Rolison v. Rolison

105 So. 3d 1136, 2012 WL 6117850, 2012 Miss. App. LEXIS 799
CourtCourt of Appeals of Mississippi
DecidedDecember 11, 2012
DocketNo. 2011-CA-00192-COA
StatusPublished
Cited by15 cases

This text of 105 So. 3d 1136 (Rolison v. Rolison) 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
Rolison v. Rolison, 105 So. 3d 1136, 2012 WL 6117850, 2012 Miss. App. LEXIS 799 (Mich. Ct. App. 2012).

Opinion

FAIR, J.,

for the Court:

¶ 1. After twenty years of marriage, Gary and Alisa Rolison were divorced on the ground of Alisa’s adultery. Alisa appeals the chancellor’s judgment awarding custody of their four children to Gary, asserting that the chancellor failed to apply the history-of-domestic-violence presumption, failed to consider the children’s preference, disregarded reports of the guardian ad litem (GAL) and the Department of Human Services (DHS), and punished her for adultery. Finding that the chancellor’s decision was within his discretion, discussed appropriately on the record, and supported by the evidence, we affirm.

FACTS

¶ 2. The chancellor held a bifurcated trial and first considered grounds for divorce and custody. In his bench opinion, the chancellor stated that he was not happy with either of the parents. The GAL submitted a written report and recommended that custody of the oldest child, a seventeen-year-old girl with behavioral problems, be awarded to Alisa and that custody of the three other children be awarded to Gary. DHS also conducted an investigation, and its caseworker made the same recommendation. Ultimately, the chancellor rejected the expressed preference of the two oldest children and the recommendations of the GAL and DHS.

¶ 3. On appeal, Alisa asserts four errors: (1) the chancellor did not apply the family-violence statutory presumption; (2) the chancellor improperly rejected the custody recommendations of the GAL and the DHS caseworker; (3) the chancellor failed to explain why he disregarded the children’s preference; and (4) the chancellor punished her for adultery by awarding custody to Gary. Alisa requests that this Court reverse the chancellor’s custody decision and order him to explain his reasoning in compliance with the established requirements for custody decisions.

STANDARD OF REVIEW

¶ 4. This Court “will not disturb a chancellor’s judgment when supported by substantial evidence unless the chancellor abused his discretion, was manifestly wrong, clearly erroneous, or an erroneous legal standard was applied.” Benal v. Benal, 22 So.3d 369, 372 (¶ 4) (Miss.Ct.App.2009) (quoting Chapel v. Chapel, 876 So.2d 290, 292 (¶ 8) (Miss.2004)). If the chancellor’s findings are supported by substantial evidence, then we will affirm. Minter v. Minter, 29 So.3d 840, 850 (¶ 36) (Miss.Ct.App.2009).

DISCUSSION

1. History of Perpetrating Family Violence

¶ 5. Mississippi Code Annotated section 93-5-24 (Rev.2004) provides for determi[1138]*1138nation of child custody in divorce cases. Subsection (9)(a)(i) establishes a rebuttable presumption regarding family violence:

[I]t is detrimental to the child and not in the best interest of the child to be placed in sole custody, joint legal custody or joint physical custody of a parent who has a history of perpetrating family violence. The court may find a history of perpetrating family violence if the court finds, by a preponderance of the evidence, one (1) incident of family violence that has resulted in serious bodily injury to, or a pattern of family violence against, the party making the allegation or a family household member of either party. The court shall make written findings to document how and why the presumption was or was not triggered.

¶ 6. The statute requires that if a chancellor finds a history of perpetrating family violence, the rebuttable presumption is triggered. The chancellor must then consider six factors to determine whether or not the presumption has been rebutted and make “written findings” to document his consideration. Miss.Code Ann. § 93-5-24.

¶ 7. The Mississippi Supreme Court has one published decision addressing this presumption, J.P. v. S.V.B., 987 So.2d 975 (Miss.2008). In J.P., the chancellor removed a child from his parents’ custody because the father had a history of perpetrating domestic violence, and the mother continued to reside with him. Id. at 980 (¶¶ 11-12). The supreme court upheld awarding custody to the maternal grandparents explaining:

The applicable statute [§ 93-5-24] clearly required the chancellor to consider all of the above-listed factors in ascertaining whether the rebuttable presumption has been overcome, and the chancellor “shall make written findings to document how and why the presumption was or was not rebutted.” That being said, a chancellor in these cases must specifically address each factor, failing which reversible error may quite likely result. However, from the record before us in today’s case, we can safely say that while the chancellor did not specifically refer in writing to all the factors enumerated in her judgment, she no doubt considered those factors in making the custody determination. The chancellor made sufficient, specific findings to support her conclusion that the [parents] did not provide evidence to rebut the presumption outlined in Section 93-5-24(9)(a)(iii) and (iv). Since these findings were supported by substantial evidence in the record, we are duty-bound not to reverse on this issue.

J.P., 987 So.2d at 981-82 (¶ 16).1

¶8. Alisa contends the chancellor should have found that Gary had a history of family violence. Then, if the chancellor still intended to award Gary custody, he should have made written findings explaining why the presumption “was or was not rebutted.” Miss.Code Ann. § 93-5-24.

¶ 9. The record contains evidence of both parents’ actions that could be construed as perpetrating family violence. The chancellor found that at times, Gary was aggressive with the children and had a foul mouth. Alisa asserted that Gary once beat her with a “stacking stick” when she let a cow escape and that Gary spanked the children until they were bruised. Gary admitted that he disciplined his children [1139]*1139corporally until the chancellor prohibited him from doing so during the pendency of this proceeding.

¶ 10. There is also evidence of Alisa’s perpetrating family violence. Alisa has bipolar disorder, borderline personalty disorder, and ADHD. She is taking medication and receiving treatment but has shoplifted at numerous stores and blamed her behavior on her medication. Alisa admitted being aggressive with the children. After a fight with one child, Alisa had to have an operation due to a spleen injury.

¶ 11. Both parents admitted to behaving aggressively with the children, but the only evidence of any serious injury was inflicted on Alisa by one of the children. We find that the chancellor did not abuse his discretion in refusing to apply the statutory presumption against Gary or Alisa. See Thompson v. Hutchinson, 84 So.3d 840, 844 (¶¶ 15-19) (Miss.Ct.App.2012).

2. The Albright Factors

¶ 12. Alisa directs this Court’s attention to the chancellor’s discussion of only one Albright2 factor — the expressed preference of a child for his custodial parent. The statute requires the chancellor to explain why the child’s preference was not followed, and Alisa asserts the chancellor failed to do so. See Mississippi Code Annotated § 93-11-65 (Supp.2012).

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Bluebook (online)
105 So. 3d 1136, 2012 WL 6117850, 2012 Miss. App. LEXIS 799, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rolison-v-rolison-missctapp-2012.