Jennifer S. Jenkins v. Tony D. Jenkins

• Court: Court of Appeals of Mississippi
• Decided: March 31, 2020
• Docket: NO. 2018-CA-00857-COA
• Status: Published

Opinion

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

NO. 2018-CA-00857-COA

JENNIFER S. JENKINS APPELLANT

v.

TONY D. JENKINS APPELLEE

DATE OF JUDGMENT: 11/30/2017 TRIAL JUDGE: HON. JERRY G. MASON COURT FROM WHICH APPEALED: CLARKE COUNTY CHANCERY COURT ATTORNEY FOR APPELLANT: JAMES A. WILLIAMS ATTORNEY FOR APPELLEE: LEIGH ANN KEY NATURE OF THE CASE: CIVIL - CUSTODY DISPOSITION: AFFIRMED - 03/31/2020 MOTION FOR REHEARING FILED: MANDATE ISSUED:

BEFORE J. WILSON, P.J., TINDELL AND C. WILSON, JJ.

TINDELL, J., FOR THE COURT:

¶1. The Clarke County Chancery Court granted Jennifer and Tony Jenkins an

irreconcilable-differences divorce. The chancellor awarded Tony legal and physical custody

of the parties’ two minor children and granted Jennifer visitation. While the chancellor

resolved additional contested issues between the parties, Jennifer’s sole argument on appeal

focuses on whether the chancellor erred by granting Tony custody of the children. Finding

no error as to this issue, we affirm the chancery court’s judgment.

FACTS

¶2. Jennifer and Tony married on December 14, 2002. The couple had two minor

children during their marriage: a son born in 2006 and a daughter born in 2009. In 2008, Tony and Jennifer moved to Petal, Mississippi, where they lived in a home owned by

Jennifer’s mother and stepfather. Jennifer’s mother and stepfather conveyed the home to

Jennifer in 2009, and in 2013, they conveyed to Jennifer a vacant lot adjacent to the home.

¶3. In early 2015, Tony lost his job. In March or April 2015, he obtained new

employment with Dart Container in Quitman, Mississippi. Tony moved into his parents’

home in Quitman while Jennifer, an elementary school teacher, remained in Petal with the

children until the end of the school year. In June or July 2015, Jennifer and the children

joined Tony in Quitman. The family continued to reside in Tony’s parents’ home. Jennifer

obtained work for the 2015-2016 school year as an elementary teacher for the Quitman

School District, and the children attended Quitman Elementary School. In September 2015,

the parties stopped cohabitating as husband and wife but continued to reside together in

Tony’s parents’ home.

¶4. On May 25, 2016, Jennifer filed a complaint for divorce on the ground of habitual

cruel and inhuman treatment or, in the alternative, irreconcilable differences. She then

moved out of Tony’s parents’ home. Jennifer also resigned from her teaching position with

the Quitman School District. In June 2016, Jennifer visited her sister, Karen Velkey, in

Newport News, Virginia. During the visit, Jennifer applied for a teaching position in

Virginia near her sister. Although Jennifer also applied for a teaching position with the Petal

School District, she applied for no other teaching positions in Mississippi. After failing to

obtain the position in Petal where the family had once lived, Jennifer obtained employment

in Hampton City, Virginia, for the 2016-2017 school year. For the 2017-2018 school year,

2 Jennifer obtained a position in Newport News closer to her sister’s home.

¶5. After a hearing on the parties’ motions for temporary relief, the chancellor entered a

memorandum opinion and order that granted Tony temporary custody of the parties’ children.

Tony and the children continued to reside with Tony’s parents while Jennifer moved to

Newport News to live with her sister, brother-in-law, and two nephews. Jennifer and

Karen’s brother also lived in the home’s basement apartment, which had its own separate

entrance.

¶6. On October 13, 2017, the parties consented to a divorce on the ground of

irreconcilable differences. In his memorandum opinion entered on November 30, 2017, the

chancellor discussed the issue of child custody and conducted an analysis of the following

factors from Albright v. Albright, 437 So. 2d 1003, 1005 (Miss. 1983):

(1) age, health, and sex of the child;

(2) continuity of care prior to the separation;

(3) parenting skills and the willingness and capacity to provide primary child care;

(4) the employment of the parent and responsibilities of that employment;

(5) the physical and mental health and age of the parents;

(6) the emotional ties of parent and child;

(7) the 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;

3 (10) the stability of the home environment and employment of each parent; and

(11) other factors relevant to the parent-child relationship.

¶7. The chancellor determined that the children’s preference was inapplicable since

neither child had reached the age designated sufficient by law to express a preference. The

chancellor then found the following factors to be neutral: (1) the age, health, and sex of the

children; (2) the parents’ capacity to provide primary child care; (3) the mental health and

age of the parents; (4) the parents’ moral fitness; and (5) the emotional ties between the

parents and children.

¶8. The chancellor found that the following remaining factors weighed in Jennifer’s favor:

(1) the continuity of care prior to the separation; (2) parenting skills; and (3) the parents’

employment and the responsibilities of that employment. The chancellor further determined

that the following factors favored Tony: (1) the willingness to provide primary child care;

(2) the physical health of the parents; (3) the children’s home, school, and community

records; and (4) the stability of the home environment provided by each parent.

¶9. After conducting an Albright analysis, the chancellor concluded it was in the

children’s best interests for Tony to remain the custodial parent. The chancellor therefore

awarded Tony exclusive physical and legal custody of the children and granted Jennifer

reasonable visitation. By a final judgment also entered on November 30, 2017, the

chancellor granted the parties an irreconcilable-differences divorce and incorporated by

reference his memorandum opinion. Aggrieved by the chancellor’s grant of child custody

to Tony, Jennifer appeals.

4 STANDARD OF REVIEW

¶10. “The polestar consideration in any child[-]custody matter is the best interest and

welfare of the child. To determine the best interest of the child, Mississippi courts are guided

by the factors set forth in Albright.” Martin v. Martin, 282 So. 3d 703, 708 (¶16) (Miss. Ct.

App. 2019) (citation and internal quotation mark omitted). “This Court applies a limited

standard of review in child-custody cases. We will reverse a chancery court’s decision

regarding child[-]custody determinations only when the decision of the trial court was

manifestly wrong or clearly erroneous, or an erroneous legal standard was employed.” Id.

at (¶15) (citations and internal quotation marks omitted). “As long as substantial evidence

supports the chancellor’s findings, we are without authority to disturb them, even if we

would have found otherwise as an original matter.” Blevins v. Wiggins, 284 So. 3d 808, 811

(¶10) (Miss. Ct. App. 2019). We review questions of law de novo. Id.

DISCUSSION

¶11. Jennifer contends that the chancellor’s main reason for denying her custody of the

children rested on the fact that she had moved to Virginia. She asserts the chancellor’s ruling

in this case “stands for the proposition that[,] all else [being] equal[,] a parent better stay in

the vicinity of the marital home or he or she will not be a custodial parent.” Jennifer asserts

that the chancellor’s over-emphasis on her relocation to Virginia led him to misapply the

Albright factors and to not act in the children’s best interests. Jennifer therefore asks this

Court to reverse the chancellor’s award of sole legal and physical custody to Tony.

¶12. In arguing that the chancellor misapplied the Albright factors, Jennifer appears to take

5 issue with the chancellor’s analysis of the following factors: (1) the parenting skills and the

willingness and capacity to provide primary child care; (2) the home, school, and community

records of the children; (3) the stability of the home environment and employment of each

parent; and (4) other factors relevant to the parent-child relationship.1

1. Parenting Skills and the Willingness and Capacity to Provide Primary Child Care

¶13. With regard to this factor, the chancellor found that Jennifer had demonstrated the best

parenting skills, that both parents had demonstrated a capacity to provide primary child care,

but that Tony had demonstrated a greater willingness to provide primary child care. Jennifer

contends the chancellor erred by not concluding that all the considerations analyzed under

this factor favor her.

a. Parenting Skills

¶14. The chancellor found that this consideration favored Jennifer due to Tony’s

manifestation of “an inability to control his actions when he is extremely displeased with the

children or his mother.” Jennifer offered into evidence six video and/or audio recordings she

had secretly made of interactions that occurred while the family lived together at her in-laws’

home. Jennifer testified that she recorded the videos after she and Tony had separated but

before she had moved out of her in-laws’ home. Jennifer contended the recordings, along

with the totality of the other evidence presented, demonstrated that she should receive

1 Jennifer’s appellate brief contains comments that indicate her disagreement with the chancellor’s findings on several other factors. But because Jennifer fails to specifically argue that the chancellor erred with regard to these factors and to provide caselaw to support any such contention, we decline to address these additional factors on appeal. See M.R.A.P. 28(a)(7).

6 primary custody of the parties’ children.

¶15. After viewing the recordings, the chancellor concluded that two of the recordings

were brief and failed to “illustrate inappropriate conduct by Tony.” As to a third recording

in which Tony argued with his mother and daughter about whether the daughter should have

apple juice, the chancellor concluded that “Tony’s conduct was not inappropriate.” With

regard to the two remaining recordings, the chancellor found that “Tony was loud and

disrespectful to his mother and his father in the presence of the children” in one and that he

“was loud, profane[,] and verbally abusive” toward the children in the other.

¶16. During his testimony, Tony acknowledged that his language and conduct in some of

the recordings may have been inappropriate, and he stated that no other similar incidents had

occurred since Jennifer had moved out of his parents’ house. Tony further vowed that no

similar conduct would occur in the future. Based on the evidence presented, the chancellor

concluded that “[t]he specific events manifesting Tony’s inappropriate conduct” were limited

to the stressful time when “Jennifer had terminated the marital relationship” but when “she

and Tony continued to live in the same bedroom in his parent[s’] home.” Jennifer argues on

appeal, however, that the testimony and evidence showed that “Tony acted and spoke that

way at all times[.]”

¶17. As the chancellor noted, the recordings Jennifer entered into evidence were limited

to the specific time period when the parties had separated but were still living together in

Tony’s parents’ home. While Jennifer testified that the type of behavior Tony displayed on

the recordings was indicative of his behavior in general, Tony disputed this claim. “[W]hen

7 there is conflicting testimony, the chancellor, as the trier of fact, is the judge of the credibility

of the witnesses and the weight of their testimony, as well as the interpretation of evidence

where it is capable of more than one reasonable interpretation.” Mayton v. Oliver, 247 So.

3d 312, 322 (¶34) (Miss. Ct. App. 2017). In light of the conflicting testimony and the

deference we give to a chancellor’s findings on witness testimony, we cannot say that the

chancellor manifestly erred in his determination of this issue.

b. Willingness and Capacity to Provide Primary Child Care

¶18. Jennifer also disputes the chancellor’s conclusion that Tony showed a greater

willingness to provide primary child care.2 In his opinion, the chancellor stated the

following:

Jennifer and Tony lived in Mississippi after they married in 2002. They lived in the Hattiesburg-Petal area until they moved to Quitman, Mississippi[,] during the summer of 2015. Jennifer had been employed at Mississippi schools since she and Tony married. She was employed as an elementary teacher during the 2015-2016 school year by the Quitman School District, and she resigned at the end of the school year. She applied for one Mississippi teacher position at Petal Elementary School[,] and she was not employed. Although she had taught school in other school districts in the immediate area, she did not apply for another job. She had accepted a teaching job with the Hampton City Schools in Virginia before this court rendered the Memorandum Opinion and Order on July 20, 2017, and she disregarded the possibility that the children could remain in Clarke County, Mississippi. Jennifer has continued to live in Virginia while the children continue to live in Clarke County, Mississippi. The distance between Jennifer’s Virginia home and the children’s Clarke County, Mississippi home is approximately 970 miles. Jennifer had the opportunity to live and work in Mississippi, but she preferred to move to and live in Virginia. This court finds that Jennifer and Tony have an equal capacity to provide primary care for the children, but that Tony has a greater willingness to provide primary child care than does Jennifer. The

2 As noted, the chancellor found that both parties had demonstrated an equal capacity to provide primary child care.

8 parent who has the willingness and capacity to provide primary child care factor favors Tony as the custodial parent.

¶19. Jennifer asserts the chancellor’s discussion reveals that he faulted her for moving to

Virginia rather than remaining in Mississippi. She further argues the chancellor erroneously

concluded her move evinced an unwillingness to provide primary child care when the

evidence actually demonstrated that she “had a history of the capacity and willingness

[necessary] to provide [primary] care for the children.” Arguing that this factor clearly

favors her, she contends that the chancellor manifestly erred in finding otherwise.

¶20. Upon review, we cannot agree with Jennifer’s contention that the chancellor unduly

faulted her for moving to Virginia. Although the chancellor clearly considered the fact that

Jennifer had moved to Virginia rather than remaining in the area where the children had been

living and attending school, we do not find from the record that the chancellor placed any

unnecessary emphasis on this fact. Further, we cannot say after reviewing the record that the

chancellor manifestly erred in concluding that this factor weighed in Tony’s favor. Because

the record contains substantial evidence to support the chancellor’s determination on this

factor, we find no error.

2. Children’s Home, School, and Community Records

¶21. Jennifer also challenges the chancellor’s finding that the children’s home, school, and

community records weighed in Tony’s favor.

¶22. Relevant to the children’s home record, the chancellor noted that after leaving her in-

laws’ home, Jennifer moved in with her sister, brother-in-law, and two nephews in Virginia.

Although the parties’ children visited their aunt’s home in Virginia, they continued to reside

9 primarily in Quitman with their father and grandparents. In fact, as the chancellor

recognized, the children had resided in their paternal grandparents’ home since June or July

2015—first with their grandparents and both parents, and then with their grandparents and

Tony after Jennifer moved out in May 2016. The chancellor further noted that Tony and his

parents had recently been working on and adding to a nearby trailer. Tony testified that he

planned to move into the trailer with the children so they could have a home of their own but

remain close to his parents.

¶23. Although the homes provided by Jennifer and Tony differed in style and environment,

the chancellor found both homes to be suitable. The chancellor further stated, though, that

Jennifer was unsure how long she would continue to live in her sister’s home while the trailer

near Tony’s parents’ home was ready for Tony and the children to occupy. Finding that the

children were more familiar with the home environment provided by Tony, the chancellor

concluded that the children’s home record favored Tony.

¶24. As to the children’s school record, the chancellor noted that the children’s grades had

varied from year to year. Even so, he found that the children “have been and continue to be

good students.” The chancellor concluded this was the case even though the parties’ son had

so far attended school in three different districts and their daughter had attended school in

two different districts. The chancellor stated that the effect on the children of changing

schools was not known. As evidenced by the record, if Jennifer received custody, she

planned to relocate the children to Virginia with her—resulting in another change in school

for the children. Tony, however, planned to continue to reside in Quitman near his parents

10 and in the same district where the children currently attended school. Based on the evidence

before him, the chancellor concluded the children’s school record also favored Tony as the

custodial parent.

¶25. Finally, the chancellor found that the children’s community record also favored Tony.

As discussed, the children resided with or near their paternal grandparents for the majority

of their lives. The chancellor also acknowledged that other extended relatives on Tony’s side

lived in Mississippi. In addition, the evidence showed the children attended church and

school in the area and participated in local extracurricular activities such as scout programs

and sports. Although the children had visited their aunt’s home in Virginia, the chancellor

concluded their ties to their community in Mississippi were stronger. As a result, the

chancellor stated that this consideration weighed in Tony’s favor.

¶26. Based on a review of the record, we cannot say that the chancellor abused his

discretion or manifestly erred in finding that the children’s home, school, and community

records all favored Tony as the custodial parent. Because substantial record evidence

supports the chancellor’s determination as to this factor, we find no error.

3. Stability of the Home Environment and Each Parent’s Employment

¶27. The chancellor found that Jennifer’s employment and the related responsibility of her

employment favored her as the custodial parent but that the stability of the home environment

provided by Tony favored him. While Jennifer disputes the chancellor’s determination as

to the stability of the home environment, we find that this conclusion was within the

chancellor’s discretion to make and was supported by substantial evidence. We therefore

11 find no manifest error.

4. Other Factors Relevant to the Parent-Child Relationship

¶28. Jennifer argues the chancellor should also have taken into account during his analysis

the parties’ respective educational levels. Jennifer asserts the evidence reflects that she is

better educated than Tony and holds a more proven record of job stability. While the

chancellor did not specifically address these considerations in his analysis, he clearly

discussed each party’s employment and related work history. In fact, the chancellor even

concluded that the parties’ employment and the responsibilities of their employment was a

factor that favored Jennifer as the custodial parent. We therefore find this argument lacks

merit.

CONCLUSION

¶29. Upon review, we cannot say that the chancellor was manifestly wrong, was clearly

erroneous, or applied an incorrect legal standard in his Albright analysis. Because substantial

evidence supported the chancellor’s findings, we affirm the chancellor’s grant of sole legal

and physical custody of the parties’ children to Tony.

¶30. AFFIRMED.

BARNES, C.J., CARLTON AND J. WILSON, P.JJ., GREENLEE, WESTBROOKS, McDONALD, LAWRENCE, McCARTY AND C. WILSON, JJ., CONCUR.