Boyd v. Boyd, 2010–CA–00200–COA.

• Citation: 83 So.3d 409
• Decision Date: 20 March 2012
• Docket Number: No. 2010–CA–00200–COA.,2010–CA–00200–COA.
• Parties: Lisa King BOYD, Appellant v. Edward Matthew BOYD, Appellee.
• Court: Court of Appeals of Mississippi

83 So.3d 409

Lisa King BOYD, Appellant

v.Edward Matthew BOYD, Appellee.

No. 2010–CA–00200–COA.

Court of Appeals of Mississippi.

Oct. 11, 2011.Rehearing Denied March 20, 2012.

James C. Mayo, Louisville, attorney for appellant.

Alan D. Rhea, Carthage, attorney for appellee.

Before IRVING, P.J., ISHEE and CARLTON, JJ.

ISHEE, J., for the Court:

¶ 1. Lisa Boyd appeals the decision of the Leake County Chancery Court awarding custody of her five minor children to her ex-husband, Matthew Boyd. Lisa argues that the chancellor erred by (1) deeming Matthew's requests for admissions admitted when denials were timely filed, according to the court's scheduling order, and using those admissions to determine child custody; (2) refusing to honor the custody choice by a child over the age of twelve years; (3) misapplying the Albright factors; and (4) failing to apply and interpret properly the spousal-and-child-abuse statute.

FACTS

¶ 2. Lisa and Matthew were married on August 7, 1998. Matthew was employed as a systems and business manager at Mississippi Baptist Health Systems in Jackson, Mississippi, while Lisa was a licensed practical nurse at the Sunshine Medical Clinic in Canton, Mississippi. Lisa had two children from two previous marriages: Cayla Delaine, born June 6, 1990; and Mariah Danielle, born May 11, 1995. During the marriage, Matthew legally adopted the two girls. Matthew had also been married twice previously, but he had no children from either marriage. Four other children were born over the course of the marriage: Megan Ashley, born March 20, 1999; Margaret Ellen Recie, born June 30, 2001; and twins, Madeline Lisa and Emily Anna, born June 22, 2003.

¶ 3. On December 13, 2007, Lisa filed for divorce in the Leake County Chancery Court, citing Matthew's habitual cruel and inhuman treatment toward her and, in the alternative, irreconcilable differences. The chancery court approved the parties' agreed temporary order on December 19, 2007, which called for joint custody, with alternating custody of the children every other week. The temporary order also appointed a guardian ad litem (GAL) for the children and directed that the GAL monitor the custody arrangement and file a preliminary report as to whether the custody arrangement was in the best interests of the children. On April 16, 2008, Matthew answered Lisa's complaint and filed a counterclaim for divorce, claiming that Lisa was guilty of habitual cruel and inhuman treatment and adultery and, alternatively, that irreconcilable differences had arisen and existed between the parties.

¶ 4. Matthew propounded ten requests for admission to Lisa and filed these requests with the chancery court on April 16, 2008, at the same time that he filed his answers to the complaint and counterclaim for divorce. Lisa failed to answer these requests within the required time allotted, which would have been in May 2008. However, the chancery court issued the first agreed scheduling order on October 1, 2008, which set a trial date for February 25, 2009. The order required that all responses to requests for admission, interrogatories, written depositions and documents be produced to each party by February 1, 2009. Lisa failed to meet this deadline as well. Matthew then filed a motion to compel answers to interrogatories and requests for production of documents. The scheduling order also set the trial date for February 25, 2009. The chancery court granted a joint motion for a continuance of the February trial and set a new trial date for March 25, 2009.

¶ 5. It is unclear why the trial set for March 25, 2009, did not occur on that date. However, the record shows that a second agreed scheduling order was entered setting another trial date for August 26–27, 2009. Included in the order was a new deadline for “all responses to the requests for admissions, interrogatories, written depositions and documents” to be produced by each party by July 1, 2009. At this time, Lisa had not submitted any pretrial discovery requests to Matthew. However, Lisa filed her answers to Matthew's interrogatories, requests for production, and requests for admission on April 20, 2009. Lisa then served Matthew with her first set of interrogatories and requests for production on April 30, 2009. Matthew submitted his answers to these requests on July 10, 2009. Dissatisfied with Lisa's responses to the interrogatories and requests for production of documents, Matthew filed a motion to compel her answers. Matthew later filed a motion to deem those matters admitted.

¶ 6. Lisa requested a continuation of the August trial date after receiving a copy of an amended report by the GAL wherein the GAL recommended a change from his previous recommendation. The GAL changed his previous recommendation of joint custody, and instead recommended that Matthew have full custody of the five minor children, and that Lisa have custody of Cayla, who was then a college student.

¶ 7. In his initial report, the GAL noted that Lisa and Matthew were on opposite ends of the parenting spectrum. Matthew was tougher on the children than Lisa was, and more demanding about keeping the house clean, chores completed, and sticking to a schedule. Lisa had cited several instances of Matthew's violent behavior toward her and the children. The GAL stated that these events occurred when Lisa interfered with something Matthew was doing—in most cases, enacting harsh discipline on the children. The GAL recommended that Matthew seek anger-management counseling. He also noted that both parents drank in the presence of the children, but he did not find any immoral behavior on the part of either parent. However, he noticed during his visits that the three older girls had been aloof to Matthew, that Megan was very close to Mariah, and that Cayla was very close to Lisa. Cayla did not have a good relationship with Matthew. Nonetheless, the GAL recommended joint custody for the younger children, with Lisa having sole custody of Cayla.

¶ 8. In his second report, the GAL stated that Matthew had attended anger-management counseling, and Matthew had read about and studied parenting issues. Lisa had also completed a parenting class at her church. The GAL again noticed that Lisa was more lenient with the children, did not keep up with regular house chores such as laundry or washing the dishes, and was prone to getting the children to school late. When the GAL asked Mariah, the twelve-year-old, about her preference to live with either parent, she informed the GAL that she had no preference. He recommended that the children not be separated, with Matthew awarded custody of the five younger children and Lisa receiving liberal visitation. The GAL again recommended that Lisa be awarded primary custody of Cayla.

¶ 9. The parties eventually withdrew their fault grounds and submitted the following issues to be determined by the court: (1) custody and visitation of the children; (2) child support; (3) who would claim the children as a tax deduction for federal and state income taxes; (4) who would pay health insurance for the minor children; (5) use and ownership of the three marital vehicles; and (6) payment of the GAL's fees. A new trial date was set for November 18, 2009.

¶ 10. On the second day of trial, the chancellor granted Matthew's motion to deem the matters admitted. Lisa's attorney objected and requested an extension of time in which to answer the admissions or, in the alternative, to amend the answers. The chancellor denied Lisa's request, and Lisa subsequently filed a motion to reconsider. The chancellor noted that pursuant to the rules, more than thirty days had elapsed since the requests for admission and no answer in conformity with the Mississippi Rules of Civil Procedure had been served. The chancery court also noted that Lisa had failed to file a motion to withdraw or amend the requests for admission, or seek any other relief pursuant to the rules of civil procedure, and the chancellor found that the rules did not permit an ore tenus motion on the second day of trial. Thus, the following statements were deemed admitted:

(1) Lisa and Matthew were married on or about August 7, 1998.

(2) Lisa has been guilty of habitual cruel and inhuman treatment toward Matthew.

(3) The habitual cruel and inhuman treatment by Lisa caused the separation on or about the 13th day of December 2007 in Leake County, Mississippi.

(4) While married to Matthew, Lisa committed adultery.

(5) The adultery caused the separation of the parties therein, on or about the 13th day of December 2007.

(6) Lisa has taken Ritalin or similar drug that was prescribed for one of her children during the marriage.

(7) Matthew has been the primary [caregiver] for said children prior to the separation of the parties therein.

(8) Matthew's mother delivered and picked up the children from school, daycare[,] and church due to Lisa not being dependable.

(9) The children request that Matthew deliver them to school due to Lisa not being able to have the children delivered on time.

(10) Lisa did not consult with Matthew in her decision to [allow] the children [to] receive the Gardasil HPV Vaccine.

¶ 11. At trial, Lisa vehemently denied that she had committed adultery. Matthew denied that he had been violent with either Lisa or the children during the marriage. However, he did admit to pushing Lisa so hard that she broke her tail bone, drinking alcohol when the children were present, and spanking the children. He also stated that he had sought anger-management counseling, and he did not drink as much when he was caring for the children.

¶ 12. The GAL testified that both parents were loving parents. However, the GAL noted that Matthew and Lisa demonstrated much different parenting styles. Matthew was more of a disciplinarian, while Lisa was more lax, yet more nurturing. The GAL reiterated his recommendation that Matthew be awarded primary custody of the five younger children, and Lisa be awarded...