Brekeen v. Brekeen

880 So. 2d 280, 2004 WL 1405318
CourtMississippi Supreme Court
DecidedJune 24, 2004
Docket2002-CA-01136-SCT
StatusPublished
Cited by33 cases

This text of 880 So. 2d 280 (Brekeen v. Brekeen) is published on Counsel Stack Legal Research, covering Mississippi Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Brekeen v. Brekeen, 880 So. 2d 280, 2004 WL 1405318 (Mich. 2004).

Opinion

880 So.2d 280 (2004)

Barbara Ann BREKEEN
v.
William Lee BREKEEN.

No. 2002-CA-01136-SCT.

Supreme Court of Mississippi.

June 24, 2004.
Rehearing Denied September 2, 2004.

*281 Duncan L. Lott, Booneville, attorney for appellant.

Joe M. Davis, New Albany, attorney for appellee.

EN BANC.

CARLSON, Justice, for the Court.

¶ 1. On May 8, 2002, the Tishomingo Chancery Court awarded William Lee Brekeen a divorce from Barbara Ann Brekeen on the grounds of adultery. The chancery court further awarded custody of the parties' minor child to William and granted Barbara liberal visitation rights. Feeling aggrieved by the chancellor's ruling regarding the custody of her minor child, Barbara has timely filed her appeal before this Court. Finding that the chancellor placed too much weight on one particular Albright factor, we reverse the judgment of the Tishomingo County Chancery Court and remand this case for further proceedings.

FACTS AND PROCEEDINGS IN THE TRIAL COURT

¶ 2. William and Barbara Brekeen were married on July 20, 1991. On October 19, 1994, their minor child was born. Barbara left their home at the Tishomingo County State Park, where her husband was employed as park manager, on June 26, 2001, and moved into the parties' city home in Tishomingo. Barbara's son from a previous marriage later moved into the city to live with his mother.

¶ 3. William filed for divorce on the grounds of Barbara's alleged affair with another man. Barbara also filed for divorce on the grounds of habitual, cruel and inhuman treatment. After the separate causes were consolidated, the chancellor awarded temporary custody of the parties' minor child to William and granted temporary visitation to Barbara until final disposition. After a trial on the merits was conducted, the chancellor awarded William a divorce from Barbara on the grounds of adultery and awarded William primary legal custody of the parties' minor child. Barbara was awarded extensive visitation rights. The following is the judgment of chancellor:

At this time, the Court will now consider each of the [Albright] guidelines separately, which are as follows:
1. Age, Health and Sex of Child.
The minor female child of the parties is eight years of age and in good health.
2. Continuity of Care Prior to the Separation.
Both parents were actively involved in the care of the minor child before the separation on June 26, 2001, but Barbara Ann Brekeen did not work when the child was younger and did participate more in the care of the child, primarily because William Lee Brekeen was working on a full time basis.
3. Parenting Skills and the Willingness and Capacity to Provide the Primary Child Care to the Child.
Both parties have good parenting skills, are actively involved in the minor child's school and church activities and have demonstrated by the proof they respectively presented that each has the *282 capacity to provide for the care of the minor child.
4. Employment of the Parents and Responsibilities of that Employment.
William Lee Brekeen is employed by the Mississippi Department of Wildlife, Fisheries and Parks and serves as park manager of Tishomingo State Park, where he has overall management of the operation of that park. At the temporary hearing, Barbara Ann Brekeen worked for the Town of Tishomingo, but has since been terminated from this employment, and now works at Town and Country Furniture Store in Iuka, Mississippi.
5. Physical and Mental Health and Age of Parents
Both William Lee Brekeen and Barbara Ann Brekeen are 41 years of age and are in good physical and mental health.
6. Emotional Ties Between the Parents and Child
Both parties have strong emotional ties with the minor child, and she with them.
7. Moral Fitness of Parents
The proof clearly established that William Lee Brekeen is a morally fit individual. While he did not attend church on a regular basis with his family before the date of separation on June 26, 2001, since he obtained the temporary custody of the minor child by prior order of the Court dated September, 2001, he and the minor child attend church regularly. The proof did establish that William Lee Brekeen had a child, apparently out of wedlock, many years ago, and agree to have his parental rights in that child terminated.
Barbara Ann Brekeen has used very poor judgment in her personal life in that she has clearly engaged in an extra-marital affair with an individual she met while working with the Town of Tishomingo. This individual also worked for the Town of Tishomingo as a policeman. Because her relationship with this police officer and because of unauthorized long distance calls at the City Hall in Tishomingo, Mississippi, Barbara Ann Brekeen was terminated from her employment between the temporary hearing held in this matter in September, 2001, and the date of the first day of the hearing on the merits held on February 15, 2002.
This relationship by Barbara Ann Brekeen with the policeman caused her to leave the marital home at the state park, leaving William Lee Brekeen, her oldest son, ["John"], and the 8 year old daughter of the parties, without notice to the family members. She was gone for over a week without contacting William Lee Brekeen, the minor child or ["John"]. Later she came back and took ["John"] with her to the home in Tishomingo, Mississippi where she has remained since that time.
Both parties acknowledged that William Lee Brekeen tried to persuade Barbara Ann Brekeen to seek marriage counseling after the separation, but she refused to do so. Barbara Ann Brekeen admitted she told William Lee Brekeen "her feelings had changed" and that she left her three family members "because I wanted to think about what I was going to do."
This bizarre action on the part of Barbara Ann Brekeen in leaving her family without notice, particularly her eight year old minor daughter, her adulterous affair at the expense of her family, and her termination from her employment at the Town of Tishomingo, all this Court to have grave and serious concerns about her moral fitness for custody of the minor child.
*283 8. The Home, School and Community Records of the Child.
The proof established that the minor child of the parties is a good student, making straight A's, at Tishomingo Elementary School.
9. Preference of the Child.
Because of the young age of the minor child, age eight, this factor is not applicable.
10. Stability of the Home Environment of Each Parent.
William Lee Brekeen has a stable home in the manager's home provided to him at Tishomingo State Park. Since the date of separation on June 26, 2001, Barbara Ann Brekeen and her oldest son, ["John"], reside in a home the parties jointly own at [...].
11. Other Factors Relevant to the Parent-Child Relationship.

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Cite This Page — Counsel Stack

Bluebook (online)
880 So. 2d 280, 2004 WL 1405318, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brekeen-v-brekeen-miss-2004.