Davis v. Stevens

85 So. 3d 943, 2012 WL 1292624, 2012 Miss. App. LEXIS 217
CourtCourt of Appeals of Mississippi
DecidedApril 17, 2012
Docket2010-CA-01400-COA
StatusPublished
Cited by9 cases

This text of 85 So. 3d 943 (Davis v. Stevens) 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
Davis v. Stevens, 85 So. 3d 943, 2012 WL 1292624, 2012 Miss. App. LEXIS 217 (Mich. Ct. App. 2012).

Opinion

MAXWELL, J.,

for the Court:

¶ 1. Sarah Davis appeals the Harrison County Chancery Court’s award of physical custody of her six-year-old daughter, Amy Stevens, to the child’s father, Jason Stevens. 1 She contests several aspects of the chancellor’s Albright 2 analysis, includ *945 ing the determination Davis deliberately made false accusations of sexual abuse against Stevens. Finding no manifest error in the chancellor’s judgment, we affirm.

FACTS

¶ 2. Davis and Stevens dated for several years but never married. The two had one child together but separated when the child, Amy, was approximately ten months old. Soon after the separation, Davis filed a paternity suit against Stevens. Stevens admitted paternity but counterclaimed for legal and physical custody of Amy. The chancellor awarded primary physical custody to Stevens, with the parties having joint legal custody. The chancellor granted visitation to Davis and ordered her to pay child support based on the child-support guidelines. On appeal, Davis challenges the chancellor’s Albright findings.

STANDARD OF REVIEW

¶ 3. “Chancellors are afforded wide latitude in fashioning equitable remedies in domestic relations matters, and their decisions will not be reversed if the findings of fact are supported by substantial credible evidence in the record.” Henderson v. Henderson, 757 So.2d 285, 289 (¶ 19) (Miss.2000). We will not disturb a chancellor’s factual findings unless the chancellor’s decision was manifestly wrong or clearly erroneous, or the chancellor applied an improper legal standard. Wallace v. Wallace, 12 So.3d 572, 575 (¶ 12) (Miss. Ct.App.2009). We do not substitute our “judgment for that of the chancellor, even if [we disagree] with the findings of fact and would arrive at a different conclusion.” Coggin v. Coggin, 887 So.2d 772, 774 (¶ 3) (Miss.Ct.App.2003). When reviewing a chancellor’s interpretation and application of the law, our standard of review is de novo. Tucker v. Prisock, 791 So.2d 190, 192 (¶ 10) (Miss.2001).

DISCUSSION

I. Chancellor’s Albright Findings

¶ 4. “In all cases involving child custody ... the polestar consideration is the best interest and welfare of the child.” D.M. v. D.R., 62 So.3d 920, 923 (¶ 11) (Miss.2011). The Albright factors are a guide for chancellors in weighing the facts to determine the child’s best interest. Lee v. Lee, 798 So.2d 1284, 1288 (¶ 15) (Miss. 2001) (citing Albright, 437 So.2d at 1005). An Albright analysis is not, by any means, a mathematical equation. Id. And the factors are not meant to be weighed equally in every case. Divers v. Divers, 856 So.2d 370, 376 (¶ 27) (Miss.Ct.App.2003). In some cases, one or two factors may weigh more heavily and control the custody determination. Id. The supreme court has held that “[a]ll the [Albright] factors are important, but the chancellor has the ultimate discretion to weigh the evidence the way he sees fit.” Johnson v. Gray, 859 So.2d 1006, 1013-14 (¶ 36) (Miss.2003).

¶ 5. The Albright factors include: (1) the child’s age, health, and sex; (2) which parent had the continuity of care before the separation; (3) parenting skills and the willingness and capacity to provide the primary child care; (4) each parent’s employment and its responsibilities; (5) each parent’s physical and mental health and age; (6) the emotional ties between the child and each parent; (7) each parent’s moral fitness; (8) the child’s home, school, and community record; (9) the child’s preference, if the child is of sufficient age to express a preference by law; (10) the stability of the home environment; and (11) any other equitable factor relevant to the parent-child relationship. Al-bright, 437 So.2d at 1005.

*946 ¶ 6. Here, the chancellor made findings of fact and conclusions of law on each Albright factor, finding four of the factors favored Stevens, three favored Davis, and two favored neither party. The chancellor observed the demeanor of both Davis and Stevens as well as Amy’s demeanor with each of her parents. Considering the totality of the circumstances, the chancellor held Stevens should be awarded primary physical custody of Amy.

(1)Age, Health, and Sex of the Child

¶ 7. Finding this factor favored Stevens, the chancellor focused in part on the fact that since a young age Amy has suffered from allergies and other respiratory ailments. He found these health issues were “caused by her exposure to second hand smoke of primarily her mother and[,] now, also her step-father.” The chancellor also addressed Amy’s “repeated vaginal infections brought on by bubble baths,” which he determined Amy “apparently has continued to be given [by Davis] even though physicians have advised against them.” Amy has also suffered from acid reflux and constipation. The chancellor noted Stevens’s testimony that these symptoms subside when she is provided a healthy diet while in his care.

(2)Continuity of Care

¶ 8. The chancellor found this factor favored Davis, pointing out that Davis has cared for Amy “the vast majority of the time” since the parties’ relationship ended when Amy was about ten months old. Since that time, Stevens’s visitation has been “sporadic at best” until recently when court-ordered visitation has occurred on a regular basis.

(3)Parenting Skills/Willingness and Capacity to Provide Primary Care

¶ 9. Concluding this factor favored Stevens, the chancellor emphasized that Davis has taken Amy “to far too many doctors and other health care specialists for non-issues and has failed to care for the real medical and psychological needs of the child.” The chancellor again emphasized the negative impact of Davis’s cigarette smoking around Amy, and that Stevens’s care “dramatically improves” the child’s health.

(⅛) Employment and Employment Responsibilities

¶ 10. The chancellor found this factor favored Davis in part because Stevens’s income is “sporadic and his work is usually out of town,” although Stevens is home each night. Davis works part time at her husband’s family electrical business. Stevens has been paying $300 per month in child support.

(5) Physical and Mental Health and Age of the Parents

¶ 11. The chancellor found this factor slightly favored Stevens. He noted Stevens does not smoke and is in good health. The chancellor also pointed out that Stevens’s spouse, until recently, was a smoker. The chancellor found Davis has smoked cigarettes since Amy was born, despite being advised that quitting this habit would greatly improve her daughter’s health. The chancellor also observed that Davis’s husband smokes cigarettes. Davis suffers from hyperlipidemia and hypertension requiring her to take medication.

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Bluebook (online)
85 So. 3d 943, 2012 WL 1292624, 2012 Miss. App. LEXIS 217, Counsel Stack Legal Research, https://law.counselstack.com/opinion/davis-v-stevens-missctapp-2012.