Masino v. Masino

829 So. 2d 1267, 2002 WL 31458280
CourtCourt of Appeals of Mississippi
DecidedNovember 5, 2002
Docket2001-CA-01424-COA
StatusPublished
Cited by5 cases

This text of 829 So. 2d 1267 (Masino v. Masino) 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
Masino v. Masino, 829 So. 2d 1267, 2002 WL 31458280 (Mich. Ct. App. 2002).

Opinion

829 So.2d 1267 (2002)

Dawn Leslie MASINO, Appellant/Cross Appellee,
v.
Leonard MASINO, Appellee/Cross Appellant.

No. 2001-CA-01424-COA.

Court of Appeals of Mississippi.

November 5, 2002.

*1269 William E. Tisdale, Biloxi, for Appellant.

Damon Scott Gibson, Gulfport, for Appellee.

Before SOUTHWICK, P.J., THOMAS and CHANDLER, JJ.

SOUTHWICK, P.J., for the court.

¶ 1. Leonard and Dawn Masino were granted a divorce based upon irreconcilable differences by the Harrison County Chancery Court. Mr. Masino was granted physical custody of the minor child and also child support. On appeal, Mrs. Masino claims that she should have received the following: custody of the minor child, periodic alimony, child support, the child's tax exemption, and attorney's fees. Mr. Masino cross-appeals on the abatement of the child support. We affirm except for the abatement of child support. That issue is remanded to the chancellor.

FACTS

¶ 2. Leonard and Dawn Masino were married in 1996. One child was born to the marriage, a daughter, Melanie, in the fall of that same year. Throughout the marriage, Mr. Masino worked as a slot machine technician, earning approximately $27,000 per year. Prior to the marriage, Mrs. Masino worked in different positions, including cocktail waitress and retail management. At the time of trial, she was working part-time as a hotel maid, earning approximately $450 per month.

¶ 3. The marriage appears to have been unstable almost from the beginning. Six weeks after Melanie's birth, the girl was taken by her mother to central Florida where some members of Mrs. Masino's *1270 family resided. There they stayed for two weeks before returning to the marital home. Taking the child to Florida became a pattern for Mrs. Masino over the next four years. One stay lasted nearly a year. The cause was disputed. Dawn Masino claims her husband threw her out of the home, while Leonard Masino claims that she simply left after they had argued.

¶ 4. Mr. Masino filed for divorce in January 2000. At the same time, he filed a motion for temporary and emergency relief to enjoin Mrs. Masino from removing the child from the jurisdiction. The relief was granted. The chancellor sought to have the parties arrange a visitation schedule. Approximately two weeks later, Mr. Masino returned to the chancery court with a new motion for temporary relief, requesting the court assign a visitation schedule as Mrs. Masino refused to permit visitation with the child on all but one occasion. After the motions were filed, Mrs. Masino left the home with their child without advising Mr. Masino of their location.

¶ 5. Mr. Masino again filed a motion for emergency relief in order to locate the child, which was granted. Mrs. Masino subsequently filed for temporary relief. At the hearing on the matter, the chancellor entered a temporary order granting physical custody of the child to Mr. Masino four days per week and ordering Mr. Masino to pay child support of $500 per month.

¶ 6. Prior to the trial on the divorce action, the parties settled all property division matters, leaving only the issues of child custody, support, alimony and division of miscellaneous child-rearing expenses for the chancellor's determination. Judgment was issued on July 3, 2001, making legal custody joint but giving physical custody to Mr. Masino. Visitation for Mrs. Masino included the entirety of the summer school holidays except for one week in July. Mrs. Masino was ordered to pay $120 per month in child support. The child's income tax exemption was granted to Mr. Masino. No alimony was awarded. Both parties' request for attorney's fees was denied.

DISCUSSION

1. Custody of the minor daughter to Leonard Masino.

¶ 7. Mrs. Masino's first point is that the chancellor's custody decision was not in the child's best interests. Before analyzing that specific complaint, we look at a procedural question.

¶ 8. The chancellor established joint custody for the child. This Court has on several occasions concluded that because of language in the irreconcilable differences divorce statute, joint custody could not be awarded without the consent of the parties. See Dearman v. Dearman, 811 So.2d 308, 312-15 (Miss.Ct.App.2001) (Payne, J., citing Miss.Code Ann. § 93-5-24(2) (Supp.2000), and finding that there must be joint consent since the statute states that "joint custody may be awarded... in the discretion of the court, upon application of both parents"); Wolfe v. Wolfe, 766 So.2d 123, 126-127 (Miss.Ct. App.2000) (Thomas, J., same.) The Supreme Court has recently, without addressing this statute and in a case in which divorce was contested, found that "if the parents cannot agree on who should have primary custody of the children, it is probably the better course for the chancellor to make that decision for them reserving joint custody for parents who are willing to work together to make joint custody feasible." Waller v. Waller, 754 So.2d 1181, 1184 (Miss.2000).

¶ 9. Despite these questions, we find that joint custody was permissible here because the parties signed and filed a *1271 document indicating what they had not agreed upon and what therefore needed to be decided by the chancellor. Among the issues was "Child custody—sole physical custody or joint legal and physical custody." What our precedents have discussed is that section 93-5-24(2) requires that there be "application of both parents" before joint custody is permitted in a divorce granted on the basis of irreconcilable differences. We find this to be a joint application since it indicates an offer to the chancellor to resolve the parties' differences by using that option.

¶ 10. Mrs. Masino's central argument that the chancellor erred as to custody since she claims that absent other compelling reasons, a child of tender years should be placed with the mother.

¶ 11. We begin by noting that whatever the decision, the chancellor is in the best position to determine the credibility of the witnesses. Madden v. Rhodes, 626 So.2d 608, 616 (Miss.1993). We will not disturb a chancellor's findings when supported by substantial evidence. Id.

¶ 12. In making decisions of child custody, the best interest of the child is to dominate the analysis. Sellers v. Sellers, 638 So.2d 481, 485 (Miss.1994). There are factors that must be taken into account when making such decisions. Albright v. Albright, 437 So.2d 1003, 1005 (Miss.1983). The record reveals that in making findings of fact for each of the Albright factors, the chancellor meticulously explained the reasoning upon which the findings were based. The chancellor found that eight of the Albright factors favored placing custody with Mr. Masino, primarily due to the stability of Mr. Masino's home and his employment history, his extensive involvement in the child's pre-school activities, and the support of his extended family.

¶ 13. At the same time, the chancellor found that Mrs. Masino's deliberate and ongoing interference in the father-daughter relationship was extreme and not in the child's best interest. Mrs. Masino was highly uncooperative with visitation by Mr. Masino and frequently made extremely derogatory comments about him in their daughter's presence. The chancellor also found that the father and child enjoyed a very close relationship which would be damaged by Mrs. Masino's apparent plan to move to Florida with the child if granted custody.

¶ 14.

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829 So. 2d 1267, 2002 WL 31458280, Counsel Stack Legal Research, https://law.counselstack.com/opinion/masino-v-masino-missctapp-2002.