Caswell v. Caswell

763 So. 2d 890, 2000 WL 157496
CourtCourt of Appeals of Mississippi
DecidedFebruary 15, 2000
Docket1998-CA-01831-COA
StatusPublished
Cited by14 cases

This text of 763 So. 2d 890 (Caswell v. Caswell) 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
Caswell v. Caswell, 763 So. 2d 890, 2000 WL 157496 (Mich. Ct. App. 2000).

Opinion

763 So.2d 890 (2000)

Daria Jean Lawrence CASWELL, Appellant,
v.
Leonard Bowers CASWELL, Appellee.

No. 1998-CA-01831-COA.

Court of Appeals of Mississippi.

February 15, 2000.
Rehearing Denied May 2, 2000.
Certiorari Denied August 10, 2000.

*891 Jack R. Jones, III, Southhaven, Attorney for Appellant.

Leslie B. Shumake, Jr., Olive Branch, Attorney for Appellee.

BEFORE McMILLIN, C.J., IRVING, AND THOMAS, JJ.

THOMAS, J., for the Court:

¶ 1. Daria Jean Caswell appeals a divorce judgment of the DeSoto County Chancery Court, raising four assignments of error

I. ERRED IN ALLOWING INTO EVIDENCE A LETTER FROM A *892 MEDICAL DOCTOR WHICH PRECLUDED THE APPELLANT'S COUNSEL FROM CROSS-EXAMINING THE CONTENTS OF THE LETTER.

II. THAT THE TRIAL COURT'S RULING WHICH GAVE PHYSICAL CUSTODY OF THE SUBJECT MINOR CHILDREN TO THE APPELLEE WAS AN ABUSE OF DISCRETION.

III. THAT THE TRIAL COURT ERRED IN AWARDING THE HOME OF THE PARTIES TO THE APPELLEE AND THIS FACT FURTHER REFLECTS ON THE ERRONEOUS DECISION.

IV. THAT THE TRIAL COURT ERRED IN EQUALLY DIVIDING THE APPELLANT'S PENSION PLAN (401K) WITH THE APPELLEE.

FACTS

¶ 2. Daria Jean Caswell and Leonard Bowers Caswell were married on July 20, 1984. Shortly after they were married they bought the marital home which has approximately $35,000 in equity. The two children born of the marriage, Megan Kathleen Caswell on January 20, 1992, and Daria Lynn Caswell on August 9, 1988, have lived in the marital home all their lives. During the marriage Leonard was injured while working at FedEx. He injured his neck and has had three surgeries, requiring him to take pain killers, arthritis pills and nerve pills. He was determined to be 100 percent disabled and consequently receives $527 and $77 per child a month in Social Security. After his injury Leonard stayed at home and took care of the children and the household. Daria has worked for Host Marriott Services Corporation for over twelve years. She manages thirty to forty people, leaving for work at six in the morning and frequently working until five or six in the evening.

¶ 3. Daria filed a petition for divorce on the grounds of irreconcilable differences on September 26, 1997. An order of the DeSoto County Chancery Court granted the divorce on the stated grounds. The divorce proceeding was tried before Honorable Percy Lynchard, Jr. The chancellor granted primary physical custody of the minor children to their father, Leonard, awarded Daria reasonable visitation and ordered Daria to pay $162 per month in child support, gave Leonard the exclusive use and occupancy of the marital home, and finally, gave Leonard half of Daria's retirement accumulated through the date of separation.

ANALYSIS

I. THAT THE TRIAL COURT ERRED IN ALLOWING INTO EVIDENCE A LETTER FROM A MEDICAL DOCTOR WHICH PRECLUDED THE APPELLANT'S COUNSEL FROM CROSS-EXAMINING THE CONTENTS OF THE LETTER.

¶ 4. The appellee introduced a letter from a doctor pertaining to the medical condition of the appellee. The appellee was attempting to show that his disability had no effect on his ability to care for his children. The chancellor admitted the letter under the statements for the purpose of medical diagnosis exception to the hearsay rule. M.R.E. 803(4). This letter, however, does not fall under this exception since it did not pertain to a diagnosis and was drafted specifically for litigation. The letter was clearly hearsay and was therefore inadmissible. The appellee's injury occurred during the marriage and prevented him from working; however, the record reflects that he was able to stay at home and care for the children because the appellant worked. This fact, together with testimony in the record, makes it apparent that although the appellee was injured his disability did not prevent him from adequately being able to care for his children. Although *893 admitting the letter into evidence was error, the same was harmless given other testimony and evidence at trial.

II. THAT THE TRIAL COURT'S RULING WHICH GAVE PHYSICAL CUSTODY OF THE SUBJECT MINOR CHILDREN TO THE APPELLEE WAS AN ABUSE OF DISCRETION.

¶ 5. Unfortunately, our review of child custody matters is constrained by a deferential standard. Absent an abuse of discretion or a manifestly wrong or clearly erroneous finding our hands are tied, and we must uphold the decision of the chancellor. Ayers v. Ayers, 734 So.2d 213, 215 (Miss.App.1999). If substantial evidence exists to support the chancellor's finding of fact, broad discretion is afforded his determination. McEwen v. McEwen, 631 So.2d 821, 823 (Miss.1994).

¶ 6. Daria argues that the chancellor erred in analyzing the best interest of the child test found in Albright v. Albright, 437 So.2d 1003, 1005 (Miss.1983). In Albright, the Supreme Court reaffirmed "the rule that the polestar consideration in child custody cases is the best interest and welfare of the child." Id. The Supreme Court has instructed chancellors, when making custody decisions, to consider the age of the child, the health and sex of the child, the continuity of care prior to the separation, parenting skills and willingness to provide primary child care, employment and responsibilities of employment, physical and mental health and age of the parents, emotional ties of parent and child, moral fitness of parents, the home, school and community record of the child, the preference of the child, stability of the home environment and employment of each parent, and other factors relevant to the parent-child relationship. Id. One individual factor should not carry any greater weight than the others. Id.

¶ 7. Daria maintains that she was favored over Leonard in several of the factors due to his faults, whereas Leonard was favored in several factors only because of Daria's recent hospitalization, and not due to any negative factor on her part. Daria also contends that earning money to support and provide for the children affords stability and should fall in her favor. Furthermore, Daria maintains that the chancellor focused too much attention on the seven months between the separation and the trial. This was the short period of time where she was unable to care for the children due to her accident, thus requiring Leonard to care for them. Prior to the accident, which was not her fault, Daria maintains she was the primary care giver of the children as well as the primary financial support for them. She argues that the whole span of their lives should be considered in regards to continuity and stability, instead of a mere seven months.

¶ 8. The court in Jerome v. Stroud discussed that the time between the separation and the trial should be considered in determining continuity for the children. Jerome v. Stroud, 689 So.2d 755, 757 (Miss.1997). However, this does not change the Albright factors, which includes looking to continuity of care prior to the separation. Id. Thus, both of these factors need to be considered, giving neither factor greater weight. It appears from the record that the chancellor considered both of these time spans. Regardless of what we would have held if we were the deciding judge, so long as the chancellor had a factual basis to ground his opinion and applied the correct legal standard we are not at liberty to intervene.

¶ 9. It appears from the chancellor's finding of fact that he examined each of the Albright

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Bluebook (online)
763 So. 2d 890, 2000 WL 157496, Counsel Stack Legal Research, https://law.counselstack.com/opinion/caswell-v-caswell-missctapp-2000.