Neville v. Neville

734 So. 2d 352, 1999 WL 87066
CourtCourt of Appeals of Mississippi
DecidedFebruary 23, 1999
Docket97-CA-00860-COA
StatusPublished
Cited by17 cases

This text of 734 So. 2d 352 (Neville v. Neville) 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
Neville v. Neville, 734 So. 2d 352, 1999 WL 87066 (Mich. Ct. App. 1999).

Opinion

734 So.2d 352 (1999)

George Waddell NEVILLE, Appellant,
v.
Tina Foley NEVILLE, Appellee.

No. 97-CA-00860-COA.

Court of Appeals of Mississippi.

February 23, 1999.

*353 Sam Brand, Jackson, Attorney for Appellant.

Ross Barnett, Jackson, Attorney for Appellee.

BEFORE McMILLIN, P.J., KING, AND SOUTHWICK, JJ.

McMILLIN, P.J., for the Court:

¶ 1. George Neville, an attorney, was granted a divorce from his wife, Tina Neville, a medical doctor, in the Chancery Court of Hinds County on the ground of uncondoned adultery. After finding the proof sufficient to grant the divorce, the chancellor turned to the matters of determining child custody and adjudicating the various financial considerations that attend the dissolution of a marriage. He granted primary physical custody of the parties' child to Dr. Neville and Mr. Neville has appealed that decision. Mr. Neville also claims that he was ill-treated by the chancellor in various ways relating to matters of finance and the division of personalty. He also raises two issues regarding perceived errors in evidentiary rulings by the chancellor.

¶ 2. Dr. Neville has filed a cross-appeal, claiming that the chancellor was unduly generous to Mr. Neville in awarding him $1,400 per month for a fixed term of 120 months in an award the chancellor termed rehabilitative alimony. Dr. Neville also suggests that the chancellor abused his discretion in setting child support to be paid by Mr. Neville below the applicable statutory guidelines without offering adequate justification for doing so.

¶ 3. We conclude, based upon our review of the record and the applicable law, that the chancellor acted within the range of discretion given in such matters in all aspects of his ruling, and we, therefore, affirm *354 the judgment, subject only to a change we make on our own motion in the terminology the chancellor used to describe Mr. Neville's alimony award.

I.

Facts

¶ 4. Mr. Neville and Dr. Neville were married in 1988 at a time when he was working as an attorney for the Office of the Attorney General and Dr. Neville was a medical school student. He was 31 years old and she was 23 years of age at the time of the marriage. A female child was born to the couple in December 1991. In 1995, the couple anticipated moving from Jackson to Long Beach to permit Dr. Neville to begin practicing in her area of specialty. The record indicates that, during this time, Dr. Neville had become romantically involved with a physician from the coast area that ultimately led to an adulterous affair. It was the evidence of this affair that formed the basis of the chancellor's decision to grant Mr. Neville a divorce.

¶ 5. As a result of the marital difficulties brought on by Dr. Neville's adulterous conduct, Mr. Neville did not relocate to Long Beach, though the parties had already purchased a home in anticipation of the move. At the time of the divorce trial, Mr. Neville continued to actively practice law with an income of approximately $55,000 per year. Dr. Neville was earning in the range of $165,000 per year at the time of the separation. The evidence suggests that both parties are healthy and reasonably capable of continuing their respective gainful employment for the foreseeable future.

II.

Child Custody

¶ 6. As his first issue, Mr. Neville urges this Court to conclude that the chancellor abused his discretion in awarding primary physical custody of the parties' daughter to Dr. Neville.

¶ 7. In a contested child custody case, the chancellor is often confronted with a difficult decision. The Mississippi Supreme Court has listed a number of factors that ought properly to enter into the decision process. These criteria have, through long use, come to be familiarly known as the Albright factors. Albright v. Albright, 437 So.2d 1003, 1005 (Miss.1983). The critical issue underlying all the Albright factors is the welfare of individuals that, in the great bulk of cases, are not parties to the litigation—namely, the children of the litigants. The supreme court has stressed this point by saying that the child's best interest is the "polestar" consideration in any custody determination. M.C.M.J. v. C.E.J., 715 So.2d 774(¶ 11) (Miss.1998). Thus, though the dispute is between the litigants, the determination of custody does not particularly concern itself with the parents' competing claims that to deprive one or the other of custody would be unduly harsh to that parent. It is for that reason, for example, that the party causing the dissolution of the marriage may, nevertheless, prevail in the resulting custody dispute, the courts reasoning that an award of custody is not a proper means to punish an offending spouse. McKee v. Flynt, 630 So.2d 44, 49 (Miss.1993).

¶ 8. In this case, the chancellor was presented with an abundance of testimony as to which parent could best meet the child's needs in the days following the divorce. No less than twenty-nine witnesses appeared on that question. The chancellor, in his opinion, concluded that most of these witnesses on both sides were not particularly helpful because of their evident bias for one party or the other and because of his feeling that each of these witnesses had only limited opportunity to observe the interaction between the child and the parents that would give the witness a reasonable basis to provide helpful information to the court.

¶ 9. The chancellor, in detailed findings of fact, laid out and supported his opinion that both parents were concerned and *355 competent caregivers for the child. He concluded, based on his measure of the credibility of certain witnesses best able to objectively express an informed view on the question, that Mr. Neville was not, as he asserted before the chancellor and now urges on appeal, the primary caregiver for the child during her early years. Rather the chancellor stated that the child "was lucky enough to have both a mother and a father who more or less equally saw to her needs...." Our review of the record leaves us unconvinced that the chancellor was manifestly in error in arriving at that conclusion.

¶ 10. The chancellor, in determining that primary physical custody should be given to Dr. Neville, placed particular emphasis on his conclusion that Dr. Neville and the child would enjoy a strong extended family structure in the Long Beach area because of the presence there of Dr. Neville's mother and sister and their families, and that this would lend a measure of stability to the child's life following the trauma of her parents' divorce. We consider this a legitimate finding to give weight to the chancellor's determination of custody. The Albright decision specifically mentions "stability of home environment" as a factor to be considered. Albright, 437 So.2d at 1005. As to the other Albright factors, the chancellor found that the remaining criteria "favor[ed] neither George nor Tina," therefore compelling a finding that "it is in the best interest of [the child] that she be entrusted to the primary care and custody of [Dr. Neville]."

¶ 11. Mr. Neville attacks the chancellor's decision by pointing to specific matters in the record that were derogatory to Dr. Neville. He then urges this Court to conclude that the chancellor either ignored those factors or failed to give them their proper weight in reaching his decision on child custody. He suggests, for example, that Dr. Neville's adultery evidences a moral unfitness on her part to be the custodial parent.

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Cite This Page — Counsel Stack

Bluebook (online)
734 So. 2d 352, 1999 WL 87066, Counsel Stack Legal Research, https://law.counselstack.com/opinion/neville-v-neville-missctapp-1999.