Clay v. Clay

837 So. 2d 215, 2003 Miss. App. LEXIS 50, 2003 WL 245362
CourtMississippi Supreme Court
DecidedFebruary 4, 2003
DocketNo. 2001-CA-00889-COA
StatusPublished
Cited by6 cases

This text of 837 So. 2d 215 (Clay v. Clay) 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
Clay v. Clay, 837 So. 2d 215, 2003 Miss. App. LEXIS 50, 2003 WL 245362 (Mich. 2003).

Opinion

IRVING, J.,

for the court.

¶ 1. Paula Clay filed a petition for divorce and temporary relief against her spouse, Stephen Clay. Both parties consented to the divorce on grounds of irreconcilable differences and agreed to allow the chancellor to equitably distribute liabilities and assets, as well as decide child custody and support. The chancellor divided the marital property and awarded physical and legal custody of the parties’ minor child to Stephen. Feeling aggrieved by the verdict, Paula has appealed and asserts that the trial court applied the Albright factors in a clearly erroneous manner and erred by awarding custody of the minor child to Stephen.

¶ 2. Finding no error, we affirm.

FACTS

¶ 3. Stephen Clay and Paula Clay were married in May of 1996. This union was Stephen’s third marriage and Paula’s fourth. Stephen is twenty-six years older than Paula. From this marriage, one son, Brady, was born. The child was born while Stephen was still married to another woman from whom he had been separated for nearly two years. Paula has one daughter, Stephanie, from a previous marriage.

¶ 4. Stephen was first married at age seventeen. That marriage lasted twenty-eight years and produced four children. Paula was also first married at age seventeen. That marriage lasted for eight months. She then married Mark McCul-ley in 1989, and that marriage produced Stephanie. She divorced McCulley on May 7, 1993, and married her third husband, Eddie Mayo, on May 27, 1993. Mayo committed suicide in May of 1995. At the time of Mayo’s death, Paula met Stephen. During this time, Stephen was a coroner at the funeral home that conducted Mayo’s funeral.

¶ 5. In June of 1995, the two started a sexual relationship, and Paula became pregnant. Before her marriage to Ste[217]*217phen and while she was pregnant, Paula moved in with Stephen. They married and lived together until their separation in May of 2000.

¶ 6. During the period they were together, Stephen changed jobs nine times. At the same time, Paula worked in the store the couple owned for about a year and worked as a welder for about a year just before the separation.

ANALYSIS AND DISCUSSION OF THE ISSUES

Standard of Review

¶ 7. The standard of review in child custody cases is rather limited. We reverse only if a chancellor is manifestly in error or has applied an erroneous legal standard. Lee v. Lee, 798 So.2d 1284, 1288(¶ 14) (Miss.2001) (citing Williams v. Williams, 656 So.2d 325, 330 (Miss.1995)). The chancellor has the sole responsibility to determine the credibility of witnesses and evidence, and the weight to be given each. Id. (citing Chamblee v. Chamblee, 637 So.2d 850, 860 (Miss.1994)). In custody matters, we, as an appellate court, shall not disturb the decisions of chancellors unless it is clear that justice and the law require us to do so. Id.

I. WHETHER THE TRIAL COURT ERRED IN ITS APPLICATION AND ANALYSIS OF THE AL-BRIGHT FACTORS

¶ 8. In child custody cases, the polestar consideration is the best interest of the child, and this must always be kept paramount. Lee, 798 So.2d at 1288(¶ 15) (citing Sellers v. Sellers, 638 So.2d 481, 485 (Miss.1994)). To help guide us to a proper determination as to custody, the court considers the following factors in determining the child’s best interests: (1) age, health and sex of the child; (2) a determination of the parent that has had the continuity of care prior to the separation; (3) which 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 the 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 other factors relevant to the parent-child relationship. Id. (citing Albright v. Albright, 437 So.2d 1003, 1005 (Miss.1983)).

¶ 9. While 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. Id. Determining custody of a child is not an exact science. Id.

¶ 10. In the case before us, the chancellor made on-the-record findings for each Albright factor and obviously weighed the concerns of both parties. However, Paula contends the chancellor manifestly erred by making certain findings not supported by substantial evidence. She also argues that the chancellor failed to make findings in her favor which were supported by the evidence. Therefore, it is appropriate that we briefly revisit the chancellor’s analysis of each Albright factor to see if he committed manifest error.

(1) Physical, Mental Health, and Age of the Parents

¶ 11. In considering this factor, the chancellor observed that the age of the parents was very significant because the child was only five years old. He noted that the mother was only thirty-three while the father was fifty-nine. Therefore, [218]*218the chancellor determined that the age factor favored the mother. The chancellor observed that it was questionable whether the father would remain physically able to raise the child the next sixteen years.

¶ 12. As to the physical and mental health of the parties, the chancellor found that Stephen had polyps, which were not malignant, removed from his colon and high blood pressure which is now under control. On the other hand, Paula suffered from back problems that often restricted her activity. Two witnesses gave testimony concerning their observation of Paula’s physical condition. They testified that on numerous occasions Paula appeared tired and suffered from headaches which caused her to have to lie down or take something to help remedy her condition. Photos were admitted into evidence which showed she has been overweight in the past, while at trial, she appeared significantly underweight. Some witnesses suggested she had bulimia. Paula denied this claim. Paula testified she regularly took Herbolite, drank herbal tea, and greatly restricted her diet. There was testimony that her cooking was limited, and she regularly proclaimed she did not cook. The chancellor expressed concern about placing the child with Paula if she was obsessed with dieting. The chancellor found that Paula would probably not provide the child with a proper diet and concluded that the mental health factor favored Stephen.

(2) Stability of the Home Environment

¶ 13. The chancellor found that Stephen had not made wise employment choices in that he had changed jobs with great frequency since 1996. Although Stephen claimed Paula persuaded him to make some of these changes, the chancellor noted that Stephen was twenty-six years older than Paula. Therefore, Stephen must be held responsible for his employment decisions. Obviously, the chancellor commented, these decisions were not very wise because, as a result, Stephen had lost his home. The chancellor concluded that this factor favored Paula.

(S) Age, Health and Sex of the Child

¶ 14.

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Bluebook (online)
837 So. 2d 215, 2003 Miss. App. LEXIS 50, 2003 WL 245362, Counsel Stack Legal Research, https://law.counselstack.com/opinion/clay-v-clay-miss-2003.