White v. White

93 So. 3d 33, 2011 WL 2548627, 2011 Miss. App. LEXIS 394
CourtCourt of Appeals of Mississippi
DecidedJune 28, 2011
DocketNo. 2009-CA-01701-COA
StatusPublished

This text of 93 So. 3d 33 (White v. White) 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
White v. White, 93 So. 3d 33, 2011 WL 2548627, 2011 Miss. App. LEXIS 394 (Mich. Ct. App. 2011).

Opinion

IRVING, P.J.,

for the Court:

¶ 1. This case is before this Court on appeal from the judgment of the Alcorn County Chancery Court by Anna White,1 challenging the award of custody of her minor children to John White, Anna’s former husband. We find that the chancellor correctly applied the Albright2 factors in determining the best interests of the chil[34]*34dren and, therefore, affirm the chancellor’s judgment.

FACTS

¶ 2. Anna and John were wed on October 13, 2001, in Lauderdale County, Alabama. Their marriage produced two children: Drew, born on May 10, 2002, and Kelli, born on March 13, 2003. Anna suffers from an optic-nerve condition which affects her eyesight, leaving her unable to drive. She also uses a wheelchair as a result of injuries she received in a car accident that rendered her an incomplete paraplegic.

¶ 3. During most of them marriage, the Whites resided in Alcorn County, Mississippi. John worked at ThyseenKrupp, ,and Anna stayed home with the children. John’s parents, Rick and Dorothy White, often assisted John and Anna in caring for the children.

¶ 4. In 2005, shortly before Kelli’s second birthday, Anna’s mother, Lynn Mitchell, claimed that Kelli disclosed to her that Rick had inappropriately touched her genitals. Rick denied the allegations when confronted by John and Anna. In December 2007, Anna claimed that Kelli again told her that Rick had inappropriately touched Kelli’s genitals. Anna and John again confronted Rick about the allegations, and Rick again denied touching Kelli inappropriately.

¶ 5. The allegations of abuse eventually caused strain on the Whites’ marriage, and on May 23, 2008, Anna and John separated. On May 28, 2008, Anna filed for a divorce in the chancery court on the ground of habitual cruel and inhuman treatment or, in the alternative, on the ground of irreconcilable differences. Anna retained custody of the children and moved them to an apartment in Lawrence-burg, Tennessee. After a hearing on August 13, 2008, the chancellor entered a temporary order granting Anna primary custody of the minor children and granting John visitation every other weekend. The temporary order also instructed John not to expose his children to Rick.

¶ 6. On February 20, 2009, the Whites filed a consent to divorce on the ground of irreconcilable differences but left the following issues for the chancellor to decide: custody of the children, visitation rights, restrictions to be placed upon contact with the paternal grandparents, determination of marital property and division of property, debts, child support, medical insurance for the children, alimony, and attorney’s fees. On May 22, 2009, the chancellor appointed a guardian ad litem (GAL) to represent the children and investigate the allegations of sexual abuse. On July 24, 2009, the GAL filed her initial report with the court. The GAL filed a supplemental report on August 10, 2009, at the request of the chancelloi’, to discuss the issues of whether Rick was a threat to the children and whether it would be harmful to the best interests of the children to be in Rick’s presence, even in a restricted manner. The GAL interviewed the Whites and their children, the paternal grandmother, the maternal grandparents, several neighbors, friends, and the proposed witnesses of both parties. Additionally, the GAL visited Anna’s home and personally supervised a visitation between Rick, Kelli, and Drew. In her supplemental report, the GAL concluded that Rick presented no threat to the children and recommended that they be allowed to visit with him. However, the GAL cautioned that because of the length of time since the children had last engaged in any contact with Rick, visitation should be restricted, and she suggested that Rick not be allowed to be alone with Kelli.

¶ 7. On August 14, 2009, the chancellor entered a judgment awarding John pri[35]*35mary physical custody of the children, finding that such was in the children’s best interests. The chancellor found no credible evidence supporting the sexual-abuse allegations. On August 24, 2009, Anna filed a motion for a new trial, reconsideration, or other relief. On September 21, 2009, the chancellor entered a final judgment and denied Anna’s request for a new trial, reconsideration, or other relief. Anna now appeals the chancellor’s August 14, 2009 judgment and the September 21, 2009 final judgment, arguing that the chancellor erred by determining that Rick did not sexually abuse Kelli, failing to make appropriate findings as to each Al-bright factor, and inappropriately weighing Anna’s physical disability when determining primary physical custody of the children. We find that Anna’s assertions of error can be summarized as a single consideration of whether substantial evidence supports the chancellor’s findings and custody determination.

¶ 8. Additional facts, as necessary, will be related during our analysis and discussion of the issue.

ANALYSIS AND DISCUSSION OF THE ISSUE

¶ 9. Chancellors possess broad discretion in domestic-relations cases, and an appellate court will not disturb the findings of a chancellor “unless the chancellor was manifestly wrong, clearly erroneous[,] or an erroneous legal standard was applied.” Williams v. Williams, 37 So.3d 1171, 1174 (¶ 4) (Miss.2010) (quoting Giannaris v. Giannaris, 960 So.2d 462, 467 (¶ 8) (Miss.2007)). When reviewing a case on appeal, an appellate court “does not reevaluate the evidence, retest the credibility of witnesses, [or] otherwise act as a second fact-finder.” Bower v. Bower, 758 So.2d 405, 412 (¶ 31) (Miss.2000) (citation omitted).

¶ 10. In considering Anna’s claims, we acknowledge that the “the polestar consideration in child[-]custody cases is the best interest and welfare of the child.” Albright, 437 So.2d at 1005. With respect to determining a child’s best interest, the Mississippi Supreme Court has stated that chancellors making custody decisions must consider the age of the child; the health and sex of the child; the continuity of care prior' to the separation; parenting skills and willingness to provide primary childcare; employment and responsibilities of employment; physical and mental health and age of the parents; emotional ties of parent and child; moral fitness of parents; the home, school, and community record of the child; the preference of the child; stability of the home environment and employment of each parent; and other factors relevant to the parent-child relationship. Id.

¶ 11. In applying the standard of review, we find that substantial evidence undergirds the chancellor’s decision. As to the Albright factors, the chancellor found that the age of the children, the continuity of care prior to separation, the emotional ties of parent and child, and the preference expressed by the children favored neither parent. However, the chancellor concluded that Kelli’s well-being had been negatively impacted by the sexual-abuse allegations, and, therefore, the factor regarding the health of the children slightly favored John. As to parenting skills and willingness to provide childcare, the chancellor found that Anna’s pursuit of the sexual-abuse allegations and unwillingness to allow the children to participate in extracurricular activities had had a negative impact, and, therefore, this factor also favored John. The chancellor found that the employment of the parents favored John as well, because he was employed and had expressed a willingness to modify

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Related

Williams v. Williams
37 So. 3d 1171 (Mississippi Supreme Court, 2010)
Albright v. Albright
437 So. 2d 1003 (Mississippi Supreme Court, 1983)
Giannaris v. Giannaris
960 So. 2d 462 (Mississippi Supreme Court, 2007)
Bower v. Bower
758 So. 2d 405 (Mississippi Supreme Court, 2000)

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Bluebook (online)
93 So. 3d 33, 2011 WL 2548627, 2011 Miss. App. LEXIS 394, Counsel Stack Legal Research, https://law.counselstack.com/opinion/white-v-white-missctapp-2011.