Moak v. Moak

631 So. 2d 196, 1994 WL 22281
CourtMississippi Supreme Court
DecidedJanuary 27, 1994
Docket91-CA-465
StatusPublished
Cited by37 cases

This text of 631 So. 2d 196 (Moak v. Moak) is published on Counsel Stack Legal Research, covering Mississippi Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Moak v. Moak, 631 So. 2d 196, 1994 WL 22281 (Mich. 1994).

Opinion

631 So.2d 196 (1994)

Terry MOAK
v.
Dixie Lou Williams MOAK.

No. 91-CA-465.

Supreme Court of Mississippi.

January 27, 1994.

Paula N. Stennett, Wallace & Stennett, Ridgeland, for appellant.

Ralph L. Peeples, Hobbs Hobbs & Peeples, Brookhaven, William Larry Latham, Hermine M. Welch, Jackson, for appellee.

En Banc.

ON PETITION FOR REHEARING

PITTMAN, Justice, for the Court:

The original opinion is hereby withdrawn and the following opinion is substituted therefor.

This appeal arises from an April 5, 1991, order of the Lincoln County Chancery Court awarding physical custody of two minor children to their mother, Dixie Lou Williams Moak. Finding no reversible error, this Court affirms.

I.

Terry and Dixie Moak were married on September 5, 1970. During their marriage, they adopted two children, William Issac *197 (Will), 13 years old, and Kristina Ann (Kristie), 11 years old.

Terry, a crane operator for the Georgia Pacific Paper Mill, earned an annual gross income of $40,000. His work schedule was based on twelve hour shifts. He had to work the night shift eight nights a month and the day shift seven days a month. On the days that he worked the day shift, he did not get off work until 7:30 p.m.

Dixie was an employee of Packard Electric Company. Her monthly net income totaled $1,807.57. Dixie's work schedule consisted of a five day work week from 8:00 a.m. until 4:30 p.m. After work, Dixie picked the children up at school where they were involved in an after-school program until 5:00 p.m.

On July 4, 1990, Terry and Dixie separated. Dixie left the marital home and took the children with her. Terry filed a complaint for divorce on the ground of adultery on October 5, 1990. Dixie counterclaimed for divorce alleging adultery and habitual cruel and inhuman treatment.

Both Terry and Dixie admitted that some of their marital discontent stemmed from sexual problems caused by a variety of physical conditions. Dixie admitted that beginning in 1985, she had an affair with a co-worker that lasted two years. Even though Terry knew about the affair, they attempted to put their marriage back together when the affair was over.

In 1989, Dixie became romantically involved with Warren Lester, another co-worker. Dixie and Warren refused to answer any questions about the sexual nature of their relationship, although admitted to having feelings of "love and affection" for each other. Wanda Lester, Warren's former wife, was granted a divorce on the ground of habitual cruel and inhuman treatment in November of 1990. She testified that Warren's relationship with Dixie was one of the reasons she filed for divorce.

Dixie rented a trailer when she and the children moved out of the marital home. After Warren and Wanda separated, Warren moved into a trailer next to Dixie's. Warren frequently played ball with his son and Will Moak, ate dinner with Dixie and her children, and helped the Moak children with their homework.

On April 5, 1991, the chancellor granted Terry's petition for divorce on the ground of adultery. Terry and Dixie were found to be fit and proper parents, and the chancellor awarded them joint legal custody of their two minor children. Dixie, however, was awarded physical custody of the children, as well as the exclusive use, occupancy, and possession of the marital home.

II.

Terry contends that the chancellor erred in granting Dixie custody of the children, as well as the exclusive use, occupancy, and possession of the marital home. This Court, however, is "bound by [the chancellor's] findings unless it can be said with a reasonable certainty that those findings were manifestly wrong and against the overwhelming weight of the evidence." Carr v. Carr, 480 So.2d 1120, 1123-24 (Miss. 1985). As for the exclusive use and possession of the marital home, "[it] is certainly an order within the Chancery Court's authority for the `maintenance of the children of the marriage.'" Regan v. Regan, 507 So.2d 54, 58 (Miss. 1987) (quoting Miss. Code Ann. § 93-5-23 (Supp. 1986)).

The chancellor found both Terry and Dixie to be fit parents and vested legal custody of the two children in both. Although he expressed reservations about awarding physical custody to Dixie, he attempted to focus on the best interests of the children rather than on marital fault. The chancellor stated:

The pole star [sic] that the Court's got to look to in determining which of the parents of a broken marriage is going to get custody of the children is one question, what is the best interest of the children under the totality of the circumstances as shown by the evidence. Custody of children is not to be awarded to one parent as a reward for any particular good deed, nor is it to be denied to a parent solely as punishment for any misconduct on the part of a party.

During the hearing, the chancellor had the opportunity to hear considerable testimony upon which to base his decision. In Albright *198 v. Albright, 437 So.2d 1003 (Miss. 1983), this Court set forth the factors to be considered in awarding custody:

We reaffirm the rule that the polestar consideration in child custody cases is the best interest and welfare of the child. The age of the child is subordinated to that rule and is but one factor to be considered. Age should carry no greater weight than other factors to be considered, such as: health, and sex of the child; a determination of the parent that has had the continuity of care prior to the separation; which has the best parenting skills and which has the willingness and capacity to provide primary child care; the employment of the parent and responsibilities of that employment; physical and mental health and age of the parents; emotional ties of parent and child; moral fitness of parents; the home, school and community record of the child; the preference of the child at the age sufficient to express a preference by law; stability of home environment and employment of each parent, and other factors relevant to the parent-child relationship.

Id. at 1005.

Despite their marital problems, both parents have worked hard to provide their children with a good home, excellent educational opportunities, and an active involvement in the church and in the community. It appears that both Terry and Dixie have played active parenting roles, focusing their lives largely on family activities. Even on a day to day basis, Terry has fixed the children's breakfast, brushed Kristie's hair and other routine domestic activities. However, the evidence in the record shows that Dixie has been the primary caregiver, especially with regard to the children's homework and social and church activities.

As the chancellor noted in directing the Moaks to come up with a schedule to provide Terry with liberal visitation rights, his work schedule is "not an odd schedule for him, but it is not the conventional work schedule that we normally deal with ..." His work schedule is based on twelve hour shifts, which enables him to have approximately fifteen days off each month. However, because of Georgia Pacific's rotating shift policy, he must work on the night shift at least eight nights a month. On the seven days each month where he works on the day shift, he works until 7:30 p.m. The record indicates that the only option Terry had considered for child care while he was at work was his elderly mother.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Bradley C. Poole v. Nina Renee Poole
Court of Appeals of Mississippi, 2023
Collins v. Collins
98 So. 3d 506 (Court of Appeals of Mississippi, 2012)
Morris v. Morris
5 So. 3d 476 (Court of Appeals of Mississippi, 2008)
Thurman v. Johnson
998 So. 2d 1026 (Court of Appeals of Mississippi, 2008)
Webb v. Webb
974 So. 2d 274 (Court of Appeals of Mississippi, 2008)
DeVito v. DeVito
967 So. 2d 74 (Court of Appeals of Mississippi, 2007)
Crider v. Crider
904 So. 2d 142 (Mississippi Supreme Court, 2005)
Lainie Bell Crider v. John Paul Crider, Jr.
Mississippi Supreme Court, 2003
Sb v. Lw
793 So. 2d 656 (Court of Appeals of Mississippi, 2001)
Daniel v. Daniel
770 So. 2d 562 (Court of Appeals of Mississippi, 2000)
Mitchell v. Mitchell
820 So. 2d 714 (Court of Appeals of Mississippi, 2000)
Wolfe v. Wolfe
766 So. 2d 123 (Court of Appeals of Mississippi, 2000)
Battle v. Alpha Chemical and Paper Co.
770 So. 2d 626 (Court of Civil Appeals of Alabama, 2000)
Lackey v. Fuller
755 So. 2d 1083 (Mississippi Supreme Court, 2000)
Belding v. Belding
736 So. 2d 425 (Court of Appeals of Mississippi, 1999)
Weigand v. Houghton
730 So. 2d 581 (Mississippi Supreme Court, 1999)
Hankins v. Hankins
729 So. 2d 1283 (Mississippi Supreme Court, 1999)
Logan v. Logan
730 So. 2d 1124 (Mississippi Supreme Court, 1998)
Rushing v. Rushing
724 So. 2d 911 (Mississippi Supreme Court, 1998)

Cite This Page — Counsel Stack

Bluebook (online)
631 So. 2d 196, 1994 WL 22281, Counsel Stack Legal Research, https://law.counselstack.com/opinion/moak-v-moak-miss-1994.