Webb v. Webb

78 So. 3d 933, 2012 Miss. App. LEXIS 50, 2012 WL 181431
CourtCourt of Appeals of Mississippi
DecidedJanuary 24, 2012
DocketNo. 2010-CA-01626-COA
StatusPublished
Cited by2 cases

This text of 78 So. 3d 933 (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, 78 So. 3d 933, 2012 Miss. App. LEXIS 50, 2012 WL 181431 (Mich. Ct. App. 2012).

Opinion

ROBERTS, J.,

for the Court:

¶ 1. The Monroe County Chancery Court granted Brian Webb and Patricia Webb a divorce based on irreconcilable differences, but they left the issue of custody for the chancery court to decide. Based on findings by the appointed guardian ad litem (GAL) and evidence presented at the custody hearing, the chancellor awarded sole legal and physical custody of the parties’ daughter, Sarah Webb, to Patricia. Feeling aggrieved, Brian now appeals.

FACTS AND PROCEDURAL HISTORY

¶ 2. Brian and Patricia were married on November 11, 2001, in Monroe County, Mississippi. Shortly thereafter, Patricia gave birth to Sarah on November 30, 2001. Patricia has three other children from pri- or relationships. After Sarah’s birth, the couple experienced multiple marital disputes, which ultimately led to the couple’s separation on May 2, 2007. Patricia filed for divorce from Brian alleging the ground of habitual cruel and inhuman treatment or, in the alternative, irreconcilable differences. The chancery court entered a temporary agreed order on June 1, 2007, granting joint custody of Sarah to Patricia and Brian.

¶ 3. On February 8, 2008, Patricia and Brian both consented to an irreconcilable-differences divorce, but they left the matter of child custody for the chancery court to decide. The chancery court heard testimony from both Patricia and Brian, as well as other witnesses, over the course of several hearings. The hearings were held on the following days: May 27, 2008; September 29, 2008; July 28, 2009; August 24, 2009; and May 20, 2010.

¶ 4. At the May 27, 2008 hearing, the chancery court appointed a GAL for Sarah. On January 28, 2009, Brian filed a motion for emergency relief against Patricia because he noticed bruising on Sarah after she would return from Patricia’s home. Brian believed this bruising was caused by Trenton, Patricia’s teenage son who was living with her at the time. As a result, the chancery court entered an agreed order of emergency relief on February 19, 2009, ordering Patricia to supervise Sarah’s interactions with Trenton and to prevent any “inappropriate or potentially harmful physical contact.”

¶ 5. The chancellor granted Patricia and Brian a divorce based on irreconcilable differences, and after reviewing the hearing transcripts and the GAL’s final and supplemental reports, the chancellor accepted the GAL’s recommendation to grant Patricia sole legal and physical custody of Sarah. Brian was granted “reasonable and liberal visitation” and ordered to pay $93.80 per month in child support.

¶6. Feeling aggrieved, Brian now appeals and raises the following issues:
I. Whether the chancery court abused its discretion, was manifestly wrong, or applied an incorrect legal standard when it failed to consider certain pertinent factors pursuant to Albright.
II. Whether the chancery court committed clear error or abused its discretion by not alternatively awarding joint custody of Sarah to Brian and Patricia.

STANDARD OF REVIEW

¶ 7. We apply a narrow standard of review of a chancellor’s child-custody decision, and we give deference to the chancellor’s findings of fact in these situations as he “must determine ‘the credibility and weight of evidence.’ ” Alderson v. Alderson, 810 So.2d 627, 629 (¶ 4) (Miss.Ct. App.2002) (quoting Powell v. Ayars, 792 [936]*936So.2d 240, 243 (¶ 6) (Miss.2001)). Further, “[t]he chancellor’s decision must be supported by substantial evidence established by the record of the case.” Id. (citing Limbaugh v. Limbaugh, 749 So.2d 1244, 1246 (¶ 9) (Miss.Ct.App.1999)). It is well established that we may only reverse a chancellor’s findings if his decision was manifestly wrong, clearly erroneous, or he applied an incorrect legal standard. Id. (citing Limbaugh, 749 So.2d at 1246 (¶ 9)). However, questions of law receive a de novo review. Montgomery v. Montgomery, 20 So.3d 39, 42 (¶ 9) (Miss.Ct.App. 2009) (citing Broome v. Broome, 832 So.2d 1247, 1251 (¶ 7) (Miss.Ct.App.2002)).

ANALYSIS

I. Albright Factors

¶ 8. As with all child-custody cases, “the polestar consideration ... is the best interest and welfare of the child.” Albright v. Albright, 437 So.2d 1003, 1005 (Miss.1983). Brian argues that the chancellor erred in finding that certain Albright factors favored Patricia over him, and, as a result, the chancellor erred in awarding custody of Sarah to Patricia.

¶ 9. In Albright, the Mississippi Supreme Court outlined several factors to be considered when determining which parent should be granted custody. These factors are as follows: the age, health, and sex of the child; which parent had the continuity of care prior to separation; which parent has the better parenting skills; the employment and employment responsibilities of each parent; the physical and mental health and the age of each parent; the emotional ties between the parent and child; the moral fitness of the parent; the home, school, and community record of the child; a child over the age of twelve’s preference; the stability of the home environment and employment of each parent; and any other factors relevant to a parent-child relationship. Id.

¶ 10. In his thorough findings of facts and conclusions of law, the chancellor applied the evidence presented to each factor. He found the following factors favored Patricia: age, sex and health of the child; better parenting skills; employment and employment responsibilities of the parent; the physical and mental health and age of the parent; and the moral fitness of the parent. After a discussion of Brian’s mother’s role in Sarah’s life versus the desire to keep Sarah with her half sister, the chancellor found the last factor, any other factor relevant to the parent-child relationship, favored Patricia. The chancellor found the continuity-of-care factor weighed in Brian’s favor. As for the remaining issues, the chancellor found the emotional-ties factor and the stability-of-the-home-environment-and-employment-of-each parent factor favored neither Patricia nor Brian.

¶ 11. Keeping in mind our standard of review and the polestar consideration in child-custody cases, we begin our analysis with Brian’s argument that the chancellor erred in finding certain Albright factors in favor of Patricia. Specifically, Brian argues the chancellor erred in finding the following factors in favor of Patricia: the moral fitness of the parent; employment and employment responsibilities; the physical and mental health and age of the parent; the parenting skills of the parent; the home, school, and community record of the child; the stability of the parent’s home and employment; and any other relevant factor (i.e. separation from the half sister).

¶ 12. Brian argues the chancellor erred in relying on the evidence presented of Brian’s smoking, alcohol consumption, and drug use when finding in favor of Patricia on the moral fitness factor. Brian [937]*937submits that he never used any illegal drugs and had not consumed alcohol or smoked cigarettes in several years, and he never did so in front of Sarah. Brian also argues Patricia testified that she had also consumed alcohol, used illegal drugs, and had two abortions, which the chancellor failed to consider in this factor.

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Bluebook (online)
78 So. 3d 933, 2012 Miss. App. LEXIS 50, 2012 WL 181431, Counsel Stack Legal Research, https://law.counselstack.com/opinion/webb-v-webb-missctapp-2012.