Franks v. Franks

873 So. 2d 135, 2004 Miss. App. LEXIS 416, 2004 WL 1049223
CourtCourt of Appeals of Mississippi
DecidedMay 11, 2004
DocketNo. 2002-CA-01345-COA
StatusPublished

This text of 873 So. 2d 135 (Franks v. Franks) 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
Franks v. Franks, 873 So. 2d 135, 2004 Miss. App. LEXIS 416, 2004 WL 1049223 (Mich. Ct. App. 2004).

Opinion

BRIDGES, P.J.,

for the Court.

¶ 1. Amanda J. Franks filed a complaint for divorce against Kenneth Scott Franks seeking a divorce on the grounds of habitual cruel and inhuman treatment and habitual drunkenness. Amanda also sought custody of the two minor children, child support and a division of the marital property accumulated during the marriage. In his answer Scott filed a cross-claim for divorce on the grounds of habitual cruel and inhuman treatment and adultery. Scott also sought custody of the two minor children, child support and a division of the marital property accumulated during the marriage. The chancellor granted Scott a divorce on the ground of adultery, and Amanda was awarded custody of the children subject to Scott’s visitation.

STATEMENT OF THE ISSUES

I. WAS IT ERROR FOR THE CHANCELLOR TO AWARD CUSTODY OF THE MINOR CHILDREN TO AMANDA FRANKS?

FACTS

¶ 2. Amanda and Scott began seeing each other whén she was seventeen and he was twenty-six. She became pregnant and they were married before she graduated high school. They lived in Alabama with the Franks or in a trailer until they built their home in Caledonia, Mississippi. Amanda worked to get her registered nurse’s degree and worked for two nursing homes during the marriage. Amanda also had long periods of unemployment during the marriage but when working she earned approximately $40,000 per year. Scott was a supervisor at Weyerhaeuser and earned approximately $28,000 per year. Due to the nature of their employment, both Scott and Amanda worked shift work.

¶ 3. Amanda admitted to a one night affair with a fellow student while she was earning her nursing degree. There was also proof that she had a flirtation with a co-worker during the marriage but there was no proof that it went further. Once the parties separated, Amanda was seen spending time with another man whom she has since married. Scott used this evidence to prove adultery which was the ground on which the chancellor ultimately granted the divorce. The chancellor determined that both Amanda and Scott provided insufficient evidence to prove habitual cruel and inhuman treatment and that Amanda lacked sufficient evidence to prove habitual drunkenness. The chancellor did find that the evidence proved habitual cruel and inhuman treatment when she evaluated custody under the Albright factors.

ANALYSIS

¶ 4. The standard of review in this domestic relations matter is limited by the substantial evidence/manifest error rule. Stevison v. Woods, 560 So.2d 176, 180 (Miss.1990). “This Court will not disturb the findings of a chancellor unless the chancellor was manifestly wrong, clearly erroneous or an erroneous legal standard was applied.” Bell v. Parker, 563 So.2d 594, 596-97 (Miss.1990). See also Ferguson v. Ferguson, 639 So.2d 921, 930 (Miss.1994); Faries v. Faries, 607 So.2d 1204, 1208 (Miss.1992). “On appeal [we are] required to respect the findings of fact made by a chancellor supported by credible evidence and not manifestly wrong.” Newsom v. Newsom, 557 So.2d 511, 514 (Miss.1990). See also Dillon v. Dillon, 498 So.2d 328, 329 (Miss.1986). This is particularly true in the areas of divorce, alimony and child support. Tilley v. Tilley, 610 [137]*137So.2d 348, 351 (Miss.1992); Nichols v. Tedder, 547 So.2d 766, 781 (Miss.1989).

II. WAS IT ERROR FOR THE CHANCELLOR TO AWARD CUSTODY OF THE MINOR CHILDREN TO AMANDA FRANKS?

¶ 5. The chancellor properly considered the custody of the minor children in relation to the best interests of the children as applied under the Albright test. In the opinion of the court the chancellor considered each Albright factor individually and concluded which, if either parent, the factor favored. Albright v. Albright, 437 So.2d 1003, 1005 (Miss.1983). Those factors and the chancellor’s conclusions are as follows:

1. Age and sex of the child-favored both parents.
2. Continuity of care prior to the separation — favored the mother.
3. Parenting skills — favored both parents.
4. Employment of the parent and responsibilities of that employment — favored the mother.
5. Physical and emotional fitness and age of the parents — favored the mother.
6. Emotional ties of parent and child— favored both parents.
7. Moral fitness of parent — favored neither parent.
8. Home, school and community record of the child — favored the mother.
9. The preference of the child at an age sufficient to express a preference by law — not applicable.
10. Stability of the home environment — favored neither parent.
11. Other factors relevant to the parent-child relationship — favored the mother.

As is evident, eight factors favored Amanda while only three favored Scott. In his appeal Scott offers evidence for every factor but numbers 8 and 9 that the chancellor’s decision was manifestly wrong. The chancellor’s basis and Scott’s grounds for reversal are discussed separately for each factor below.

Age and sex of the child

¶ 6. The chancellor offered no reason for finding that this factor favored both parents other than that Amanda and Scott are both parents of the children and that the children were six and two at the time of the divorce. Scott, in his appeal, claims that he took the children to get their various shots and considered himself their primary caretaker especially since he held their daughter so much. Scott believed since their son was becoming a “young lad” it was appropriate for the father to have custody.

¶ 7. The “tender age” presumption in favor of the mother has been modified over the years to a rebuttable presumption through the development of the Albright factors. Albright, 437 So.2d at 1005. Scott’s many grounds for reversal, not the least of which is his belief that he should be granted custody of the son because they are both male, are inconsistent with the evolution of custody standards under the Albright test.

Continuity of care prior to the separation

¶ 8. The chancellor found that this factor favored Amanda because she was a stay at home mother when their first born was young, she breast fed both children and even though both parents worked shifts she spent more time taking care of the children. Scott bases his belief that this factor should favor him on the fact that he presented photos of a messy house, their son enjoyed going fishing with him and he claims he was like “Mr. Mom” around the [138]*138house. However, the allegations of who was the better caretaker and homemaker is a version of “he said,” “she said” and divination of the truth is better left to the trial judge sitting as the finder of fact. The chancellor was in a better position to hear and interpret the facts given on this issue and Scott presented nothing which proved her result manifestly wrong.

Parenting skills

¶ 9. The chancellor simply stated that both parties were capable.

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Related

Newsom v. Newsom
557 So. 2d 511 (Mississippi Supreme Court, 1990)
Faries v. Faries
607 So. 2d 1204 (Mississippi Supreme Court, 1992)
Albright v. Albright
437 So. 2d 1003 (Mississippi Supreme Court, 1983)
Bell v. Parker
563 So. 2d 594 (Mississippi Supreme Court, 1990)
Dillon v. Dillon
498 So. 2d 328 (Mississippi Supreme Court, 1986)
Ferguson v. Ferguson
639 So. 2d 921 (Mississippi Supreme Court, 1994)
Tilley v. Tilley
610 So. 2d 348 (Mississippi Supreme Court, 1992)
Nichols v. Tedder
547 So. 2d 766 (Mississippi Supreme Court, 1989)
Stevison v. Woods
560 So. 2d 176 (Mississippi Supreme Court, 1990)

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Bluebook (online)
873 So. 2d 135, 2004 Miss. App. LEXIS 416, 2004 WL 1049223, Counsel Stack Legal Research, https://law.counselstack.com/opinion/franks-v-franks-missctapp-2004.