Brock v. Brock

906 So. 2d 879, 2005 WL 757252
CourtCourt of Appeals of Mississippi
DecidedApril 5, 2005
Docket2003-CA-01394-COA
StatusPublished
Cited by12 cases

This text of 906 So. 2d 879 (Brock v. Brock) 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
Brock v. Brock, 906 So. 2d 879, 2005 WL 757252 (Mich. Ct. App. 2005).

Opinion

906 So.2d 879 (2005)

James Delbert BROCK, Appellant
v.
Robin Sue BROCK, Appellee.

No. 2003-CA-01394-COA.

Court of Appeals of Mississippi.

April 5, 2005.
Rehearing Denied June 14, 2005.

*880 Jak McGee Smith, Tupelo, attorney for appellant.

C. Michael Malski, Tupelo, attorney for appellee.

Before LEE, P.J., MYERS and CHANDLER, JJ.

CHANDLER, J., for the Court.

¶ 1. The Itawamba County Chancery Court granted a divorce to J.D. and Robin Brock. During the marriage, J.D. moved his family seven times in the eleven years the parties lived together. J.D. is a football coach, and Robin is a teacher. During the last year the parties lived together, Robin had an affair, and when J.D. became suspicious of her affair, he kept records of the time Robin was away from home and kept records of the parental responsibilities each party shared.

¶ 2. The parties jointly owned a number of parcels of real property. In 1992, Robin's father deeded a house to Robin in her name alone, and he retained a life estate. J.D. and Robin lived in this house for a total of approximately two years during the marriage, and Robin returned to this house after the parties separated.

¶ 3. After the chancellor applied the factors identified in Albright v. Albright, she awarded custody of the children to Robin. She also determined that the home currently occupied by Robin was her separate property. J.D. appeals, raising the following issues:

I. WHETHER THE CHANCELLOR ABUSED HER DISCRETION IN AWARDING CUSTODY TO ROBIN

II. WHETHER THE CHANCELLOR ERRED IN FINDING THAT ROBIN WAS ENTITLED TO THE HOUSE

¶ 4. Finding no error, we affirm.

FACTS

¶ 5. James Delbert (J.D.) and Robin Sue Brock were married on August 26, 1989. After they were married, they both worked in the Nettleton School District. J.D. was employed as an assistant football coach, and Robin was employed as a teacher's assistant. J.D. continued to work in the Nettleton School District during the 1990-1991 school year, while Robin changed jobs and worked at Montessori School in Tupelo.

¶ 6. In 1991, J.D. and Robin moved to Montgomery County, Mississippi, where J.D. accepted a head coaching job at Kilmichael High School. They were at Kilmichael for less than a month when J.D. decided to accept a head coaching job at East Webster High School, because they wanted to return to Robin's home county of Webster. During this period, J.D. and Robin were living in a home on South Dunn Street, in a house Robin's father owned. On February 26, 1992, Robin's father deeded the property to Robin in her name alone, but he retained a life estate in the house.

¶ 7. J.D.'s and Robin's first child, Tyler, was born on October 15, 1992. J.D. resigned from his job at East Webster in November, at the end of the football season, but he finished his contract for the 1992-1993 school year. In 1993, the family moved to Batesville, where J.D. and Robin *881 were both employed with the South Panola School District. On December 6, 1993, Robin's father deeded the house and lot on South Dunn Street to both J.D. and Robin, but this deed had a limited effect because Robin's father had already conveyed the majority of his interest in the land.

¶ 8. J.D. and Robin moved from Panola County to Philadelphia, Mississippi, after the 1993-1994 school year. In August of 1994, J.D. and Robin started the first of three school years with the Neshoba County School District. Their second son, Dallas, was born on October 9, 1995.

¶ 9. In March of 1996, J.D., Robin, and their two children moved from Philadelphia to Eupora and returned to the home on South Dunn Street. Their last child, Victoria, was born on July 2, 1997. Robin did not work during the 1997-1998 school year and primarily took care of the children.

¶ 10. In August of 1999, the Brock family moved from Eupora to Itawamba County. In February, 2000, Robin started having an affair. She also started having cheerleader practice in May of 2000 which further kept her away from home during the evening hours. J.D. was suspicious of Robin's behavior and started keeping a diary of the times Robin was away from home. Beginning in February of 2000, J.D. prepared a chart to show the number of hours Robin was away from home while J.D. took care of the children.

¶ 11. J.D. filed for divorce on January 3, 2001. Robin moved her mother into the former marital home in Itawamba County. Also in this month, Robin started taking the children to Eupora on the weekends. In April, J.D. learned that Robin was moving to Eupora. The next month, Robin took the children and moved, returning to the home on South Dunn Street.

¶ 12. In September of 2001, the parties entered a temporary order allowing Robin to keep the minor children in Eupora on a temporary basis. It was agreed in the order that the temporary arrangement would not be held against J.D. when the custody matter was heard on its merits.

¶ 13. The chancellor granted custody of the parties' three minor children to Robin. The chancellor concluded that Robin was the better choice with regard to the children's continuity of care, Robin's willingness and capacity to provide primary child care, the employment and employment responsibilities of the parents, and the home, school, and community record of the children. The moral fitness of the parties favored J.D. Robin was awarded custody, and J.D. was granted generous visitation rights.

¶ 14. With regard to the property of the parties, the chancellor distributed the property based on the factors set out in Hemsley v. Hemsley, 639 So.2d 909, 915 (Miss.1994) and Ferguson v. Ferguson, 639 So.2d 921, 928 (Miss.1994). She allowed each party to retain the personal property in their respective names or possession and allowed each party to retain their own retirement plans. The chancellor found that the home currently occupied by Robin on South Dunn Street was her separate property, except for J.D.'s one-half interest in Robin's father's life estate. The chancellor found that Robin's father's intent to transfer the house and land to both parties was invalid. The chancellor balanced Robin's award of the house by ordering Robin to convey a three-acre parcel of land in Mathiston, which the parties jointly owned, to J.D. The chancellor further ordered the sale of the parties' thirty-three acre tract of land, with the proceeds to be divided equally between the parties.

*882 ANALYSIS

I. WHETHER THE CHANCELLOR ERRED IN GRANTING CUSTODY TO ROBIN

¶ 15. In child custody cases, the polestar consideration is the best interest and welfare of the child. Albright v. Albright, 437 So.2d 1003, 1005 (Miss.1983). In order to arrive at a custody arrangement that is in the child's best interest, the chancellor must make specific findings on each of the factors listed in Albright:

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Cite This Page — Counsel Stack

Bluebook (online)
906 So. 2d 879, 2005 WL 757252, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brock-v-brock-missctapp-2005.