Thurman v. Johnson

998 So. 2d 1026, 2008 WL 4041851
CourtCourt of Appeals of Mississippi
DecidedSeptember 2, 2008
Docket2007-CA-00713-COA
StatusPublished
Cited by6 cases

This text of 998 So. 2d 1026 (Thurman v. Johnson) 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
Thurman v. Johnson, 998 So. 2d 1026, 2008 WL 4041851 (Mich. Ct. App. 2008).

Opinion

998 So.2d 1026 (2008)

Deborah Fierro THURMAN (Formerly Johnson), Appellant,
v.
Glen P. JOHNSON, Appellee.

No. 2007-CA-00713-COA.

Court of Appeals of Mississippi.

September 2, 2008.
Rehearing Denied January 13, 2009.

*1027 Kelly Michael Rayburn, Gulfport, attorney for appellant.

William E. Tisdale, attorney for appellee.

Before LEE, P.J., CHANDLER and GRIFFIS, JJ.

GRIFFIS, J., for the Court.

¶ 1. Deborah Fierro Thurman, formerly Deborah Johnson, and Glen P. Johnson were divorced by judgment of the Harrison County Chancery Court. Deborah now appeals the portion of that judgment awarding Glen primary physical custody of the couple's minor child, Tyler Johnson. Finding no error, we affirm the chancellor's award of custody to the father.

FACTS

¶ 2. Deborah and Glen were married on April 27, 1997, in Alaska. At that time, Deborah had custody of her two children from a previous marriage. The family moved to Biloxi, Mississippi in 1999, and the only child of their marriage, Tyler, was born later that year. Glen was a staff sergeant in the United States Air Force, and Deborah was a dental assistant.

¶ 3. Both parties testified that they had recurring disputes throughout their marriage. These disputes consisted of screaming matches and occasionally involved physical abuse. In January 2003, both Glen and Deborah were arrested on charges of domestic violence. The charges were non-adjudicated upon the completion of anger-management classes.

¶ 4. Glen and Deborah decided to separate in March 2004, just prior to Glen's deployment to Iraq. Before he left on deployment, Glen moved his belongings from the marital home to a storage unit. The parties agreed that Tyler would live with Glen's parents in Montana during Glen's period of deployment.

¶ 5. Before the couple separated, Deborah began a relationship with Mike Thurman. At trial, Deborah admitted this was an adulterous relationship. Deborah continued to see Thurman throughout the course of the chancery court proceedings, and the two were married after her divorce from Glen was finalized.

¶ 6. At the time of the trial, Glen was serving a ten-month sentence of incarceration at Keesler Air Force Base after he pled guilty to the theft of a plasma television from the base. As a result of the guilty plea, Glen lost his job, his wages, *1028 and his retirement funds from the Air Force. Glen planned to move back to Montana, where he had employment secured, should he be granted custody of Tyler.

¶ 7. Upon his return from Iraq, Glen initially filed for a divorce based on irreconcilable differences. He later amended his complaint and sought the divorce based on Deborah's adultery. Deborah filed an answer and a counterclaim for divorce on the ground of habitual cruel and inhuman treatment. Both parties sought custody of Tyler.

¶ 8. After the trial, the chancellor granted Glen a divorce on the ground of adultery and awarded custody of Tyler to Glen. Deborah filed a motion for a new trial or, in the alternative, for reconsideration, which was denied by the chancellor.

¶ 9. Deborah now appeals the chancellor's decision to award custody to Glen. She claims that the chancellor improperly applied the Albright factors and placed overwhelming emphasis on her adulterous relationship with Thurman.

STANDARD OF REVIEW

¶ 10. Matters involving child custody are within the sound discretion of the chancellor. Sturgis v. Sturgis, 792 So.2d 1020, 1023(¶ 12) (Miss.Ct.App.2001). "A chancellor's findings of fact will not be disturbed unless manifestly wrong or clearly erroneous." Sanderson v. Sanderson, 824 So.2d 623, 625(¶ 8) (Miss.2002) (citing Consol. Pipe & Supply Co. v. Colter, 735 So.2d 958, 961(¶ 13) (Miss.1999)). "This Court will not disturb the findings of a chancellor when supported by substantial credible evidence unless the chancellor abused his or her discretion, was manifestly wrong, clearly erroneous, or an erroneous legal standard was applied." Id. at 625-26(¶ 8) (quoting Kilpatrick v. Kilpatrick, 732 So.2d 876, 880(¶ 13) (Miss.1999)). Legal questions are reviewed de novo. Russell v. Performance Toyota, Inc., 826 So.2d 719, 721(¶ 5) (Miss.2002).

ANALYSIS

Whether the chancellor erred in his analysis of the Albright factors by placing overwhelming emphasis on Deborah's adultery.

¶ 11. Deborah claims that the chancellor improperly emphasized her adulterous relationship in determining that Glen should be awarded custody of the couple's child. Specifically, Deborah claims that the chancellor relied too heavily on the moral fitness factor in his Albright analysis and improperly sanctioned her for having an affair by denying her the custody of her son. She argues that she should be awarded custody of the child because the chancellor weighed more factors in favor of her than in favor of Glen.

¶ 12. The supreme court set forth the following factors to be considered by the chancellor in custody matters: age, health, and sex of the child; continuity of care prior to the separation; parenting skills and willingness and capacity to provide primary child care; 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 the 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; and stability of the home and employment of each parent. Albright v. Albright, 437 So.2d 1003, 1005 (Miss.1983). The chancellor also shall consider any other factors relevant to the relationship between the parent and the child. Id.

¶ 13. Here, the chancellor found that Glen had met his burden of proof *1029 necessary to obtain the divorce on the ground of adultery. Conversely, Deborah failed to prove that she was entitled to a divorce on the ground of habitual cruel and inhuman treatment. In the chancellor's judgment of divorce, he thoroughly examined and made specific findings as to each Albright factor. Deborah was only slightly favored as to two factors: (1) employment of the parent and responsibilities of that employment and (2) physical and mental health and age of the parents. The moral fitness factor favored Glen. The chancellor found that Tyler was not old enough to state a preference, and the chancellor did not specifically state which parent was favored under the factor regarding the stability of the home and employment of each parent. The remaining factors were held to be neutral, favoring neither Glen nor Deborah.

¶ 14. A temporary agreed order entered in this case specifically stated that neither party "shall have overnight guests of the opposite sex not related by blood or marriage when the minor child is present." However, Deborah testified at trial that Thurman regularly slept at her house while Tyler was in her custody. She further testified that she had maintained her sexual relationship with Thurman throughout the trial despite the chancellor's order. Thus, the chancellor found the following under his analysis of the moral fitness Albright factor:

Both Glen and Deborah have moral issues and neither is in a position to be critical of the other. Glen is a convicted criminal[,] and Deborah is an admitted adulteress. Glen's legal issues arise from the theft of a television set from Keesler Air Force Base which was placed in the marital home.

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Bluebook (online)
998 So. 2d 1026, 2008 WL 4041851, Counsel Stack Legal Research, https://law.counselstack.com/opinion/thurman-v-johnson-missctapp-2008.