Pacheco v. Pacheco

770 So. 2d 1007, 2000 WL 1622853
CourtCourt of Appeals of Mississippi
DecidedOctober 31, 2000
Docket1998-CA-01482-COA
StatusPublished
Cited by22 cases

This text of 770 So. 2d 1007 (Pacheco v. Pacheco) 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
Pacheco v. Pacheco, 770 So. 2d 1007, 2000 WL 1622853 (Mich. Ct. App. 2000).

Opinion

770 So.2d 1007 (2000)

Matilda PACHECO, Appellant,
v.
David J. PACHECO, Appellee.

No. 1998-CA-01482-COA.

Court of Appeals of Mississippi.

October 31, 2000.

*1008 Carmen Gettis Castilla, Jackson, Attorney for Appellant.

Debra Lynn Allen, Jackson, Attorney for Appellee.

BEFORE KING, P.J., BRIDGES, AND MOORE, JJ.

MOORE, J., for the Court:

¶ 1. Appellant Matilda Pacheco (Matilda) filed a complaint for divorce in the Madison County Chancery Court on November 21, 1996, alleging habitual cruel and inhuman treatment, or in the alternatively, irreconcilable differences. The parties consented to a divorce by irreconcilable differences and submitted certain matters to be determined by the chancellor. The chancellor granted the divorce, which included the award of full custody of the parties's daughter to David Pacheco (David). The chancellor did not award any alimony or attorney's fees. Aggrieved by this decision, Matilda presents the following issues on appeal:

I. THE LOWER COURT ERRED IN AWARDING CUSTODY OF THE MINOR CHILD TO THE APPELLEE, DAVID PACHECO.
II. THE CHANCELLOR ERRED IN FAILING TO AWARD ALIMONY TO APPELLANT.
III. THE CHANCELLOR ERRED IN FAILING TO AWARD ATTORNEY'S FEES TO APPELLANT.

Finding no merit in issues one and three, this Court affirms the chancellor's findings on these assignments of error. For lack of proper evaluation of the factors involved under issue two, we remand this issue to the chancellor to conduct a proper assessment of such factors.

STATEMENT OF THE FACTS

¶ 2. Matilda and David were married in 1986 and had one child that was born in 1991. At the time of the trial, the parties had been residents of Madison, Mississippi for at least six years. Matilda filed the complaint on November 21, 1996, on the grounds of habitual cruel and inhuman treatment, or in the alternative, irreconcilable differences. David filed his answer on December 13, 1996, denying the allegations set forth in the complaint. Matilda requested temporary relief, and a hearing was held on such matters, and an order for temporary support was entered into on February 21, 1997. The parties consented to a divorce on the grounds of irreconcilable differences and submitted certain matters to be determined by the chancellor. Included among those issues was the entitlement of either party to alimony (lump sum, periodic or rehabilitative), custody of the minor child, visitation and child support for the minor child, equitable division of the marital assets, including David's pension and retirement plans and I.R.A., and whether either party should be awarded attorney's fees.

¶ 3. David has a B.S. degree in civil engineering and is a registered professional engineer. He is employed with the U.S. Department of Agriculture as a construction engineer and as of the time of the trial, has been an employee there for sixteen years. At that time, David earned $53, 946 annually. Matilda has a high school education and has taken cosmetology courses, but is not licensed. She has been a full time mother and homemaker until approximately one year prior to the divorce. At that time she became employed with Hancock Fabrics in Jackson, Mississippi, earning an average of $727 per month.

*1009 ¶ 4. David's main job responsibility is to provide assistance to project engineers around the state. Beginning in October 1996, he took a temporary assignment in Natchez which required him to be in Natchez during the week. The chancellor, by way of temporary relief, ordered that the child, who was not yet of school age, would alternate spending two weeks with each parent. David finished the assignment in Natchez at the end of 1997, at which time he returned to his home in Madison.

¶ 5. The parties owned a home in Madison. David had an I.R.A. and two retirement/pension funds. Matilda had negligible, if any, retirement benefits accumulated. The parties had previously prepared the division of the personal property, including the home furnishings and automobiles, which the chancellor found to be reasonable.

¶ 6. The final judgment of divorce was entered on June 15, 1998. Full custody of the daughter was awarded to David, with liberal visitation rights granted to Matilda. The chancellor found that Matilda was entitled to a fifty percent share of the marital assets, with a $6,300 deduction which was applied to offset some monies she had withdrawn on a credit card. Upon a motion filed by Matilda, a hearing was conducted concerning amending a portion of the final judgment. The opinion and final judgment were amended to reflect the correct balance of David's retirement accounts which had accumulated during the marriage and totaled $92,689.17. Therefore, Matilda's half interest was determined to be $46,344.58, less the $6,300, coming to an award of $40,044.58. In addition, the judgment awarded the former marital home to David if he was able to pay Matilda for her share of the equity, which the chancellor determined to be $9,804.50, or it was to be sold with the proceeds to be divided equally. The chancellor did not award any alimony or attorney's fees. It is from these findings that Matilda filed this appeal.

LAW AND ANALYSIS

I. DID THE LOWER COURT ERR IN AWARDING CUSTODY OF THE MINOR CHILD TO THE APPELLEE, DAVID PACHECO?

¶ 7. Appellant Matilda asserts that the chancellor erred in failing to award custody of their daughter to her. She contends that the chancellor did not properly weigh the factors in making his determination. Applying the proper standard of review, this Court finds that the chancellor did not commit error in making his decision.

¶ 8. The appropriate standard of review for this Court is well settled: "Our scope of review in domestic relations matters is limited by our familiar substantial evidence/manifest error rule." Stevison v. Woods, 560 So.2d 176, 180 (Miss.1990). The word "manifest" as used in this context is defined as "unmistakable, clear, plain, or indisputable." Magee v. Magee, 661 So.2d 1117, 1122 (Miss.1995) (quoting Black's Law Dictionary 963 (6 th ed.1990)). The chancellor's findings of fact will not be reversed if there is any substantial credible evidence which supports it. Dunaway v. Busbin, 498 So.2d 1218, 1221 (Miss. 1986). Therefore, if there is supporting evidence and "even if this Court disagreed with the lower court on the finding of fact and might have arrived at a different conclusion, we are still bound by the chancellor's findings unless manifestly wrong." Richardson v. Riley, 355 So.2d 667, 668 (Miss.1978). The Mississippi Supreme Court in Albright v. Albright, 437 So.2d 1003 (Miss.1983) set forth the factors that a chancellor is supposed to consider in making a child custody determination. In reviewing the chancellor's application of these factors in the present case, it is evident that there is credible, substantial evidence to support his finding that custody of the child should be awarded to David, and that those findings were not manifestly in error. Therefore, we affirm.

*1010 ¶ 9. The Albright factors have been established as follows:

A. Age of child

B. Health of child

C. Sex of child

D. Continuity of care

E. Best parenting skills

F. Willingness and capacity to provide primary care

G. Parents's employment and responsibilities of such

H.

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Bluebook (online)
770 So. 2d 1007, 2000 WL 1622853, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pacheco-v-pacheco-missctapp-2000.