Brekeen v. Brekeen

• Decision Date: 24 June 2004
• Docket Number: No. 2002-CA-01136-SCT.,2002-CA-01136-SCT.
• Citation: 880 So.2d 280
• Parties: Barbara Ann BREKEEN v. William Lee BREKEEN.
• Court: Mississippi Supreme Court

880 So.2d 280

Barbara Ann BREKEEN v. William Lee BREKEEN.

No. 2002-CA-01136-SCT.

Supreme Court of Mississippi.

June 24, 2004.

Rehearing Denied September 2, 2004.

Duncan L. Lott, Booneville, attorney for appellant.

Joe M. Davis, New Albany, attorney for appellee.

EN BANC.

CARLSON, Justice, for the Court.

¶ 1. On May 8, 2002, the Tishomingo Chancery Court awarded William Lee Brekeen a divorce from Barbara Ann Brekeen on the grounds of adultery. The chancery court further awarded custody of the parties' minor child to William and granted Barbara liberal visitation rights. Feeling aggrieved by the chancellor's ruling regarding the custody of her minor child, Barbara has timely filed her appeal before this Court. Finding that the chancellor placed too much weight on one particular Albright factor, we reverse the judgment of the Tishomingo County Chancery Court and remand this case for further proceedings.

FACTS AND PROCEEDINGS IN THE TRIAL COURT

¶ 2. William and Barbara Brekeen were married on July 20, 1991. On October 19, 1994, their minor child was born. Barbara left their home at the Tishomingo County State Park, where her husband was employed as park manager, on June 26, 2001, and moved into the parties' city home in Tishomingo. Barbara's son from a previous marriage later moved into the city to live with his mother.

¶ 3. William filed for divorce on the grounds of Barbara's alleged affair with another man. Barbara also filed for divorce on the grounds of habitual, cruel and inhuman treatment. After the separate causes were consolidated, the chancellor awarded temporary custody of the parties' minor child to William and granted temporary visitation to Barbara until final disposition. After a trial on the merits was conducted, the chancellor awarded William a divorce from Barbara on the grounds of adultery and awarded William primary legal custody of the parties' minor child. Barbara was awarded extensive visitation rights. The following is the judgment of chancellor:

At this time, the Court will now consider each of the [Albright] guidelines separately, which are as follows:

1. Age, Health and Sex of Child.

The minor female child of the parties is eight years of age and in good health.

2. Continuity of Care Prior to the Separation.

Both parents were actively involved in the care of the minor child before the separation on June 26, 2001, but Barbara Ann Brekeen did not work when the child was younger and did participate more in the care of the child, primarily because William Lee Brekeen was working on a full time basis.

3. Parenting Skills and the Willingness and Capacity to Provide the Primary Child Care to the Child.

Both parties have good parenting skills, are actively involved in the minor child's school and church activities and have demonstrated by the proof they respectively presented that each has the capacity to provide for the care of the minor child.

4. Employment of the Parents and Responsibilities of that Employment.

William Lee Brekeen is employed by the Mississippi Department of Wildlife, Fisheries and Parks and serves as park manager of Tishomingo State Park, where he has overall management of the operation of that park. At the temporary hearing, Barbara Ann Brekeen worked for the Town of Tishomingo, but has since been terminated from this employment, and now works at Town and Country Furniture Store in Iuka, Mississippi.

5. Physical and Mental Health and Age of Parents

Both William Lee Brekeen and Barbara Ann Brekeen are 41 years of age and are in good physical and mental health.

6. Emotional Ties Between the Parents and Child

Both parties have strong emotional ties with the minor child, and she with them.

7. Moral Fitness of Parents

The proof clearly established that William Lee Brekeen is a morally fit individual. While he did not attend church on a regular basis with his family before the date of separation on June 26, 2001, since he obtained the temporary custody of the minor child by prior order of the Court dated September, 2001, he and the minor child attend church regularly. The proof did establish that William Lee Brekeen had a child, apparently out of wedlock, many years ago, and agree to have his parental rights in that child terminated.

Barbara Ann Brekeen has used very poor judgment in her personal life in that she has clearly engaged in an extra-marital affair with an individual she met while working with the Town of Tishomingo. This individual also worked for the Town of Tishomingo as a policeman. Because her relationship with this police officer and because of unauthorized long distance calls at the City Hall in Tishomingo, Mississippi, Barbara Ann Brekeen was terminated from her employment between the temporary hearing held in this matter in September, 2001, and the date of the first day of the hearing on the merits held on February 15, 2002.

This relationship by Barbara Ann Brekeen with the policeman caused her to leave the marital home at the state park, leaving William Lee Brekeen, her oldest son, ["John"], and the 8 year old daughter of the parties, without notice to the family members. She was gone for over a week without contacting William Lee Brekeen, the minor child or ["John"]. Later she came back and took ["John"] with her to the home in Tishomingo, Mississippi where she has remained since that time.

Both parties acknowledged that William Lee Brekeen tried to persuade Barbara Ann Brekeen to seek marriage counseling after the separation, but she refused to do so. Barbara Ann Brekeen admitted she told William Lee Brekeen "her feelings had changed" and that she left her three family members "because I wanted to think about what I was going to do."

This bizarre action on the part of Barbara Ann Brekeen in leaving her family without notice, particularly her eight year old minor daughter, her adulterous affair at the expense of her family, and her termination from her employment at the Town of Tishomingo, all this Court to have grave and serious concerns about her moral fitness for custody of the minor child.

8. The Home, School and Community Records of the Child.

The proof established that the minor child of the parties is a good student, making straight A's, at Tishomingo Elementary School.

9. Preference of the Child.

Because of the young age of the minor child, age eight, this factor is not applicable.

10. Stability of the Home Environment of Each Parent.

William Lee Brekeen has a stable home in the manager's home provided to him at Tishomingo State Park. Since the date of separation on June 26, 2001, Barbara Ann Brekeen and her oldest son, ["John"], reside in a home the parties jointly own at [...].

11. Other Factors Relevant to the Parent-Child Relationship.

As stated above, the actions of Barbara Ann Brekeen in her personal life cause this Court to have doubt as to her stability to serve as the primary custodian of her minor daughter. Who is to say that she might not repeat this dismal conduct in the future.

On the other hand, despite this strange conduct by Barbara Ann Brekeen, there is no doubt that she loves her daughter, has played a tremendous part in her growth, development and activities in her younger years, and clearly desire to continue doing so in the future.

Further, the Court is very mindful of the physical needs in adjustment with the minor daughter will face in a few short years which can best be assisted by her mother.

* * * * * * * *

Based upon all the forgoing, the Court reaches the inescapable conclusion that the best interest of the minor child would be for William lee Brekeen to have the primary legal custody of the minor child, and that become the order of the Court.

DISCUSSION

¶ 4. As this Court has stated on numerous occasions, absent an abuse of discretion, we will uphold the decision of the chancellor. "This Court will not disturb the factual findings of the chancellor unless said factual findings are manifestly wrong or clearly erroneous." Jerome v. Stroud, 689 So.2d 755, 757 (Miss.1997) (citing McAdory v. McAdory, 608 So.2d 695, 699 (Miss.1992)). "However, where the chancellor improperly considers and applies the Albright factors, an appellate court is obliged to find the chancellor in error." Hollon v. Hollon, 784 So.2d 943, 946 (Miss.2001) (citing Stroud, 689 So.2d at 757 (citing Smith v. Smith, 614 So.2d 394, 397 (Miss.1993))).

¶ 5. This Court has continuously held that in all child custody cases the polestar consideration shall remain the best interest and welfare of the child. Albright v. Albright, 437 So.2d 1003, 1005 (Miss.1983). The Albright factors, used to determine child custody based on the best interests of the child, include:

1) age, health and sex of the child; 2) determination of the parent that 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 11) other factors relevant to the parent-child relationship.

Hollon, 784 So.2d at 947 (citing Albright, 437 So.2d at 1005).

¶ 6. In Carr v. Carr, 480 So.2d 1120 (Miss.1985), this Court held that "the fact of adultery alone does not disqualify a parent from custodianship but that the polestar consideration in original custody determinations is the best interest and welfare of the minor child." Applying the Albright factors, this Court noted that

moral fitness of a parent encompasses the charge of adultery. But moral fitness is but one factor to be considered, and it is a factor worthy of weight in determining the best interest of the child. Adultery of a

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