Bower v. Bower, 1998-CA-01205-SCT.

• Decision Date: 06 April 2000
• Docket Number: No. 1998-CA-01205-SCT.,1998-CA-01205-SCT.
• Citation: 758 So.2d 405
• Parties: Cynthia Rena Boris BOWER v. Robert Frank BOWER.
• Court: Mississippi Supreme Court

758 So.2d 405

Cynthia Rena Boris BOWER v. Robert Frank BOWER.

No. 1998-CA-01205-SCT.

Supreme Court of Mississippi.

April 6, 2000.

Rehearing Denied June 1, 2000.

Michael J. Malouf, Michael J. Malouf, Jr., Jackson, Attorneys for Appellant.

William R. Wright, Stacey P. Stracener, W. Benton Gregg, Jackson, Attorneys for Appellee.

Before PRATHER, C.J., SMITH, and WALLER, JJ.

SMITH, J., for the Court:

STATEMENT OF THE CASE

¶ 1. This case is before the Court on appeal from the judgment of the Chancery Court of Rankin County, Mississippi by Cynthia Rena Boris Bower challenging the award of custody of her minor children to Robert Frank Bower.

STATEMENT OF THE FACTS

¶ 2. Robert Bower and Cynthia B. Bower ("Cindy") were married on July 8, 1989. Two children were born to the marriage, Austin Lee Bower, born September 25, 1992, and Lauren Elizabeth Bower, born August 2, 1995. Robert, age 34, is employed by Renal Care Group, and Cindy, age 34, is a psychiatric nurse manager for a psychiatric practice. Although the testimony evidences some disputed facts, both parents have performed parental duties for their children and shared in their support and rearing.

¶ 3. Shortly after the birth of the second child, Cindy started having post-partum depression. At this time, the Bowers' marriage began having trouble as well which added to her depression. Feeling lonely and neglected by her husband, Cindy began seeing Dr. Mark Webb for depression in August, 1996.

¶ 4. In November 1996, Cindy's father put America Online on the Bowers' home computer to allow Cindy to communicate with family and friends in Virginia. Robert asserts this is when their marriage began to deteriorate. It is alleged that Cindy spent a tremendous amount of time logged on to the Internet where she developed relationships with two men. Cindy asserts that both she and Robert used this service to search for jobs and homes in Virginia.

¶ 5. In February of 1997, Cindy began counseling with Sharon Pugh, a marriage and family counselor, for her continued depression based on the recommendation of Dr. Mark Webb. Sharon Pugh recommended that Cindy move out of the marital home around March 28, 1997. Robert supported this move, and the couple agreed they would split custody of the children with Robert having the first weekend. During this separation, Cindy went to New Mexico for the Easter weekend to visit with Jeffery Sartain and his girlfriend in Albuquerque. Cindy met Sartain via the Internet. In April 1997, Cindy informed Robert she would be spending the weekend in Memphis. Robert hired a private investigator who saw Cindy and Jeffrey Sartain drive into Memphis and go straight to a Hampton Inn where they spent the weekend. Cindy denied that they were romantically involved or that anything inappropriate happened. Cindy testified Robert believed her that nothing happened and that he wished that they could work things out. At the end of April, 1997, Cindy attempted to reconcile their marriage by moving back into the marital home. She and Robert began counseling sessions with Janie Pillow.

¶ 6. In October 1997, Cindy informed Robert she thought the counseling was a waste of time. By this time, Cindy had begun a relationship on the Internet with Johnny Harris of Lynchburg, Virginia. Robert filed his Complaint for Divorce on October 21, 1997, based upon irreconcilable differences.

¶ 7. On January 5, 1998, Cindy filed for temporary relief for custody of the children. On January 15, 1998, Cindy moved to Virginia where she lived and worked at the time of the trial. On January 29, 1998, Robert filed his Amended Complaint for Divorce and Motion for Temporary Relief alleging adultery and seeking custody of the children. Both motions were heard on January 30,1998, with Cindy testifying that she had a sexual affair with Johnny Harris during December of 1997 and January of 1998 while Robert had taken the children to Virginia to visit with their parents. Cindy invited Harris to stay in the marital home where they were intimate. The chancellor entered his order on March 30, 1998, after consideration of the Albright factors.¹ Among other things, the temporary order also provided that "at no time will the custodial parent visit or have over-night visitation with a person of the opposite sex, to whom the custodial parent is not related by blood or marriage." Cindy filed her Answer to Amended Complaint on April 7, 1998, where she denied that she had committed adultery. Cindy continued to see Harris; she did not understand the chancellor's order to mean she could not see other men when the children were not present. At the trial of this matter, Cindy admitted her relationship with Harris while the children visited with Robert in Jackson.

¶ 8. The final hearing was set for April 9, 1998. The issues before the court were divorce on the ground of uncondoned adultery by Cindy, child custody and visitation, and child support. The chancellor's order stated in pertinent part:

The morning after her abandonment of her family, Cindy boarded a flight bound for Albuquerque, New Mexico to be with a man she had "met" over the Internet but never in person. Cindy's decision to leave her family Easter weekend and spend that special time with a stranger constituted a clear indication of her priorities: stranger over children and unknown and possibly dangerous surroundings over the comforts of home and Easter weekend. This action demonstrates "unwillingness" rather than "willingness" to parent.

Cindy drove to Memphis after telling her husband she just wanted to "get away". She spent three nights in a hotel room with the man from New Mexico. After the court entered its temporary order prohibiting Cindy from staying overnight with a man, she willingly disobeyed the court's order by spending the night with Johnny Harris and this defiant act took place even though Cindy knew this court would view her contemptuous behavior unfavorably when the decision to award custody was made. This deliberate violation of a court order demonstrates her unwillingness to parent; choices to engage in illicit relationships with strange men instead of spending time with her children clearly demonstrates her unwillingness to make the choice of her children over her hedonist inclinations.

¶ 9. Based on the evidence, the trial court awarded a divorce to Robert on the ground of uncondoned adultery. Further, the court ordered Robert to have care, custody and control of the minor children. Visitation with Cindy was awarded as follows: 1st and 3rd weekends-Friday from 6:00 p.m.; 45 continuous days in the summer; one week at Christmas; and four days every other year for Thanksgiving.

¶ 10. Specifically, Cindy appeals to this Court from this decision and raises the following issues for our review:

STATEMENT OF ISSUES

I. WHETHER THE CHANCELLOR ERRED IN PUNISHING CINDY FOR HER MARITAL MISCONDUCT BY DENYING HER CUSTODY.

II. WHETHER THE CHANCELLOR ERRED IN NOT CONSIDERING THE BEST INTEREST OF THE CHILDREN.

III. WHETHER THE CHANCELLOR ERRED IN THE APPLICATION OF THE ALBRIGHT FACTORS.

IV. WHETHER THE CHANCELLOR ERRED IN ADMITTING PAUL DAVEY AS EXPERT IN INTERNET ADDICTION AND INTERNET PORNOGRAPHY.

V. WHETHER THE CHANCELLOR ERRED IN ALLOWING THE INTERNET BILLING DOCUMENTS INTO EVIDENCE.

VI. WHETHER THE CHANCELLOR ERRED IN HIS FINDINGS OF FACTS.

STANDARD OF REVIEW

¶ 11. The standard of review employed by this Court in domestic relations cases is abundantly clear. Chancellors are vested with broad discretion, and this Court will not disturb the chancellor's findings unless the court was manifestly wrong, the court abused its discretion, or the court applied an erroneous legal standard. Sandlin v. Sandlin, 699 So.2d 1198, 1203 (Miss.1997). However, we will not hesitate to reverse should we find that a chancery court was manifestly wrong, abused its discretion, or applied an erroneous legal standard. Lahmann v. Hallmon, 722 So.2d 614, 618 (Miss.1998).

DISCUSSION OF LAW

I. WHETHER THE CHANCELLOR ERRED IN PUNISHING CINDY FOR HER MARITAL MISCONDUCT BY DENYING HER CUSTODY.

II. WHETHER THE CHANCELLOR ERRED IN NOT CONSIDERING THE BEST INTEREST OF THE CHILDREN.

III. WHETHER THE CHANCELLOR ERRED IN THE APPLICATION OF THE ALBRIGHT FACTORS.

Custody of the Minor Children

¶ 12. Cindy's assignments of error with regard to the chancellor's decision to deny her custody of the minor children to punish her rather than consider the best interest of the children and the lower court's erroneous legal standards and findings in the application of the Albright factors are addressed here. It is well-settled that in child custody cases, the primary and overriding consideration is the best interest of the child. Albright v. Albright, 437 So.2d 1003, 1005 (Miss.1983). The Albright factors, now the standard for awarding child custody, were set out by the Court as follows:

[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 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.

Albright, 437 So.2d at 1005.

¶ 13. After applying the Albright factors, the chancellor awarded custody to Robert. Cindy contends that the chancellor erred in granting Robert custody of the children. This Court, however is "bound by the chancellor's findings unless it can be said with a reasonable certainty that those findings were manifestly wrong and against the overwhelming...