Mayfield v. Mayfield

956 So. 2d 337, 2007 WL 1248214
CourtCourt of Appeals of Mississippi
DecidedMay 1, 2007
Docket2005-CA-01576-COA
StatusPublished
Cited by6 cases

This text of 956 So. 2d 337 (Mayfield v. Mayfield) 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
Mayfield v. Mayfield, 956 So. 2d 337, 2007 WL 1248214 (Mich. Ct. App. 2007).

Opinion

956 So.2d 337 (2007)

Christina MAYFIELD, Appellant
v.
Joel MAYFIELD, Appellee.

No. 2005-CA-01576-COA.

Court of Appeals of Mississippi.

May 1, 2007.

*340 Walter Wesley Teel, attorney for appellant.

Wendy C. Hollingsworth, Ocean Springs, attorney for appellee.

Before MYERS, P.J., IRVING and BARNES, JJ.

IRVING, J., for the Court.

¶ 1. Joel and Christina Mayfield agreed to an irreconcilable differences divorce and submitted two issues to the Harrison County Chancery Court for decision: custody of their two minor children and equitable division of the marital home. The court awarded custody of the children and the marital home to Joel. Aggrieved, Christina appeals and asserts the following issues, which we quote verbatim:

1. The chancellor erred in granting custody to the appellee, and as a matter of law committed manifest error under Albright v. Albright, 437 So.2d 1003, 1005 (Miss.1983) by failing to properly apply the Albright factors, singling out certain factors and placing undue emphasis on other factors instead of considering them as a whole and thereby not properly analyzing and making the appropriate findings as to each factor.
2. The court erred in allowing the use of the psychological report of Don Hughes to be used in evidence to cross-examine him.
3. The court improperly allowed into evidence certain statements under the "excited utterance" exception to the hearsay rule.

¶ 2. Finding no reversible error, we affirm.

FACTS

¶ 3. Joel and Christina were married on December 9, 2000, in Harrison County, Mississippi. Two children were born to the parties prior to the marriage: Abbey, born November 3, 1998, and Joel, Jr., born August 11, 2000. The parties separated on or about November 29, 2001.

¶ 4. On March 1, 2002, Joel filed a complaint for divorce. Christina responded on March 7, 2002, by filing an answer and counterclaim for divorce. Both parties filed motions for temporary relief, and on June 27, 2003, the court held a hearing to determine which party would be awarded temporary custody. The court ordered the parties to share custody of the children, alternating weeks, until a full hearing could be held to determine permanent custody. The court also issued an immediate temporary injunction against Don Hughes, Christina's paramour,[1] enjoining him from having any contact with the children. *341 The court also prohibited Anthony, Joel's brother, from having unsupervised contact with the children and ordered that he not be present in the home when the children came to Joel's home for overnight visits.

¶ 5. On September 3, 2003, a three-day hearing commenced. At the close of the hearing, the chancellor appointed a guardian ad litem and ordered that a home study be conducted by the chancery court clinician. On October 10, 2003, the court entered a second temporary order granting primary custody to Christina and visitation privileges to Joel. The court ordered that Anthony have no contact with the children and specifically ordered that Hughes be "totally isolated from the children." Nevertheless, Christina continued to allow Hughes to have contact with the children.

¶ 6. A hearing was held on November 17, 2003, where the chancellor heard from the guardian ad litem who had filed an interim report in which she made a recommendation to the court that it consider making a temporary change in custody and visitation. On November 26, 2003, the chancery court issued a third and final temporary order which modified its prior custody award by granting temporary physical custody to Joel. On July 8, 2005, the chancellor entered a final judgment of divorce, in which he awarded primary physical custody to Joel, and visitation privileges to Christina. The chancellor also ordered Christina to keep the children away from Hughes until she and Hughes were married, and until Hughes presented to both the court and Joel certification documenting his successful completion of an anger management course. It is from this judgment that Christina appeals.

¶ 7. Additional facts, as necessary, will be related during our analysis and discussion of the issues.

ANALYSIS AND DISCUSSION OF THE ISSUES

1. Custody

¶ 8. Christina contends that the chancellor failed to properly apply the Albright factors, and therefore erred in awarding custody to Joel. "[An appellate court] will not disturb a chancellor's judgment . . . unless the chancellor abused his discretion, was manifestly wrong, clearly erroneous, or an erroneous legal standard was applied." Chapel v. Chapel, 876 So.2d 290, 292-93(¶ 8) (Miss.2004) (citing Townsend v. Townsend, 859 So.2d 370, 371-72(¶ 7) (Miss.2003)). "On appeal [an appellate court] will not reverse a chancery court's factual findings, be they of ultimate fact or of evidentiary fact, where there is substantial evidence in the record supporting these findings of fact." Smith v. Jones, 654 So.2d 480, 485 (Miss.1995) (quoting Cooper v. Crabb, 587 So.2d 236, 239 (Miss.1991)).

¶ 9. In Albright, the Mississippi Supreme Court enumerated twelve factors that chancellors must consider in making custody determinations: age, health and sex of the child; which parent had continuity of care prior to the separation; which parent has better parenting skills; which parent has the willingness and capacity to provide care for the child; employment status of the parents, including responsibilities associated with employment; age and physical and mental health of each parent; the emotional bond between parent and child; parents' moral fitness; "the home, school and community record of the child;" the child's preference, provided that the child is old enough to express such preference; which parent has a more stable home and work environment; "and other factors relevant to the parent-child relationship." The chancellor is mandated to *342 make a decision in light of all of these factors, while keeping in mind that "the polestar consideration in child custody cases is the best interest and welfare of the child." Id. at 1005. The chancellor thoroughly considered all of the Albright factors. Therefore, as we will discuss below, we find no error in the chancellor's finding that it is in the best interest of the children that their primary custody remain with Joel.

Age, Health, and Sex of the Children

¶ 10. The chancellor found that this factor favored neither party. Christina argues that this factor should have weighed in her favor, and she points out that Hughes has been accused of abuse, but he has "never been arrested nor charged with any abuse toward either one of these children — or any child for that matter." It is Christina's contention that there is no proof that either she or Hughes has harmed the children in any way, because the children have never had to see a psychologist or undergo any type of psychological testing.

¶ 11. Christina also argues that this factor should have weighed in her favor because the children are young. Although Christina acknowledges that the tender years doctrine has been weakened by Albright, she still argues that she should have been awarded custody of the children. In Albright, 437 So.2d at 1005, the court stated: "Age should carry no greater weight than other factors to be considered." In Lee v. Lee, 798 So.2d 1284, 1289(¶ 17) (Miss.2001), the Mississippi Supreme Court stated: "the age and sex of a child are merely factors to be considered under

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Bluebook (online)
956 So. 2d 337, 2007 WL 1248214, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mayfield-v-mayfield-missctapp-2007.