Dearman v. Dearman

811 So. 2d 308, 2001 WL 35981
CourtCourt of Appeals of Mississippi
DecidedJanuary 16, 2001
Docket1999-CA-01106-COA
StatusPublished
Cited by7 cases

This text of 811 So. 2d 308 (Dearman v. Dearman) 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
Dearman v. Dearman, 811 So. 2d 308, 2001 WL 35981 (Mich. Ct. App. 2001).

Opinion

811 So.2d 308 (2001)

Shelley L. DEARMAN (Mitchell), Appellant,
v.
James A. DEARMAN, Jr., James A. Dearman, Sr. and Diane Dearman, Appellees.

No. 1999-CA-01106-COA.

Court of Appeals of Mississippi.

January 16, 2001.

*309 Karen J. Young, Gulfport, Attorney for Appellant.

Timothy Lee Murr, Harry M. Yoste, Jr., Gulfport, Attorneys for Appellees.

Before McMILLIN, C.J., LEE, and PAYNE, JJ.

*310 PROCEDURAL HISTORY

PAYNE, J., for the Court:

¶ 1. In November of 1993, Shelley Dearman (Shelley) and James A. Dearman, Jr. (Jamie) were granted an irreconcilable differences divorce in the Harrison County Chancery Court. Custody of Jamie and Shelley's baby girl was awarded to the child's paternal grandparents, co-defendants James A. Dearman, Sr. and Diane Dearman. In August 1995, Shelley filed a motion to set aside or modify the judgment, which the chancellor denied. After a two day trial in May 1999, the chancellor changed custody from the grandparents to joint legal and joint physical custody with Shelley and Jamie, reserving visitation rights for the paternal grandparents. With the current appeal, Shelley asks this Court to reverse on the custody issue and to award primary custody of the child to her.

FACTS

¶ 2. Shelley Dearman became pregnant at age fifteen and married then nineteen year old Jamie Dearman, the child's father. Their daughter, Brooke, was born March 26, 1993, and after a marriage of fifteen months, the Dearmans divorced in November 1993. The chancellor granted the divorce based on irreconcilable differences and awarded custody of the child to James Dearman Sr. and Diane Dearman, the paternal grandparents.

¶ 3. A trial was held concerning Shelley's motion for modification. The chancellor adjudged that custody of the minor child should be joint legal and joint physical between Shelley and Jamie, and that the paternal grandparents would have visitation rights with the child. Shelley now appeals and asks this Court to award her primary custody of the child.

ANALYSIS OF THE ISSUES PRESENTED

STANDARD OF REVIEW

¶ 4. With this appeal, Shelley Dearman Mitchell raises the following issues for our review:

I. THE TRIAL COURT IGNORED THE "TENDER AGE DOCTRINE" IN NOT AWARDING PRIMARY CUSTODY OF THE MINOR CHILD TO SHELLEY DEARMAN MITCHELL.
II. THE TRIAL COURT ERRED IN CALCULATING CUSTODY RIGHTS EACH PARENT WOULD HAVE AND IN SETTING VISITATION RIGHTS WITH THE PATERNAL GRANDPARENTS.
III. THE TRIAL COURT FAILED TO ADDRESS THANKSGIVING VISITATION WITH THE CHILD.
IV. THE TRIAL COURT ERRED IN ALLOWING TESTIMONY CONCERNING CIRCUMSTANCES AND CONDITIONS THAT EXISTED PRIOR TO THE AUGUST 1, 1995 JUDGMENT.

¶ 5. Our standard of reviewing a chancellor's award of custody or refusal to modify custody is well-stated: "we will not disturb the findings of a chancellor unless those findings are clearly erroneous or an erroneous legal standard was applied." Mercier v. Mercier, 717 So.2d 304(¶ 8) (Miss.1998) (citations omitted). As described herein, we affirm the chancellor on all issues.

DISCUSSION OF THE ISSUES

I. THE TRIAL COURT IGNORED THE "TENDER AGE DOCTRINE" IN NOT AWARDING PRIMARY CUSTODY OF THE MINOR CHILD TO SHELLEY DEARMAN MITCHELL.

*311 ¶ 6. Shelley argues the chancellor erred in awarding joint legal and joint physical custody of the minor to Jamie and herself when neither of them asked for this arrangement. Rather, Shelley petitions now for primary care, custody and control over the child with reasonable visitation rights to Jamie. Alternatively, if we choose not to alter the custody arrangement, Shelley asks that we render or remand so that physical custody can be granted to Shelley during the school year with reasonable visitation rights to Jamie.

¶ 7. Finding neither parent to be more fit than the other, the chancellor awarded physical custody of the child to Jamie during the academic school year, every second and fourth weekend of each month, and seven consecutive days each summer and various holidays. Jamie's parents were given visitation every fifth weekend plus seven consecutive days during the summer. Shelley was given custody for six weeks during the summer and every first and third weekend of the month. Shelley objects to this schedule because, by her calculations, this arrangement only leaves her one-fourth of the year with her daughter.

¶ 8. Shelley contends that the chancellor failed to take into consideration the Albright factors, and she places much emphasis on the "tender age doctrine." First, regarding the tender age doctrine, "[t]he tender years doctrine has been gradually weakened in Mississippi jurisprudence to the point of now being only a presumption. Today, the age of a child is simply one of the factors that we consider in determining the best interests of the child." Mercier, 717 So.2d at (¶ 14) (citing Albright v. Albright, 437 So.2d 1003, 1005 (Miss.1983)).[1] The child's age is not the sole determinant, but is only one of the elements to consider in deciding custody.

¶ 9. In the Dearmans's case, the chancellor stated in his judgment:

The Court has applied each of the factors outlined in Albright and considered the totality of the circumstances as shown in the proof at trial.... The Court having weighed the Albright factors finds each parent has their strengths and each their weaknesses. Even after weighing all the factors, neither parent proved themselves clearly more fit than the other. Without detailing each factor in the analysis, the Court did have certain concerns which influenced its custody decision....

The chancellor then went on to discuss specifically Shelley's questionable home environment versus Jamie's stable home, and found that Shelley's home lacked those religious influences that were found in Jamie's home. The chancellor also noted Shelley's lack of involvement in the child's school and deemed the best interests of the child would not permit her transferring to another school, since the child had already developed strong relationships with her teachers and fellow students. We find the chancellor most certainly had the child's best interests in mind in awarding custody, and his analysis in his judgment was succinct enough to meet the Albright standard, since he said the parents were neither one more fit than the other and were the same in all respects except for those he chose to delineate in his order.

¶ 10. We note that with his modification the chancellor awarded joint legal and joint physical custody to both Shelley and Jamie, with visitation rights to Jamie's parents. Currently, Miss.Code Ann. § 93-5-24(2) *312 (Rev.1994) reads: "Joint custody may be awarded where irreconcilable differences is the ground for divorce, in the discretion of the court, upon application of both parents." According to Morris v. Morris, 758 So.2d 1020 (Miss.Ct.App.1999), this award of joint custody would be improper in this irreconcilable differences divorce since neither party asked for joint custody. However, looking to the actual visitation and custody schedule, we find that in reality, the chancellor's custody award was mislabeled as "joint custody" when it amounted to de facto physical custody to Jamie with liberal visitation rights to the mother. Thus, we will allow the modification to stand.

¶ 11.

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Cite This Page — Counsel Stack

Bluebook (online)
811 So. 2d 308, 2001 WL 35981, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dearman-v-dearman-missctapp-2001.