Smullins v. Smullins

77 So. 3d 119, 2011 Miss. App. LEXIS 725, 2011 WL 6215564
CourtCourt of Appeals of Mississippi
DecidedNovember 29, 2011
DocketNo. 2009-CA-00994-COA
StatusPublished
Cited by9 cases

This text of 77 So. 3d 119 (Smullins v. Smullins) 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
Smullins v. Smullins, 77 So. 3d 119, 2011 Miss. App. LEXIS 725, 2011 WL 6215564 (Mich. Ct. App. 2011).

Opinion

GRIFFIS, P.J.,

for the Court:

MODIFIED OPINION ON MOTION FOR REHEARING

¶ 1. The motion for rehearing is granted. The Court’s original opinion is withdrawn, and this opinion is substituted in lieu thereof.

¶ 2. Bradley Wayne Smullins filed for a divorce from his wife Shellie Smullins and requested custody of their son, Devinn Smullins. The Chancery Court of Tishom-ingo County granted the divorce and awarded custody of Devinn to Bradley. Shellie raises two issues on appeal: (1) whether the chancellor erred in his analysis of the Albright factors and by awarding custody of Devinn to Bradley and (2) whether the chancellor erred by denying her motion for a new trial or, alternatively, motion for reconsideration in spite of new DNA evidence proving that Bradley is not Devinn’s biological father. We find no error and affirm.

FACTS AND PROCEDURAL HISTORY

¶ 3. Bradley and Shellie were married on March 26, 2001. At the time of their marriage, Shellie had two daughters from a previous relationship. Eight months later, on November 24, 2001, Shellie gave birth to Devinn.

¶ 4. In March 2008, Shellie left the marital home. Shellie’s two daughters and De-vinn remained with Bradley. On April 8, 2008, Shellie took the children out of school and did not return them to Bradley. The same day, Bradley filed a complaint for divorce based on the ground of adultery, emergency child custody, and other relief.

¶ 5. On April 9, 2008, the chancellor entered an emergency custody order. The chancellor found that it was in the best interests of the children to remain in the primary care and custody of Bradley. The chancellor set a temporary hearing for May 1, 2008.

¶ 6. On April 14, 2008, Shellie filed a motion to set aside the emergency custody order. The same day, the chancellor set the matter for hearing on April 18, 2008; the hearing was later continued.

¶ 7. On April 18, 2008, Shellie filed her answer to the complaint for divorce, child custody, and other relief and her counter-complaint for divorce, child custody, and other relief. Shellie asked for a divorce on the grounds of cruel and inhuman treatment and habitual drunkenness and drug use. As to custody, Shellie asked that Bradley’s request for custody of her daughters be dismissed because he was not their biological father. The chancellor agreed and dismissed Bradley’s request for custody of Shellie’s daughters. Shellie also asked that she be awarded custody of Devinn. This appeal concerns the custody of Devinn.

¶ 8. The trial was held on July 31, 2008, and August 5, 2008. Shellie and Bradley announced that they had agreed to withdraw their fault grounds for divorce and proceed with a divorce based on irreconcil[123]*123able differences. The issues of custody, visitation, and child support were submitted to the chancellor for a decision.

¶ 9. Shellie testified that she left Bradley because of his drinking and because he urinated in the bed. Shellie testified that everyday when Bradley returned home from work, he drank beer and smoked marijuana outside in the shed. Shellie claimed that Bradley’s addictions prevented him from interacting with the family. When Shellie worked the night shift, Jacie Jones, Shellie’s twelve-year-old daughter, baby-sat the children. Shellie testified that when she took the children away from Bradley in April 2008, they stayed with her friend Brian Hill for a few days. Shel-lie denied having an affair with Hill.

¶ 10. At the time of the hearing, Shellie was renting a house from her brother for $400 per month. Her grandparents lived nearby. However, Shellie stated that she did not ask her grandparents for help because of their age. Shellie testified that Jacie baby-sits while she is working.

¶ 11. Bradley testified that Shellie left him for Hill. Bradley learned about Shel-lie’s affair with Hill by viewing Shellie’s phone records. Bradley testified that Shellie had also had an affair with Chris Banks in 2008. Bradley also testified that Shellie had a profile on an Internet-dating website, which he did not approve. Bradley expressed concern about Shellie having the children around other men. Also, because Shellie had filed for bankruptcy in 2008, Bradley claimed that he was more financially stable than Shellie.

¶ 12. Bradley admitted that he drank six to eight beers per day, and he admitted using marijuana on a daily basis. However, Bradley testified that he never drank or smoked in front of the children, and he claimed that he had been sober ever since he had obtained custody of the children. He stated that he had taken four drug tests over the past year, and all tests results were negative. Bradley stated that when Shellie worked the night shift, he was the primary caretaker for the children: feeding them, bathing them, and taking care of their other needs. Lastly, Bradley testified that he had the ability to take care of Devinn and that his parents, who lived next door to him, were willing to help.

¶ 13. Banks, Shellie’s former boyfriend, testified that he and Shellie had an affair in 2003. Banks stated that he and Shellie had sex on back roads and at friends’ houses. Banks testified that Shellie brought her children to two of his baseball games, and they never did anything inappropriate in front of the children.

¶ 14. Elizabeth Smullins, Bradley’s mother, testified that Bradley normally took care of the children because Shellie worked the night shift. She confirmed that Bradley had not had a drink or smoked marijuana since he had obtained temporary custody of the children. Elizabeth stated that Bradley had not attended a rehabilitation program, but he had sought counseling from his pastor. Elizabeth also voiced her willingness to assist Bradley in Devinn’s care.

¶ 15. Chris Murrah, Bradley’s friend, observed Bradley taking care of the children. Murrah never saw Bradley drink or smoke marijuana in front of the children. Murrah also testified that he had given Bradley urine for a drug test once because Bradley had been smoking marijuana.

¶ 16. Debbie Netherly, Shellie’s mother, testified that she would call to check on the children when Shellie worked the night shift, and it sounded like a circus in the home. Netherly stated that Bradley was always outside in the shed when she called the home. Netherly maintained that whenever she visited Shellie and Bradley’s [124]*124home, Bradley always had a cup in his hand, and he smelled of beer.

¶ 17. Jacie testified that Shellie would take them to and from school. Jacie stated that in the afternoons, they would go to Bradley’s parents’ house or stay at home alone, where Jacie would look after her siblings. Jacie testified that Bradley would get home from work between 3:00 p.m. and 5:00 p.m., and that he would go to the shed to drink. Jacie maintained that Bradley would not check on them, and he did not spend a lot of time with them. Jacie stated that she was responsible for making dinner and getting the children ready for bed. Sometimes, Bradley would help Jacie make dinner.

¶ 18. On August 8, 2008, the chancellor announced his findings of fact and conclusions of law. The chancellor’s decision comprised approximately fifty pages of the transcript and provided his detailed analysis of the Albright factors that led to his conclusions. The chancellor determined that the parties should be awarded joint legal custody, and Bradley should be awarded sole physical custody of Devinn.

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Bluebook (online)
77 So. 3d 119, 2011 Miss. App. LEXIS 725, 2011 WL 6215564, Counsel Stack Legal Research, https://law.counselstack.com/opinion/smullins-v-smullins-missctapp-2011.