Bellais v. Bellais

931 So. 2d 665, 2006 Miss. App. LEXIS 436, 2006 WL 1530006
CourtCourt of Appeals of Mississippi
DecidedJune 6, 2006
DocketNo. 2004-CA-00905-COA
StatusPublished

This text of 931 So. 2d 665 (Bellais v. Bellais) is published on Counsel Stack Legal Research, covering Court of Appeals of Mississippi primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bellais v. Bellais, 931 So. 2d 665, 2006 Miss. App. LEXIS 436, 2006 WL 1530006 (Mich. Ct. App. 2006).

Opinion

GRIFFIS, J., for the Court.

¶ 1. This appeal arises from a judgment of the Chancery Court of Harrison County, awarding an irreconcilable differences divorce to Herman Bellais and Renee Bellais and the physical and legal custody of the couple’s two minor children to. Herman. Feeling aggrieved by the chancellor’s ruling, Renee appeals and asserts a litany of issues, which we summarize as follows: (1) whether, in analyzing the Albright factors, the chancellor erred in his grant of custody to Herman and (2) whether the presiding chancellor and the other chancellors of the Eight District Chancery Court should have recused themselves from hearing the case. We find no error and affirm.

FACTS

¶ 2. Herman and Renee were married on May 23, 1998. Two girls were born to the couple during the marriage. The oldest, Caitlin, was born June 9, 1999, and the youngest, Laini, was born August 30, 2000. The Bellaises separated in May 2001.

¶ 3. On August 2, 2001, the Bellaises filed a joint complaint for divorce on the ground of irreconcilable differences. Thereafter, Herman retained counsel and filed a withdrawal of consent to the grant of divorce on the basis of irreconcilable differences, a withdrawal of and objection to the custody and property settlement agreement, and an amended complaint for divorce. Herman sought a divorce on the fault grounds of habitual cruel and inhuman treatment and adultery. He also alleged the alternative ground of irreconcilable differences. He sought the primary legal and physical custody of Caitlin and Laini. He also filed a motion for temporary relief, seeking temporary custody of the minor children.

¶ 4. Shortly after filing for temporary relief, Herman filed a motion for emergency relief, alleging that “the children were in dire and necessitous need due to the conduct of Renee.” Specifically, Herman accused Renee of “suspected drug use and potential dealings, living in conditions not conducive to the well being of the children, and [committing] illegal and/or immoral acts while the children [were] present.” At the hearing on the motion for emergency relief, the chancellor ordered urine and hair follicle testing for both parties. Pending the completion of the drug tests and reports to the court, Herman was given temporary custody of the children.

¶ 5. Renee filed her answer and counter-complaint for divorce, seeking a divorce on the ground of habitual cruel and inhuman treatment, and the physical and legal custody of Caitlin and Laini. She also asked [667]*667for a divorce on the alternative ground of irreconcilable differences.

¶ 6. After receiving the results of the drug tests, the chancellor granted Herman’s motion for emergency relief.1 Thereafter, the chancellor entered another temporary order, granting Herman and Renee joint legal custody of the children, but awarding Herman the physical care, custody and control of the children. The order further provided that Renee would have visitation only if the visitation was supervised by her mother.

¶ 7. Ultimately, a trial on the merits was held. At the beginning of the trial, the parties agreed to a divorce on the ground of irreconcilable differences. The parties executed and filed a withdrawal of fault grounds, and consented to allow the court to adjudicate the following: (1) child custody, (2) child support, (3) visitation, (4) medical insurance and health expenses for the minor children, (5) tax exemptions for the minor children, and (6) personal property of the minor children. At the conclusion of the trial, the court awarded physical and legal custody of the minor children to Herman. From that adverse ruling, Renee appeals.

¶ 8. Additional facts, as necessary, will be related during our discussion of the issues.

STANDARD OF REVIEW

¶ 9. In domestic relations cases, the scope of review is limited by the substantial evidence/manifest error rule. Samples v. Davis, 904 So.2d 1061, 1063-64(¶ 9) (Miss.2004) (citing Jundoosing v. Jundoosing, 826 So.2d 85, 88(¶ 10) (Miss.2002)). “[We] will not disturb the chancellor’s opinion when supported by substantial evidence unless the chancellor abused his discretion, was manifestly wrong, clearly erroneous, or an erroneous legal standard was applied.” Id. (citing Holloman v. Holloman, 691 So.2d 897, 898 (Miss.1996)). “However, where the chancellor improperly' considers and applies the Al-bright factors, an appellate court is obliged to find the chancellor in error.” Hollon v. Hollon, 784 So.2d 943, 946(¶11) (Miss.2001) (citing Jerome v. Stroud, 689 So.2d 755, 757 (Miss.1997)).

ANALYSIS AND DISCUSSION OF THE ISSUES

1. Child Custody

¶ 10. “The polestar consideration in child custody cases is the best interest and welfare of the child.” Albright v. Albright, 437 So.2d 1003, 1005 (Miss.1983). The Albright factors are the well-established benchmarks used in analyzing what is in the “best interest” of a child in regards to custody. The Albright factors are as follows: (1) age, health and sex of the child; (2) determination of the parent that had the continuity of care prior to the separation; (3) which parent has the best parenting skills and which has the willingness and capacity to provide primary child care; (4) the employment of the parent and responsibilities of that employment; (5) physical and mental health and age of the parents; (6) emotional ties of parent and child; (7) moral fitness of parents; (8) the home, school and community record-of the child; (9) the preference of the child at the age sufficient to express a preference by law; (10) stability of home environment and employment of each parent; and (11) other factors relevant to the parent-child relationship. Id.

[668]*668¶ 11. In Lee v. Lee, 798 So.2d 1284, 1288(¶ 15) (Miss.2001), the supreme court held that, “[w]hile the Albright factors are extremely helpful in navigating what is usually a labyrinth of interests and emotions, 'they are certainly not the equivalent of a mathematical formula. Determining custody of a child is not an exact science.” The court correctly reasoned that “it is the chancellor’s duty to weigh the evidence, and he is in a better position th[a]n this Court to judge the veracity of witnesses and credibility of evidence. In reviewing the record, this Court finds that the chancellor was more than justified in ruling as he did.” Id. at 1291(1129).

¶ 12. With this standard in mind, we review the evidence presented at trial and discussed by the chancellor, under each factor, to ensure that the record supports the chancellor’s ruling.

(a)Age, Health and Sex

¶ 13. Although the Mississippi Supreme Court has weakened the “tender years” doctrine in recent years, there is still a presumption that a mother is generally better suited to raise a young child. See Sobieske v. Preslar, 755 So.2d 410, 413(¶ 10) (Miss.2000). The chancellor began this part of his analysis by noting that the two children born to the marriage were females, who were of a very young age. The chancellor pointed out that both children were in good health, although Lai-ni has had a problem digesting proteins. The chancellor stated that with the children being four and five, respectively, at the time of trial, this factor would normally favor Renee because of the age and sex of the children.

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Related

Frierson v. State
606 So. 2d 604 (Mississippi Supreme Court, 1992)
Cheek v. Ricker
431 So. 2d 1139 (Mississippi Supreme Court, 1983)
Jundoosing v. Jundoosing
826 So. 2d 85 (Mississippi Supreme Court, 2002)
Lee v. Lee
798 So. 2d 1284 (Mississippi Supreme Court, 2001)
Albright v. Albright
437 So. 2d 1003 (Mississippi Supreme Court, 1983)
Sobieske v. Preslar
755 So. 2d 410 (Mississippi Supreme Court, 2000)
Samples v. Davis
904 So. 2d 1061 (Mississippi Supreme Court, 2004)
Roberson v. Roberson
370 So. 2d 1008 (Court of Civil Appeals of Alabama, 1979)
Holloman v. Holloman
691 So. 2d 897 (Mississippi Supreme Court, 1996)
Jerome v. Stroud
689 So. 2d 755 (Mississippi Supreme Court, 1997)
Culbreath v. Johnson
427 So. 2d 705 (Mississippi Supreme Court, 1983)
Hollon v. Hollon
784 So. 2d 943 (Mississippi Supreme Court, 2001)
Rippon v. Rippon
381 N.E.2d 70 (Appellate Court of Illinois, 1978)

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Bluebook (online)
931 So. 2d 665, 2006 Miss. App. LEXIS 436, 2006 WL 1530006, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bellais-v-bellais-missctapp-2006.