Jones v. Jones

19 So. 3d 775, 2009 Miss. App. LEXIS 172, 2009 WL 822589
CourtCourt of Appeals of Mississippi
DecidedMarch 31, 2009
DocketNo. 2008-CA-00035-COA
StatusPublished

This text of 19 So. 3d 775 (Jones v. Jones) 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
Jones v. Jones, 19 So. 3d 775, 2009 Miss. App. LEXIS 172, 2009 WL 822589 (Mich. Ct. App. 2009).

Opinion

ISHEE, J.,

for the court.

¶ 1. Donald Glenn Jones (“Don”) and Julie Daley Jones (“Julie”) were granted a divorce on the ground of irreconcilable differences on November 6, 2007, and Don was awarded custody of their daughter, Samantha. Aggrieved, Julie now appeals the judgment of the Jefferson Davis County Chancery Court. Finding no error, we affirm.

FACTS

¶ 2. Don and Julie were married on August 10, 1996. They had one child, a daughter named Samantha, who was born on February 5, 1997. Throughout their marriage, they lived in Prentiss, Mississippi, directly across the street from Don’s father. Julie stayed at home and eared for Samantha for the first three years after she was born. When Julie went back to work, the couple shared the household and parenting responsibilities, and Don’s family helped care for Samantha after school when needed.

¶ 3. On September 19, 2001, the parties filed a joint complaint for divorce, citing irreconcilable differences as the ground, in the Chancery Court of Jefferson Davis County. The filed divorce papers provided that Don would maintain the family residence and would have custody of Samantha. Very soon after the complaint was filed, Julie moved to Rhode Island to live with a man she had met on the Internet named Joe; however, the relationship between Julie and Joe ended within several weeks of her arrival. Don traveled to Rhode Island approximately two months after Julie had left Prentiss to ask her to try and reconcile their marriage. She agreed, and they returned home and resumed their marriage for the next six years. During that time, they both worked outside of the home and shared in the parental responsibilities. Don’s family lived nearby, and they continued to help care for Samantha.

¶ 4. Julie spent a great deal of time on the computer, where she met people in internet forums. In 2004, she began corresponding in a chat room with Steve Ash-ton and his wife, who lived in England. Their correspondence continued for over a year, and eventually, Julie and Don made plans to take Samantha to visit the Ash-tons in England for a week in 2006. The plans changed, however, from a one-week trip to a two-week trip, and Don was not able to take that much time off from work. As a result, Julie and Samantha made the trip, while Don stayed home. Unbeknownst to Don, when they were in England, Julie stayed at the Ashtons’ home, and Samantha stayed at the home of the Ashtons’ relatives. Julie returned home with a nude portrait of herself that Steve had painted, which caused suspicions to arise over the nature of her relationship with Steve, but Julie insisted that their relationship was strictly one of friendship. She argued that Steve was an artist, and the portrait was actually of another person with Julie’s head superimposed on the body.

¶ 5. On March 28, 2007, Don filed a complaint for divorce, child custody, and other relief, alleging uncondoned adultery, habitual cruel and inhuman treatment, and, in the alternative, irreconcilable differences as grounds for divorce. Julie filed her answer to the complaint on May 9, 2007, asserting recrimination and condo-nation, and she counterclaimed for a divorce, alleging the grounds of uncondoned adultery, habitual cruel and inhuman treatment, and, in the alternative, irreconcilable differences. The following month, the chancery court entered a temporary order granting joint legal and physical temporary custody of Samantha to both parties. Under the order, custody was alternated [778]*778every two weeks. Don remained in the marital home after the separation, and Julie moved to her mother’s home in Hatties-burg, Mississippi.

¶ 6. The parties filed a property settlement agreement, joint motion to withdraw fault grounds for divorce, and joint consent for judicial determination of outstanding issues on August 21, 2007, and a hearing was held that day on the issues of custody, visitation, and child support. On August 23, 2007, the chancery court entered a temporary order of visitation, whereby Don was awarded physical custody of Samantha so she could continue attending Prentiss Christian School as she had prior to the separation.

¶ 7. The chancery court’s bench ruling was rendered on October 8, 2007, and Julie filed a motion for reconsideration on October 14, 2007. The judgment of divorce was entered on November 6, 2007, by which Don was awarded physical custody of Samantha with Julie receiving visitation rights. Don filed a motion to dismiss the motion for reconsideration on December 3, 2007. The chancery court denied the motion for reconsideration on December 4, 2007, and Julie filed this appeal. Finding no error, we affirm the judgment of the chancery court.

STANDARD OF REVIEW

¶ 8. “An appellate court is to affirm findings of fact by chancellors in domestic cases when they are ‘supported by substantial evidence unless the chancellor abused [his] discretion, was manifestly wrong, clearly erroneous or an erroneous legal standard was applied.’ ” Parker v. South, 913 So.2d 339, 343(¶ 9) (Miss.Ct.App.2005) (quoting Robison v. Lanford, 841 So.2d 1119, 1122(¶ 9) (Miss.2003)).

ANALYSIS

¶ 9. The polestar consideration in child custody eases is the best interest of the child. Rushing v. Rushing, 724 So.2d 911, 916(¶ 24) (Miss.1998). A court determines which parent will be awarded custody by analyzing the factors set forth in the case of Albright v. Albright, 437 So.2d 1003, 1005 (Miss.1983). Norman v. Norman, 962 So.2d 718, 720(116) (Miss.Ct.App.2007). The Albright factors include:

1) age, health and sex of the child; 2) determination of the parent that 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 [the] 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 11) other factors relevant to the parent-child relationship.

Brekeen v. Brekeen, 880 So.2d 280, 283-84(¶ 5) (Miss.2004) (citations omitted). In the event that a chancellor improperly considers and applies the Albright factors, we are obligated to find him in error. Hollon v. Hollon, 784 So.2d 943, 946(¶ 11) (Miss.2001).

¶ 10. The chancellor conducted an Al-bright analysis and found the following:

1. Age, health and sex of child: neutral
2. Continuity of care prior to the separation: neutral
3. Best parenting skills: neutral
4. Willingness and capacity to provide for child: favors Don. This decision was based on Don’s flexible work schedule and the fact that he would [779]*779continue to reside in the home where Samantha had been reared, which is located near the home of his father, who helps look after Samantha. Julie, on the other hand, moved into her mother’s home in Hattiesburg, where she intended to live for approximately one year until she was able to find a place of her own.
5. Employment of the parents and responsibilities of employment: neutral
6.

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Related

Norman v. Norman
962 So. 2d 718 (Court of Appeals of Mississippi, 2007)
State Ex Rel. Moore v. Molpus
578 So. 2d 624 (Mississippi Supreme Court, 1991)
Robison v. Lanford
841 So. 2d 1119 (Mississippi Supreme Court, 2003)
Albright v. Albright
437 So. 2d 1003 (Mississippi Supreme Court, 1983)
Brekeen v. Brekeen
880 So. 2d 280 (Mississippi Supreme Court, 2004)
Parker v. South
913 So. 2d 339 (Court of Appeals of Mississippi, 2005)
Rushing v. Rushing
724 So. 2d 911 (Mississippi Supreme Court, 1998)
Hollon v. Hollon
784 So. 2d 943 (Mississippi Supreme Court, 2001)

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Bluebook (online)
19 So. 3d 775, 2009 Miss. App. LEXIS 172, 2009 WL 822589, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jones-v-jones-missctapp-2009.