Webb v. Webb

974 So. 2d 274, 2008 WL 307713
CourtCourt of Appeals of Mississippi
DecidedFebruary 5, 2008
Docket2006-CA-01701-COA
StatusPublished
Cited by1 cases

This text of 974 So. 2d 274 (Webb v. Webb) 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
Webb v. Webb, 974 So. 2d 274, 2008 WL 307713 (Mich. Ct. App. 2008).

Opinion

974 So.2d 274 (2008)

Lorena T. WEBB, Appellant
v.
Jeffery R. WEBB, Appellee.

No. 2006-CA-01701-COA.

Court of Appeals of Mississippi.

February 5, 2008.

*275 H.R. Garner, Hernando, attorney for appellant.

Jason D. Herring, Tupelo, attorney for appellee.

Before LEE, P.J., IRVING and ROBERTS, JJ.

LEE, P.J., for the Court.

FACTS AND PROCEDURAL HISTORY

¶ 1. Lorena and Jeffery Webb were married on August 19, 2000, in Lee County, Mississippi. The parties separated in January 2006. One child, Brayden Webb, was born of the marriage on February 16, 2005. Lorena's daughter from a previous relationship also lived with the couple. The couple was granted a divorce in September 2006, and custody of Brayden was awarded to Jeffery. Lorena now appeals arguing that the chancellor erred by not awarding her custody of Brayden.

¶ 2. Lorena was Brayden's primary care-giver for the first six months of his life. In August 2005, Lorena began a job at Tri-Lakes Emergency Room in Batesville, Mississippi, and the parties shared the care-taking responsibilities of the child. A month after beginning work at Tri-Lakes, *276 Lorena met Dr. Robert Mayfield, with whom she later had an affair. Other pertinent facts regarding Jeffery and Lorena and Brayden's care will be discussed as relevant in analyzing the issue of child custody.

¶ 3. Jeffery filed a complaint for divorce in the Chancery Court of Calhoun County on March 9, 2006, on the ground of adultery or, in the alternative, irreconcilable differences. The parties agreed upon many issues regarding the divorce, including division of a majority of the marital assets. A hearing was held regarding the custody of the minor child, child support, and attorney's fees. Following the hearing, the chancellor entered an opinion ordering that Jeffery be granted a divorce on the ground of adultery. The chancellor also awarded custody of Brayden to Jeffery. Lorena was awarded visitation rights and ordered to pay $400 a month in child support until the emancipation of the child.

¶ 4. Aggrieved by the chancellor's decision, Lorena appeals citing the following issue: the chancellor erred in granting Jeffery physical custody of Brayden.

¶ 5. Finding no error, we affirm.

STANDARD OF REVIEW

¶ 6. This Court will not disturb the findings of a chancellor unless we find an abuse of discretion, an erroneous application of law, or manifest error. Andrews v. Williams, 723 So.2d 1175, 1177(¶ 7) (Miss. Ct.App.1998). Thus, if we find substantial evidence in the record to support the chancellor's findings, we will not reverse. Wilbourne v. Wilbourne, 748 So.2d 184, 186(¶ 3) (Miss.Ct.App.1999).

¶ 7. An appellate court must find a chancellor in error where the chancellor improperly considered and applied the Albright factors. Hollon v. Hollon, 784 So.2d 943, 946(¶ 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." Id. at 947(¶ 13).

DISCUSSION

¶ 8. 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 interest of a child with regard to custody are: (1) the age, health, and sex of the child; (2) a determination of the parent who 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 parents and responsibilities of that employment; (5) the physical and mental health and age of the parents; (6) the 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) the stability of home environment and employment of each parent; and (11) other factors relevant to the parent-child relationship. Id. The chancellor found eight factors to be neutral and three to weigh in Jeffery's favor.

¶ 9. On appeal, Lorena questions the chancellor's ruling on the following factors which she believes weigh in her favor: (1) the age, health, and sex of the child, (2) continuity of care, (4) employment responsibilities of the parents, (7) moral fitness of the parents, and (10) stability of the home environment and employment of each parent. We will discuss the chancellor's conclusions *277 on each Albright factor with emphasis on those which Lorena argues were in error.

1. Age, health, and sex of the child

¶ 10. At the time of trial, Brayden was a healthy eighteen-month-old boy. The chancellor found that both parents were fit to take care of Brayden and held that Brayden's age and sex did not weigh in favor of either parent. Lorena argues that the chancellor committed reversible error by not weighing Brayden's young age in her favor.

¶ 11. Although weakened over the years, the tender years presumption is still a viable consideration. Lee v. Lee, 798 So.2d 1284, 1289(¶ 18) (Miss.2001). Consequently, this factor probably should have weighed slightly in favor of Lorena unless given an explanation otherwise. See Copeland v. Copeland, 904 So.2d 1066, 1075 (¶¶ 34-36) (Miss.2004) (finding age factor to weigh slightly in favor of mother of eighteen-month-old male). However, in Law v. Page, 618 So.2d 96, 101 (Miss.1993), our supreme court held that "the tender years doctrine seems less controlling, especially when considering [the child's] male gender." We cannot find that the chancellor's conclusion on this issue rises to the level of manifest error, and certainly does not warrant reversal, since the tender years doctrine is only a presumption to be considered along with the other Albright factors. Copeland, 904 So.2d at 1075(¶ 34).

2. Continuity of care

¶ 12. As for continuity of care, the chancellor found neither parent to have an advantage. Lorena argues that the chancellor erred in not weighing this factor in her favor because she had been Brayden's primary caregiver for the majority of his life.

¶ 13. The parties do not dispute that for the first six months of Brayden's life Lorena was his primary caregiver. The chancellor found Jeffery to be the primary caregiver for the following eight months due to Lorena working a nursing job at night in Batesville. For the remaining few months before the hearing, the chancellor found the care-taking responsibilities were shared equally.

¶ 14. Although Brayden was only eighteen months old at the time of the hearing, the record does not show that Lorena spent significantly more time with Brayden than Jeffery. We cannot find that the chancellor erred in not favoring either party as to continuity of care.

3. Parenting skills and willingness and capacity to provide child care

¶ 15. The chancellor found both parties had good parenting skills and were willing to provide child care so neither party was favored on this factor. Lorena does not take issue with Jeffery's parenting skills.

4. Employment responsibilities

¶ 16.

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Bluebook (online)
974 So. 2d 274, 2008 WL 307713, Counsel Stack Legal Research, https://law.counselstack.com/opinion/webb-v-webb-missctapp-2008.