Watts v. Watts

854 So. 2d 11, 2003 WL 1888539
CourtCourt of Appeals of Mississippi
DecidedMarch 11, 2003
Docket2001-CA-01181-COA
StatusPublished
Cited by11 cases

This text of 854 So. 2d 11 (Watts v. Watts) 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
Watts v. Watts, 854 So. 2d 11, 2003 WL 1888539 (Mich. Ct. App. 2003).

Opinion

854 So.2d 11 (2003)

Hollie Jean WATTS, Appellant,
v.
Mark Harrison WATTS, Appellee.

No. 2001-CA-01181-COA.

Court of Appeals of Mississippi.

March 11, 2003.
Certiorari Denied September 4, 2003.

*12 James R. Hayden, Hattiesburg, attorney for appellant.

Dempsey M. Levi, Ocean Springs, attorney for appellee.

En Banc.

MODIFIED OPINION ON MOTION FOR REHEARING

LEE, J., for the Court.

¶ 1. The motion for rehearing on this matter is denied. The original opinion issued in this case is withdrawn, and the following opinion is substituted as the opinion of this Court.

PROCEDURAL HISTORY AND FACTS

¶ 2. Hollie Jean Watts and Mark Harrison Watts were married on May 24, 1986, and two daughters were born to their marriage, Jessica, in 1988, and Megan, in 1992. Hollie and Mark separated on January 20, 2000, and were granted a divorce on the grounds of irreconcilable differences on June 20, 2001. The special judge awarded custody of the children to Mark with liberal visitation to Hollie, denied alimony to Hollie, ordered Hollie to pay child support, and ordered the division of marital assets and liabilities. Hollie appeals to this Court asserting the following issues: (1) the special judge should have recused himself voluntarily; (2) the decision of the special judge was not in the best interest of the children due to the length of time between the trial and the judge's final decision; (3) the special judge erred in not awarding alimony to Hollie; and (4) the special judge erred in granting primary custody of the minor children to Mark. As further described, we find that the special judge erroneously awarded primary custody of the children to Mark and we reverse and remand.

DISCUSSION OF ISSUES

I. DID THE SPECIAL JUDGE ERR IN GRANTING PRIMARY CUSTODY OF THE CHILDREN TO MARK WATTS?

¶ 3. The standard of review in child custody cases is similar to the standard in all domestic relations cases. A reversal is proper if the chancellor is manifestly in error or has applied an erroneous legal standard. Williams v. Williams, 656 So.2d 325, 330 (Miss.1995). Appellate courts need only to determine if the chancellor's decision was supported by credible evidence. Lee v. Lee, 798 So.2d 1284(¶ 22) (Miss.2001).

*13 ¶ 4. It is well settled that in child custody cases, the polestar consideration is the best interest of the child. Albright v. Albright, 437 So.2d 1003, 1005 (Miss.1983). The factors used to determine what is in the "best interests" of a child with regard to custody are: (1) age, health and sex of the child; (2) determination of the parent that had the continuity of care prior to the separation; (3) which parent 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 the 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 (11) other factors relevant to the parent-child relationship. Id.

¶ 5. However, an appellate court must find a chancellor in error where the chancellor improperly considers and applies the Albright factors. Hollon v. Hollon, 784 So.2d 943(¶ 11) (Miss.2001). In determining whether the chancellor abused his discretion in applying the Albright factors, the appellate court "reviews the evidence and testimony presented at trial under each factor to ensure [the chancellor's] ruling was supported by record." Hollon, 784 So.2d at (¶ 13). Furthermore, differences in religion, personal values, and lifestyles should not be the sole basis for custody decisions. Albright, 437 So.2d at 1005.

¶ 6. We must now review the evidence and testimony presented at trial under each Albright factor to determine whether the ruling by the special judge was supported by the record.

Age, health and sex of the children

¶ 7. Jessica was born in 1988 and Megan was born in 1992. The special judge weighed this factor in Hollie's favor because the children are females. According to Mark's testimony, he admitted that Hollie would be better equipped to handle certain issues as the girls matured. We find the record supported the special judge's decision that this factor favors Hollie.

Continuity of care

¶ 8. The special judge found Mark to be more credible on this factor. However, Hollie has had physical custody of the children since the separation for over a year and a half. The special judge neglected to point out that Mark had neither paid child support to Hollie since the separation nor attempted to take custody of the children. Furthermore, the special judge inexplicably placed excessive weight on the fact that Mark occasionally cut the girls' hair and trimmed their nails. We fail to see how occasional grooming by Mark or his mother outweighs Hollie's proven record of continued care for the children. We find the determination by the special judge to be unsupported by the evidence.

Parenting skills and willingness and capacity to provide primary child care

¶ 9. The special judge recognized that both Hollie and Mark are close to the children and each desires to be the primary caregiver of the children. However, this factor was also weighed heavily in Mark's favor, despite evidence requiring the contrary. The special judge completely discredited any testimony citing to the fact that Hollie is a good mother and only focused on unsubstantiated testimony against Hollie. Mark testified that Hollie is a good mother, even though he constantly tried to discredit her abilities. Hollie gets the girls ready for school, takes them to school, picks them up after school, participates *14 directly in their extracurricular activities, and takes them to the doctor. On the other hand, Mark's hectic work schedule prevents him from participating in the children's extracurricular activities. Mark claims to have the better parenting skills, but his only reason in support of this statement is the fact that he occasionally trims their fingernails or his mother gets their hair cut. According to the record, Mark has made no effort to retain custody of the children since the separation. In fact, the record shows that Mark's mother takes care of the children more than he does. We find the record does not support weighing this factor in Mark's favor, and the special judge abused his discretion in so finding.

The employment of the parent and the responsibilities of that employment

¶ 10. We find it inexplicable as to why the special judge found in favor of Mark on this factor. Hollie is a middle school teacher with work hours ideal for raising children, including having summers free to spend with the children. Hollie is able to pick the children up from school and take them to any activities in which they are involved. Mark is an attorney and is also the Jackson County prosecuting attorney. He has long work hours and would not be able to pick the children up from school. Mark testified that he would have to pay his secretary or someone else to pick the children up and keep them until he got off work. If that failed, his mother would have to pick them up, take them to any extracurricular activities and keep them until Mark got home.

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Cite This Page — Counsel Stack

Bluebook (online)
854 So. 2d 11, 2003 WL 1888539, Counsel Stack Legal Research, https://law.counselstack.com/opinion/watts-v-watts-missctapp-2003.