Turner v. Turner

824 So. 2d 652, 2002 WL 1902906
CourtCourt of Appeals of Mississippi
DecidedAugust 20, 2002
Docket2001-CA-00952-COA
StatusPublished
Cited by6 cases

This text of 824 So. 2d 652 (Turner v. Turner) 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
Turner v. Turner, 824 So. 2d 652, 2002 WL 1902906 (Mich. Ct. App. 2002).

Opinion

824 So.2d 652 (2002)

Sharon Denise TURNER, Appellant,
v.
Mark TURNER, Appellee.

No. 2001-CA-00952-COA.

Court of Appeals of Mississippi.

August 20, 2002.

*654 Gary L. Roberts, Pascagoula, for Appellant.

Calvin D. Taylor, Pascagoula, for Appellee.

Before SOUTHWICK, P.J., LEE, AND MYERS, JJ.

SOUTHWICK, P.J., for the court.

¶ 1. Sharon Denise Turner and Mark Turner were granted an irreconcilable differences divorce. Mr. Turner was awarded physical custody of the couple's five-year old son. Mrs. Turner appeals the judgment of the chancery court, arguing that the chancellor's analysis on the custody issue was erroneous. We disagree and affirm.

STATEMENT OF FACTS

¶ 2. Mark and Sharon Turner were married in 1989. The couple had one child, Alex, who was born in 1995. The couple separated when Alex was four years old. Mrs. Turner initially filed for a divorce; ultimately the parties agreed on a divorce based on irreconcilable differences.

¶ 3. Both spouses testified at the evidentiary hearing that was held. That testimony which is relevant to this appeal will later be summarized as needed. On February 1, 2001, the chancellor entered his written findings of fact and conclusions of law. The only issue raised on appeal by Mrs. Turner is that awarding custody of Alex to his father was error.

DISCUSSION

¶ 4. Mrs. Turner argues that the chancellor's analysis on the custody issue was erroneous. The Supreme Court has required that chancellors place on the record their findings as to each of ten factors first identified in Albright v. Albright, 437 So.2d 1003, 1005 (Miss.1983). These factors begin as suggested considerations but are now the sine qua non of all custody decisions.

(1) age, health and sex of the child; (2) a determination of the parent that has had the continuity of care prior to the separation; (3) which has the best parenting skills and which has the willingness and capacity to provide primary child care; (4) the employment of the parent and responsibilities of that employment; (5) physical and mental health and age of the parents; (6) emotional ties of parent and child; (7) moral fitness of the parents; (8) the home, school and community record of the child; (9) the preference of the child at the age sufficient to express a preference by law; (10) stability of home environment and employment of each parent and other factors relevant to the parent-child relationship.

¶ 5. Our review of the chancellor's decision is limited. Morris v. Morris, 783 So.2d 681, 692 (Miss.2001). We will only reverse the chancellor's decision where it is manifestly wrong, clearly erroneous, or arrived at by application of an erroneous legal standard. Morris, 783 So.2d at 692.

¶ 6. We will not review each of the considerations that were necessary for the chancellor's review, but only those about which Mrs. Turner alleges error.

1. Continuity of Care/Best Parenting Skills

¶ 7. The chancellor in his findings of fact and conclusions of law grouped two of the Albright factors under "primary caretaker prior to separation." The chancellor's discussion makes it apparent that *655 he was considering the second and third issue in the Albright list of continuity of care and parenting skills. The chancellor found that this combined factor weighed in favor of Mr. Turner.

¶ 8. Mrs. Turner alleges that the chancellor did not address the parenting skill factor at all. She notes that "it might be argued" that the chancellor did this under the heading that we just described, but calls such as assumption "speculative." That the chancellor must dutifully address each factor has been made clear in such recent opinions as Powell v. Ayars, 792 So.2d 240, 244-45 (Miss.2001). In that case, the chancellor discussed specifically only two of the Albright factors. Powell, 792 So.2d at 244. The Supreme Court stated that since it would not "attempt to correspond the Albright factors to the evidence found within the record, we remand so the chancellor may make findings on each applicable Albright factor." Id. at 244-45.[1]

¶ 9. Unlike Powell, where the chancellor made no findings on the record as to eight of the ten Albright factors, we are presented here with extensive and detailed findings by the chancellor. The chancellor enumerated ten factors, one of which was "extended family relationships" which would clearly fall under the rubric of "other factors relevant to the parent-child relationship." What the chancellor may have labeled the Albright factors is irrelevant. Unlike Powell, we do not have to search the record for evidence corresponding to each factor. The written findings of the chancellor are there for us to examine.

¶ 10. What is evident, not just mere speculation as alleged by Mrs. Turner, is that the chancellor considered the parenting skills factor when formulating his custody decision. Mrs. Turner argues that the chancellor erred in finding this combined factor favored her former husband for three reasons. First, she finds that the chancellor placed undue emphasis on religion. In his discussion of this factor, the chancellor mentioned religion on two occasions. The first reference was to Mr. Turner's claim that if he was granted custody, he would be able to take Alex to the same church that the family was then attending. The record also reveals that Mr. Turner's parents attended mass at this same church. Included in Mr. Turner's claim was that he would also be able to keep the same job and would be able to keep Alex in the same school.

¶ 11. The second reference to religion was this statement by the chancellor:

The proof has shown that Mr. Turner has consistently taken the child to church. There has been little religious training shown by the mother.

Mrs. Turner has cited some authority concerning undue emphasis on religion. Mrs. Turner notes that the Supreme Court has stated that parental religious differences cannot "be the sole basis for custody decisions." Hollon v. Hollon, 784 So.2d 943, 947 (Miss.2001). The key phrase here is "sole basis." Moreover, we do not find religion to have been especially significant in the discussions we have just quoted. These two references to religion are found in the midst of almost four full pages of discussion concerning this combined factor. During the hearing, the chancellor commented that he had "allowed a good bit of testimony on this religious issue" and that *656 he could not order either party to take the child to church. Religion was not unduly emphasized.

¶ 12. Second, Mrs. Turner alleges that the chancellor failed to address the continuity of care since the date of separation. Seventeen months passed between the date of separation and the divorce. Mrs. Turner alleges that she was the primary caregiver during that period. A chancellor is to consider the period of time prior to separation and also the period of time from separation until the judgment of divorce. Jerome v. Stroud, 689 So.2d 755, 757 (Miss.1997). During any given two week period, Mrs. Turner had Alex for eight days and Mr. Turner had Alex for six. Mrs. Turner stated at the hearing that during the separation the time that Alex spent with either her or Mr. Turner was almost evenly divided. Neither parent could be designated the primary caregiver during the period of separation.

¶ 13. Third, Mrs. Turner alleges that the chancellor did not properly consider negative aspects of Mr. Turner's behavior.

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