author: MAXWELL, J.,

text:
    In the Interest of a Minor, V.D.W. J.S.W., Appellant v. A.W.R. and T.J.S., Appellees.
    No. 2012-CA-00884-COA.
    Court of Appeals of Mississippi.
    Dec. 3, 2013.
    Rehearing Denied June 3, 2014.
    Rehearing Denied June 10, 2014.

      S. Christopher Farris, attorney for appellant.
    Robert R. Marshall, attorney for appel-lees.
    Before LEE, C.J., MAXWELL and FAIR, JJ.
   MAXWELL, J.,

for the Court:

¶ 1. In a typical custody case between a natural parent and a third party, the doctrine of in loco parentis cannot be used by the third party to rebut the natural-parent presumption. But this is not a typical custody case.

¶2. Instead,.this is a three-way custody action between (1) the natural mother, (2) the mother’s ex-husband, who had supported, cared, and treated the child as his own, and (3) the man who turned out to be the child’s biological father. And in this “very limited, unique situation,” the fact the ex-husband stood in loco parentis by his fatherly actions towards the child does rebut the natural-parent presumption. Thus, the chancellor erred by not considering the ex-husband on equal footing with his ex-wife and the biological father when determining which of the three should be awarded custody. We reverse the judgment awarding the ex-wife, custody, and we remand this case for the chancery court to conduct an Albright analysis that takes into consideration whether it would be in the child’s best interest for the ex-husband to be awarded custody.

Background Facts and Procedural History

I. Divorce and Original Custody Agreement

¶ 3. Jake and Anne divorced in 2009. During their five-year marriage, two children were born — Vanessa, born five months after Jake and Anne married, and Brett, born a year and a half later. As part of their custody, support, and property-settlement agreement, both Jake and Anne received joint custody of the two children, alternating physical custody on a weekly basis.

¶ 4. But after ten months, both parties were dissatisfied with this arrangement. Anne filed a complaint for support, and Jake countered with a complaint for an emergency change of custody in which he alleged Anne was trying to move out-of-state with the children. The chancellor entered a temporary order preventing either party from moving until a final custody decision could be made.

II. Paternity and Custody Request

¶ 5. Before the custody hearing could be held, Tommie filed a motion for custody, visitation, and paternity of Vanessa, after DNA testing had revealed that he was her biological father.

¶ 6. Prior to marrying, Anne and Jake had an intimate relationship. But Anne had a one-night stand with Tommie. When Tommie learned Anne was pregnant, based on the timing, he suspected the child might be his. But he also knew that Anne had been romantically involved with Jake. Anne and Jake married in June 2004, when Anne was seventeen weeks pregnant. And Jake was under the impression the child was his, so he was there for the child’s delivery, cut the umbilical cord, and helped name her.

¶ 7. But in March 2007, when Vanessa was almost three years old, the couple received a phone message from Tommie’s mother. The message said Tommie was about to deploy overseas for military duty. Tommie’s mother said she had heard Anne had a baby in 2004 and wondered if it was Tommie’s.

¶ 8. Anne vehemently denied that Vanessa was Tommie’s child. But Jake decided to have a paternity test, which ruled him out as Vanessa’s biological father. Despite knowing in March 2007 he was not Vanessa’s biological father, Jake and Anne decided Jake would continue to raise Vanessa as his own daughter. But Jake and Anne’s marriage went downhill after that, ending in divorce two and a half years later.

¶ 9. While the post-divorce support and custody issues were pending, Anne contacted Tommie about his likely being Vanessa’s biological father. And after the DNA test confirmed this, Tommie filed his motion for custody, visitation, and paternity. The chancellor then heard four days of testimony, scattered between April 2011 and March 2012, concerning Jake’s, Anne’s, and Tommie’s custody requests.

III. Chancellor’s Custody Award

¶ 10. Because Tommie is the biological father of Vanessa, the chancellor found Tommie was entitled to the natural-parent presumption. Mississippi law presumes that, as between a natural parent and a third party, such as a grandparent, it is in the best interest of the child for the natural parent to be awarded custody. Hamilton v. Houston, 100 So.3d 1005, 1009 (¶ 13) (Miss.Ct.App.2012) (citations omitted). In this three-way custody dispute, the chancellor designated Anne and Tommie as the natural parents and Jake as a third party. And while the chancellor found Jake stood in loco parentis, based on his raising Vanessa as his own, the chancellor found that Jake’s in loco parentis status could not rebut the natural-parent presumption.

¶ 11. Thus, the chancellor only considered whether Anne or Tommie should be awarded custody. After applying the factors under Albright, the chancellor determined it was in Vanessa’s best interest that Anne be awarded custody and Tommie visitation. Tommie was also ordered to pay child support.

¶ 12. Though dubbing Jake a third party for custody purposes, the chancellor found Jake’s in loco parentis status did entitle him to visitation. Because the chancellor found that phasing Jake out of Vanessa’s life would have been detrimental to her, the chancellor awarded Jake visitation commensurate with Tommie’s.

IV. Notice of Appeal

¶ 13. The judgment awarding Anne custody and Tommie and Jake visitation was entered March 23, 2012. In their briefs, Anne and Tommie assert Jake’s notice of appeal from this judgment was untimely because the notice was not filed until June 1, 2012. But in making this assertion, they fail to consider the effect of Jake’s Rule 59 motion on the time limit to file a notice of appeal.

¶ 14. Under Mississippi Rule of Appellate Procedure 4(a), “[e Except as provided in Rules ¡¡.(d) and k(e),” the notice of appeal shall be filed “within 30 days after the date of entry of the judgment or order appealed from.” (Emphasis added). And under Rule 4(d), “[i]f any party files a timely motion of a type specified immediately below the time for appeal for all parties runs from the entry of the order disposing of the last such motion outstanding.” Among those specified motions is a motion to alter or amend the judgment under Rule 59(e) of the Mississippi Rules of Civil Procedure. M.R.A.P. 4(d).

¶ 15. On March 29, 2012, Jake filed a Rule 59(e) motion to alter or amend. This motion was timely because it was “filed not later than ten days after entry of the judgment.” M.R.C.P. 59(e). Therefore, Jake’s thirty days to file a notice of appeal of the March 23, 2012 judgment did not begin until the chancellor denied Jake’s motion on May 14, 2012. See M.R.A.P. 4(d). So Jake’s notice of appeal filed on June 1, 2012, seeking appellate review of the March 23, 2012 judgment, was timely.

Discussion

¶ 16. In an appeal of a child-custody determination, our standard of review is narrow. We will not reverse unless the chancellor made factual findings that are manifestly wrong or clearly erroneous or applied an improper legal standard. Mabus v. Mabus, 847 So.2d 815, 818 (¶ 8) (Miss.2003). Here, we find no fault with the chancellor’s factual findings. In fact, it is because of the chancellor’s specific findings concerning- Jake’s relationship to Vanessa that we must find that the chancellor applied the wrong legal standard.

¶ 17. The chancellor found that Jake stood in loco parentis to Vanessa; that he had supported, cared, and treated her as his own child, even after he learned about her biological parentage; and that he had shared her custody and expenses after the divorce. This put Jake in a “very limited, unique situation[]” where his supportive actions towards the child — versus the natural parent’s harmful actions — rebutted the natural-parent presumption. In re Smith, 97 So.3d 43, 47 (¶ 11) (Miss.2012).

I. Natural-Parent Presumption

¶ 18. This is certainly a unique custody dispute. More typically, the custody dispute is between the two natural parents or between a parent and non-parent, such as a grandparent. In a child-custody determination between two natural parents, the chancellor considers the factors under Albright to determine which natural parent custody should be awarded custody, based on the best interest of the child. Lucas v. Hendrix, 92 So.3d 699, 705 (¶ 17) (Miss.Ct.App.2012) (citing Albright v. Albright, 437 So.2d 1003, 1005 (Miss.1983)). However, in a child-custody determination between a natural parent and a third party, such as a grandparent, the law presumes that it is in the best interest of the child for the natural parent to have custody. Id. at 705-06 (¶ 17) (citing McKee v. Flynt, 630 So.2d 44, 47 (Miss.1993)); see Lorenz v. Strait, 987 So.2d 427, 434 (¶ 41) (Miss.2008) (holding that, because “[grandparents have no legal right [to] custody of a grandchild, as against a natural parent,” the natural-parent presumption applies in custody cases between grandparents and natural parents).

¶ 19. The natural-parent presumption is “not unassailable.” In re Custody of Brown, 66 So.3d 726, 728 (¶ 10) (Miss.Ct.App.2011) (citing Vaughn v. Davis, 36 So.3d 1261, 1264 (¶ 10) (Miss.2010)). But for the third party to rebut this presumption, he must clearly show “that (1) the parent has abandoned the child; (2) the parent has deserted the child; (3) the parent’s conduct is so immoral as to be detrimental to the child; or (4) the parent is unfit, mentally or otherwise, to have custody.” In re Smith, 97 So.3d at 46 (¶ 9) (citing Vaughn, 36 So.3d at 1264-65 (¶¶ 10-13); In re Dissolution of Marriage of Leverock & Hamby, 23 So.3d 424, 429-30 (¶ 20) (Miss.2009); Carter v. Taylor, 611 So.2d 874, 876 (Miss.1992)).

¶ 20. In this case, applying precedents concerning custody determinations between a natural parent and a grandparent, the chancellor categorized Jake as a third party. And because the chancellor also found Jake could not show Anne or Tommie had abandoned or deserted Vanessa, acted so immorally as to be detrimental to Vanessa, or was otherwise unfit, the chancellor imposed the legal presumption that it was in Vanessa’s best interest for Anne or Tommie to be awarded custody.

¶ 21. But there is a body of more relevant cases dealing with this very scenario — when a husband acts under the assumption that he is the father of the child his wife bore. And in these cases, the doctrine of in loco parentis has been used to put the presumed father on equal footing with the natural parent.

II. In Loco Parentis

¶ 22. In Griffith v. Pell, 881 So.2d 184, 185 (¶¶2-3) (Miss.2004), it came to light during divorce proceedings that the husband was not the biological father of the child born to the marriage. The chancellor granted partial summary judgment to the wife, finding the husband had no right to custody of the child. Id. at (¶ 3). The supreme court reversed based on the doctrine of in loco parentis, which the court found clearly applied. Id. at 186 (¶ 6). The supreme court held: “Merely because another man was determined to be the minor child’s biological father does not automatically negate the father-daughter relationship held by [the husband] and the minor child.” Id. Further, the supreme court cited with approval other jurisdictions that have held full-blown parental rights do not spring merely from a biological connection. In these cases, the burden is on the biological father to show a sufficient relationship with the child to entitle him to parental rights. Id. at 186-87 (¶ 9). The burden is not, as the chancellor found in Jake’s case, on the husband to prove that the biological father’s natural-parent presumption has been rebutted.

¶ 23. In fact, two years after Pell, in J.P.M. v. T.D.M., 932 So.2d 760, 768 (¶ 21) (Miss.2006), the supreme court rejected the very reasoning the chancellor used in this case to exclude Jake as a potential custodial parent. Just as in Pell, during divorce proceedings, the wife revealed that her husband, who had been the primary caretaker of the child since the separation, was not the biological father. Yet this time, the chancellor awarded the husband custody as the “father in fact.” Id. at 762 (¶1).

¶ 24. On appeal, the wife asserted that, because her ex-husband was not the biological father, he should be considered a third party in their custody dispute. The wife asked the supreme court to apply the line of cases holding that a third party “can only obtain custody” upon showing the natural parent has either abandoned the child, the natural parent’s conduct is so immoral as to be detrimental to the child, or the natural parent is mentally or otherwise unfit for custody. Id. at 767-68 (¶ 20-21) (citing Keely v. Keely, 495 So.2d 452 (Miss.1986); Sellers v. Sellers, 638 So.2d 481 (Miss.1994)). But the supreme court found “the instant situation distinguishable” because, in the cases the ex-wife cited, the third parties “were an aunt and a grandfather, respectively,” whereas in J.P.M., the ex-husband had been the child’s “ ‘legal father’ since her birth.” Id. at 768 (¶ 21). “Thus, he ha[d] existing legal rights and obligations that the third parties in [the cases the wife cited] did not.” Id.

¶ 25. The case the supreme court found instead controlled was Pell and its particular application of the doctrine of in loco parentis. J.P.M., 932 So.2d at 768 (¶ 21) (citing Pell, 881 So.2d 184). So the court found the chancellor, by awarding the husband custody, had reached the right result, using the wrong legal doctrine. While rejecting that the husband was the “father in fact,” the supreme court found he still had parental rights springing from the doctrine of in loco parentis, as applied in Pell. J.P.M., 932 So.2d at 768 (¶ 21)

¶ 26. In J.P.M., Presiding Justice Cobb wrote a specially concurring opinion expressing her concern that in loco parentis was too broad a doctrine to apply to these scenarios. Id. at 779-85 (¶¶ 64-87) (Cobb, P.J., specially concurring). Because it is not just deceived husbands that may stand in loco parentis, Justice Cobb advocated using the more factually tailored doctrine of equitable estoppel or equitable fatherhood as justification for the rebuttal of the natural-parent presumption. Id.

¶ 27. Justice Cobb’s warning proved to be prophetic. Eight years later, in In re Smith, grandparents argued that because they stood in loco parentis, as that doctrine is defined, they stood on equal footing with the natural mother. In re Smith, 97 So.3d at 46-47 (¶ 4). The supreme court rejected this argument, finding that “[t]he doctrine of in loco parentis does not, by itself, overcome the natural-parent presumption.” Id. at 47 (¶ 10). But the court clarified that it was not overruling Pell and J.P.M. Rather, those cases represented “very limited, unique situations” where “several facts” led to the rebuttal of the natural-parent presumption — the husbands’ standing in loco parentis being one of them. In re Smith, 97 So.3d at 47 (¶ 11). Because the husbands also “had supported, cared for, and treated the child[ren] as their own,” because they had been required to pay child support (“with the burden should go the benefit”), and because “the biological fathers were not really in the picture,” the natural-parent presumption had been overcome. Id.

¶ 28. Here, the chancellor expressly found Jake stood in loco parentis. He also found Jake supported, cared for, and treated Vanessa as his own, even after he learned he was not her biological father— an action the chancellor found “quite admirable.” In the divorce proceeding, Jake had been ordered to pay half of Vanessa’s day-care expenses, and the only reason he did not have to pay Anne child support was that he shared equal custody time and expenses with her. The only difference between this case and Pell and J.P.M. is that, in those cases, the natural father either disclaimed any rights to the child or could not be conclusively established. See In re Smith, 97 So.3d at 47 (¶ 11).

¶ 29. Based on the chancellor’s own findings of fact, we find Jake is in that “very limited, unique situation” where Pell and J.P.M. control. Thus, the chancellor erred by instead applying the line of cases where a third party can only rebut the natural-parent presumption by showing the natural parents had abandoned or deserted their child or were detrimentally immoral or otherwise unfit.

¶ 30. Because we find Jake had overcome the natural-parent presumption, he should have been considered on equal footing with Anne and Tommie in the chancellor’s Albright analysis. We reverse the custody award and remand for the chancery court to conduct an Albright analysis that includes Jake as a potential custodial parent. -

¶ 31. THE JUDGMENT OF THE LAMAR COUNTY CHANCERY COURT IS REVERSED, AND THIS CASE IS REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPEL-LEES.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, ROBERTS AND FAIR, JJ., CONCUR. JAMES, J., CONCURS IN PART AND DISSENTS IN PART WITHOUT SEPARATE WRITTEN OPINION. CARLTON, J., NOT PARTICIPATING.

      . In re Smith, 97 So.3d 43, 47 (¶ 11) (Miss.2012).

      . Albright v. Albright, 437 So.2d 1003, 1005 (Miss.1983) (providing multiple factors for the court to consider when determining the child’s best interest regarding custody).

      .The chancellor designated this case as confidential. To protect the identities of the people involved, particularly the minor child, all of the names used in this opinion are fictitious. See M.R.A.P. 48A.

      : No one disputes that Jake is Brett’s biological father. The chancellor found there had been no material change since the divorce decree to justify a modification of Brett's custody. And neither Jake nor Anne appeals this portion of the chancellor's judgment.


author: ROBERTS, J.,

text:
    In the Matter of the ESTATE OF Charles William WHITE, Deceased: Anita White, Individually and as Executor of the Estate of Charles William White, Appellant v. Charles Thomas WHITE, Appellee.
    No. 2012-CA-01083-COA.
    Court of Appeals of Mississippi.
    March 25, 2014.
    Rehearing Denied June 24, 2014.

      John Thomas Lamar III, Senatobia, H.R. Garner, John Thomas Lamar Jr., Senatobia, for appellant.
    Robert R. Morris, Robert Ryan Revere, for appellee.

      Before IRVING, P.J., ROBERTS and JAMES, JJ.
   ROBERTS, J.,

for the Court:

¶ 1. Anita White sued her stepson, Charles Thomas White (Tommy), and claimed that the DeSoto County Chancery Court should set aside two quitclaim deeds, so the properties they described could pass through the estate of Tommy’s father, Charles William White (Bill). To memorialize an earlier partnership-dissolution agreement, Tommy had used his authority under a power of attorney to transfer title to the properties from Bill to himself. Anita sought to set those quitclaim deeds aside, so they could pass to her under the residuary clause of Bill’s will. Anita had raised the same claim in an earlier consolidated complaint, but she neglected to obtain a ruling on her claim. Consequently, the chancellor found that the doctrine of res judicata applied, and granted Tommy’s motion for summary judgment. Anita appeals. She claims the chancellor erred when he granted Tommy’s motion for summary judgment. According to Anita, res judicata does not apply under the circumstances. Anita also claims that the chancellor should have granted her own motion for summary judgment. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. This appeal centers on a family business that began with Bill, who was born on September 8, 1925. In 1945, Bill was discharged from the United States Navy. He began working for a petroleum-distribution business. In the time that followed, Bill married Jeannette Hum-phreys White. They had four children, including Tommy, who was born on June 12, 1946. In 1950, Bill went into business for himself. Two years later, Bill built his first “service station” in Water Valley, Mississippi.

¶ 3. Tommy began working for his father at a young age. According to Tom.my, he prepared his first sales-tax return when he was ten years old. Approximately fifty years ago, Bill formed the C.W. White Partnership with Tommy. The purpose of the partnership was to buy real property to “enhance the sale of petroleum products.” In 1972, the partnership bought its first of many parcels of real property. The partnership built a convenience store on that property. Over time, the partnership acquired additional properties in Water Valley, Charleston, and Batesville, Mississippi. The partnership established additional convenience stores on those properties. In 1977, Bill and Tommy formed C.W. White Incorporated. The corporation bought what Tommy described as a “bulk plant” in Sardis, Mississippi. Tommy’s brother, John White, became involved with the corporation after he was discharged from the United States Navy. Having earned a degree in accounting from the University of Mississippi, Tommy worked out of the corporation’s headquarters in Water Valley,-while John assumed “the logistical day-to-day transportation operation of running the trucks” out of the bulk plant at Sardis. Tommy’s sisters, Rebecca and Virginia, were likewise involved with what Tommy described as “the family business.” Although Bill “retired” to some extent during 1991, he remained involved in the businesses by acting as a consultant.

¶4. In September 1997, Bill’s wife, Jeannette, died. The next month, Bill spontaneously gave Tommy a document conveying a general power of attorney in the event that Tommy ever needed to handle any of Bill’s affairs. Tommy placed the document in a safe.

¶ 5. Approximately two years later, Bill contacted Anita, whose husband had passed away. Bill and Anita had been high-school classmates. Eventually, Bill and Anita discussed marriage. Because they each had children from previous marriages, they signed a prenuptial agreement during February 2000. On April 24, 2000, Bill and Anita were married.

¶ 6. Five years later, Bill decided to formally dissolve his partnership with Tommy. The dissolution agreement stated that Bill intended to transfer all of the partnership’s property and assets to Tommy. Tommy paid Bill approximately $42,600 as compensation. But apparently due to an oversight, no one had deeds prepared to effectuate or memorialize the partnership’s transfer of real property to Tommy.

¶ 7. Bill’s health began to deteriorate during early 2009. In January 2009, Bill had to be hospitalized in the intensive-care unit at Baptist Memorial Hospital. While Bill was in the hospital, his children and Anita disagreed regarding Bill’s health care. According to Tommy, “Anita seemed to feel like ... it would be better to let [Bill] ... die than it would be to sustain him.” A flurry of legal maneuvering followed. Tommy’s brother, John, successfully obtained a temporary restraining order against Anita to prevent her from making health-care decisions for Bill. Anita later had the temporary restraining order set aside.

¶8. Meanwhile, Tommy consulted an attorney and realized that because the dissolution agreement had not been filed, there was no public record regarding the partnership’s transfer of property. Tommy utilized the 1997 power of attorney to execute and record quitclaim deeds confirming the transfer of real property from the partnership to himself. Tommy filed the quitclaim deeds during January 2009. The quitclaim deeds are the subject of the present appeal.

¶ 9. On February 6, 2009, while he was still hospitalized, Bill signed an advanced-health-care directive. Bill also gave Tommy power of attorney for health care. But three days later, Anita had Bill sign documents revoking everything he had signed just three days earlier. Anita also had Bill revoke the power of attorney that he had given Tommy in 1997. Additionally, Anita had Bill sign documents giving her durable power of attorney and durable power of attorney for his health care.

¶ 10. Later that month, Anita sued Tommy. She demanded that Tommy “return all assets belonging to [Bill] that [Tommy had] transferred ... to himself and third parties from October 15,1997, to February 9, 2009.” In other words, Anita demanded that Tommy return title to the property that he had transferred via the quitclaim deeds. Anita also wanted Tommy to be enjoined from disposing of any other property that belonged to Bill.

¶ 11. Approximately one week later, Tommy filed a conservatorship petition. Anita responded and argued that Tommy was unfit to act as Bill’s conservator. She also repeated her challenge to the property transfers. Anita also successfully moved to consolidate her lawsuit with Tommy’s conservatorship petition. In May 2009, the chancellor entered an agreed order appointing W.E. Davis, the DeSoto County Chancery Clerk, as Bill’s conservator.

¶ 12. Bill died approximately one month later. Davis filed a petition seeking discharge as Bill’s conservator, and the authority to transfer funds to Bill’s estate. Davis never challenged the property transfers that Tommy effectuated. No one objected. The chancellor discharged Davis in August 2009. Davis tendered the proceeds of Bill’s bank account to Bill’s estate.

¶ 13. However, no one addressed the fact that Anita’s lawsuit had been consolidated with Tommy’s conservatorship petition. Anita never sought to schedule a hearing on the matter, and she neglected to secure a judgment on her complaint. Nor did she object to Davis’s request to waive an accounting, despite the fact that she had demanded an accounting in her own petition, and in her response to Tommy’s petition to be named as his father’s conservator. Likewise, Anita did not object to Davis’s statement that Bill’s bank account was the only asset that he had gathered while acting as Bill’s conservator.

¶ 14. In any event, on February 10, 2010, Anita filed another complaint to set aside the quitclaim deeds. Anita sued Tommy in her capacity as the executor of Bill’s estate and in her individual capacity. Tommy filed a motion for summary judgment and argued that Anita’s claims were barred by the doctrine of res judicata. Anita responded with her own motion for summary judgment. The chancellor agreed with Tommy. Accordingly, the chancellor granted Tommy’s motion for summary judgment,- and denied Anita’s motion for summary judgment. Anita appeals.

STANDARD OF REVIEW

¶ 15. An appellate court conducts a de novo review of a trial court’s decision to grant a motion for summary judgment. Kilhullen v. Kansas City S. Ry., 8 So.3d 168, 174 (¶ 14) (Miss.2009). Mississippi Rule of Civil Procedure 56(c) provides that summary judgment “shall be rendered ... if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” We must review the evidence in the light most favorable to the nonmoving party. Kilhullen, 8 So.3d at 174 (¶ 14).

¶ 16. To overcome a motion for summary judgment, the nonmoving party “may not rest upon the mere allegations or denials of his pleadings, but his response ... must set forth specific facts showing there is a genuine issue for trial.” M.R.C.P. 56(e). The Mississippi Supreme Court has recently held:

[I]n a summary[-]judgment hearing, the burden of producing evidence in support of, or in opposition to, the motion is a function of Mississippi rules regarding the burden of proof at trial on the issues in question. The movant bears the burden of persuading the trial judge that: (1) no genuine issue of material fact exists, and (2) on the basis of the facts established, he is entitled to [a] judgment as a matter of law. The movant bears the burden of production if, at trial, he would bear the burden of proof on the issue raised. In other words, the movant only bears the burden of production where [he] would bear the burden of proof at trial. Furthermore, summary judgment is appropriate when the non[ jmoving party has failed to make a showing sufficient to establish the existence of an element essential to the party’s case, and on which that party will bear the burden of proof at trial.

Karpinsky v. Am. Nat’l Ins. Co., 109 So.3d 84, 88-89 (¶ 11) (Miss.2013) (quotations omitted).

ANALYSIS

I. Res Judicata

¶ 17. Anita claims that the chancellor erred when he found that her claim is barred by the doctrine of res judicata. “Res judicata prevents litigation of all grounds for, or defenses to, recovery that were previously available to the parties, regardless of whether they were asserted or determined in the prior proceeding.” Brown v. Felsen, 442 U.S. 127, 131, 99 S.Ct. 2205, 60 L.Ed.2d 767 (1979). In other words, res judicata precludes parties from litigating claims that “were made or should have been made” in a prior lawsuit. Anderson v. LaVere, 895 So.2d 828, 832 (¶ 10) (Miss.2004). The supreme court has held:

Generally, four identities must be present before the doctrine of res judicata will be applicable: (1) identity of the subject matter of the action, (2) identity of the cause of action, (3) identity of the parties to the cause of action, and (4) identity of the quality or character of a person against whom the claim is made. If these four identities are present, the parties will be prevented from relitigat-ing all issues tried in the prior lawsuit, as well as all matters which should have been litigated and decided in the prior suit. In other words, the doctrine of res judicata bars litigation in a second lawsuit on the same cause of action of all grounds for, or defenses to, recovery that were available to the parties in the first action, regardless of whether they were asserted or determined in the prior proceeding.

Id. at 832-33 (¶ 10) (citations and quotation omitted).

1. Identity of the Subject Matter

¶ 18. In the context of res judica-ta, the subject matter at issue has been characterized as the “substance” of the lawsuit. Hill v. Carroll Cnty., 17 So.3d 1081, 1085 (¶ 12) (Miss.2009). Anita argues that the substance of the earlier lawsuit was different than the substance of her current lawsuit. She admits that she had previously alleged that Tommy had misappropriated property through his power of attorney, but she argues that her claim was “clearly and solely done in an effort to indicate ... that ... Tommy ... was guilty of self[-]dealing and was unfit to serve in the fiduciary role of conservator.” But Anita omits the fact that she consolidated Tommy’s conservatorship action with her own separate lawsuit in which she demanded that Tommy “return all assets belonging to [Bill] that [Tommy] transferred ... to himself ... from October 15, 1997, to February 9, 2009.” The subject matter of Anita’s first petition was Tommy’s conveyance of property by way of his power of attorney. The subject matter of the current lawsuit is exactly the same.

2. Identity of the Cause of Action

¶ 19. A “cause of action” has been defined “as the underlying facts and circumstances upon which a claim has been brought.” Hill, 17 So.3d at 1085 (¶ 13). The term “claim” can be substituted for “cause of action.” See M.R.C.P. 2; Harrison v. Chandler-Sampson Ins., Inc., 891 So.2d 224, 233 (¶27) (Miss.2005). “In order for res judicata and the ban on claim-splitting to take effect, the litigation must involve the same claim premised upon the same body of operative fact as was previously adjudicated.” Id. at 234 (¶ 31).

¶ 20. Anita again argues that her claim in the first consolidated lawsuit was that Tommy was unfit to serve as Bill’s conservator. According to Anita, “[t]here were no causes of action asserted against [Tommy] for the execution of the deeds in the conservator proceeding, only bases given to support why he should not be appointed to serve.” Yet again, Anita neglects to mention the fact that she successfully moved to consolidate Tommy’s conservatorship action with her own lawsuit. In her previous lawsuit, Anita demanded that Tommy return all assets that he transferred from Bill to himself from October 1997 through February 2009. Anita’s second lawsuit involves the same claim — based on the same body of operative fact — that she previously raised. It was her obligation to ensure that she adjudicated her previous claim, but she failed to do so.

3. Identities of the Parties

¶ 21. Anita claims that the parties are not the same because she acted in her individual capacity during the first consolidated lawsuit, and she is acting — in part — in her representative capacity as the executor of Bill’s estate in the present lawsuit. “To satisfy the identity[-]of[-]parties element, strict identity of the parties is not necessary.” Harrison, 891 So.2d at 236-87 (¶ 37). As the residuary beneficiary of Bill’s will, Anita is the only party who stands to benefit from having the quitclaim deeds set aside. In either her individual or representative capacity, Anita’s interest is the same in both her previous lawsuit and the present lawsuit. In both lawsuits, she claimed that the chancellor should set aside the quitclaim deeds, so she could obtain the title to the properties through the residuary clause in Bill’s will. Thus, the identity-of-the-parties element is satisfied.

A Identity of the Quality or Character of the Person Against Whom the Claim is Made

¶ 22. “Where someone is sued in a limited or representative capacity in one cause and then personally in another, the party’s ‘quality or character’ is not the same in both actions.” In re Estate of Bell, 976 So.2d 965, 968 (¶8) (Miss.Ct.App.2008) (citing McCorkle v. Loumiss Timber Co., 760 So.2d 845, 856 (¶ 47) (Miss.Ct.App.2000)). But when a party is a named defendant in a first and second suit, the identity or character of the defendants is the same. Id. In both her previous lawsuit and the present lawsuit, Anita sued Tommy and sought to have the deeds set aside. The identity of the defendants is the same.

¶ 23. We find that all four identities of res judicata are present. Therefore, we find that the chancellor correctly held that the doctrine of res judicata precludes Anita’s present claim. It follows that we find no merit to this issue.

II. Anita’s Motion for Summary Judgment

¶ 24. Anita claims the chancellor erred when he denied her motion for summary judgment. But this issue is moot because we have found that res judicata precludes Anita’s second lawsuit.

¶ 25. THE JUDGMENT OF THE DE-SOTO COUNTY CHANCERY COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., ISHEE, CARLTON, MAXWELL, FAIR AND JAMES, JJ., CONCUR. BARNES, J., NOT PARTICIPATING.

      . The corporation sold petroleum products to numerous customers, including some gas stations that the partnership owned. Initially, Bill was the majority shareholder, and Tommy was a minority shareholder.

      . Among other things, the prenuptial agreement provided: "[NJeither Bill [n]or Anita, during the lifetime of the spouse or thereafter, ... shall take, claim, demand!,] or receive any right or homestead or any other inheritance as a result of the death of the spouse.”

      . In his will, Bill left Anita a life estate in his house in Water Valley. He also named her as the residuary beneficiary of his will.