Brock v. Brock

• Decision Date: 05 April 2005
• Docket Number: No. 2003-CA-01394-COA.,2003-CA-01394-COA.
• Citation: 906 So.2d 879
• Parties: James Delbert BROCK, Appellant v. Robin Sue BROCK, Appellee.
• Court: Mississippi Court of Appeals

906 So.2d 879

James Delbert BROCK, Appellant v. Robin Sue BROCK, Appellee.

No. 2003-CA-01394-COA.

Court of Appeals of Mississippi.

April 5, 2005.

Rehearing Denied June 14, 2005.

Jak McGee Smith, Tupelo, attorney for appellant.

C. Michael Malski, Tupelo, attorney for appellee.

Before LEE, P.J., MYERS and CHANDLER, JJ.

CHANDLER, J., for the Court.

¶ 1. The Itawamba County Chancery Court granted a divorce to J.D. and Robin Brock. During the marriage, J.D. moved his family seven times in the eleven years the parties lived together. J.D. is a football coach, and Robin is a teacher. During the last year the parties lived together, Robin had an affair, and when J.D. became suspicious of her affair, he kept records of the time Robin was away from home and kept records of the parental responsibilities each party shared.

¶ 2. The parties jointly owned a number of parcels of real property. In 1992, Robin's father deeded a house to Robin in her name alone, and he retained a life estate. J.D. and Robin lived in this house for a total of approximately two years during the marriage, and Robin returned to this house after the parties separated.

¶ 3. After the chancellor applied the factors identified in Albright v. Albright, she awarded custody of the children to Robin. She also determined that the home currently occupied by Robin was her separate property. J.D. appeals, raising the following issues:

I. WHETHER THE CHANCELLOR ABUSED HER DISCRETION IN AWARDING CUSTODY TO ROBIN

II. WHETHER THE CHANCELLOR ERRED IN FINDING THAT ROBIN WAS ENTITLED TO THE HOUSE

¶ 4. Finding no error, we affirm.

FACTS

¶ 5. James Delbert (J.D.) and Robin Sue Brock were married on August 26, 1989. After they were married, they both worked in the Nettleton School District. J.D. was employed as an assistant football coach, and Robin was employed as a teacher's assistant. J.D. continued to work in the Nettleton School District during the 1990-1991 school year, while Robin changed jobs and worked at Montessori School in Tupelo.

¶ 6. In 1991, J.D. and Robin moved to Montgomery County, Mississippi, where J.D. accepted a head coaching job at Kilmichael High School. They were at Kilmichael for less than a month when J.D. decided to accept a head coaching job at East Webster High School, because they wanted to return to Robin's home county of Webster. During this period, J.D. and Robin were living in a home on South Dunn Street, in a house Robin's father owned. On February 26, 1992, Robin's father deeded the property to Robin in her name alone, but he retained a life estate in the house.

¶ 7. J.D.'s and Robin's first child, Tyler, was born on October 15, 1992. J.D. resigned from his job at East Webster in November, at the end of the football season, but he finished his contract for the 1992-1993 school year. In 1993, the family moved to Batesville, where J.D. and Robin were both employed with the South Panola School District. On December 6, 1993, Robin's father deeded the house and lot on South Dunn Street to both J.D. and Robin, but this deed had a limited effect because Robin's father had already conveyed the majority of his interest in the land.

¶ 8. J.D. and Robin moved from Panola County to Philadelphia, Mississippi, after the 1993-1994 school year. In August of 1994, J.D. and Robin started the first of three school years with the Neshoba County School District. Their second son, Dallas, was born on October 9, 1995.

¶ 9. In March of 1996, J.D., Robin, and their two children moved from Philadelphia to Eupora and returned to the home on South Dunn Street. Their last child, Victoria, was born on July 2, 1997. Robin did not work during the 1997-1998 school year and primarily took care of the children.

¶ 10. In August of 1999, the Brock family moved from Eupora to Itawamba County. In February, 2000, Robin started having an affair. She also started having cheerleader practice in May of 2000 which further kept her away from home during the evening hours. J.D. was suspicious of Robin's behavior and started keeping a diary of the times Robin was away from home. Beginning in February of 2000, J.D. prepared a chart to show the number of hours Robin was away from home while J.D. took care of the children.

¶ 11. J.D. filed for divorce on January 3, 2001. Robin moved her mother into the former marital home in Itawamba County. Also in this month, Robin started taking the children to Eupora on the weekends. In April, J.D. learned that Robin was moving to Eupora. The next month, Robin took the children and moved, returning to the home on South Dunn Street.

¶ 12. In September of 2001, the parties entered a temporary order allowing Robin to keep the minor children in Eupora on a temporary basis. It was agreed in the order that the temporary arrangement would not be held against J.D. when the custody matter was heard on its merits.

¶ 13. The chancellor granted custody of the parties' three minor children to Robin. The chancellor concluded that Robin was the better choice with regard to the children's continuity of care, Robin's willingness and capacity to provide primary child care, the employment and employment responsibilities of the parents, and the home, school, and community record of the children. The moral fitness of the parties favored J.D. Robin was awarded custody, and J.D. was granted generous visitation rights.

¶ 14. With regard to the property of the parties, the chancellor distributed the property based on the factors set out in Hemsley v. Hemsley, 639 So.2d 909, 915 (Miss.1994) and Ferguson v. Ferguson, 639 So.2d 921, 928 (Miss.1994). She allowed each party to retain the personal property in their respective names or possession and allowed each party to retain their own retirement plans. The chancellor found that the home currently occupied by Robin on South Dunn Street was her separate property, except for J.D.'s one-half interest in Robin's father's life estate. The chancellor found that Robin's father's intent to transfer the house and land to both parties was invalid. The chancellor balanced Robin's award of the house by ordering Robin to convey a three-acre parcel of land in Mathiston, which the parties jointly owned, to J.D. The chancellor further ordered the sale of the parties' thirty-three acre tract of land, with the proceeds to be divided equally between the parties.

ANALYSIS

I. WHETHER THE CHANCELLOR ERRED IN GRANTING CUSTODY TO ROBIN

¶ 15. In 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). In order to arrive at a custody arrangement that is in the child's best interest, the chancellor must make specific findings on each of the factors listed in Albright: (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 parent 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 the 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. Id.

¶ 16. In determining whether the chancellor abused his discretion in applying the Albright factors, an appellate court must review the evidence and testimony presented at trial under each factor to insure the ruling was supported by the record. Watts v. Watts, 854 So.2d 11, 13(¶ 5) (Miss.Ct.App.2003). Our review of the chancellor's findings is limited. This Court may reverse only if the chancellor was manifestly wrong, clearly erroneous, abused his discretion, or made findings that were unsupported by the record. Hollon v. Hollon, 784 So.2d 943, 947(¶ 13) (Miss.2001).

Age, health and sex of the child

¶ 17. The chancellor found that there were three children, Tyler, a male, ten years of age at the time of trial; Dallas, a male, seven years of age; and Victoria, a female, five years of age. The chancellor found that all three children were in good health and that this factor favored neither parent. J.D. agrees that the record supports this conclusion.

Continuity of care

¶ 18. The chancellor weighed the continuity of care factor in favor of Robin. J.D. argues that this factor should have been weighed in his favor.

¶ 19. Robin moved to Eupora in May of 2001 with the children, and the chancellor noted that the children had remained with her since that time. J.D. claims error because the temporary custody order held that the agreement would not be held against J.D. when the matter was heard on its merits. J.D. argues that the chancellor should have only examined which parent had the greater continuity of care prior to the separation.

¶ 20. J.D. kept a diary of the time Robin was away from home when he suspected she was having an affair. He introduced these findings as a trial exhibit, and he further color-coded this document to show the amount of time that he spent with the minor children versus the amount of time that Robin spent with the minor children in the year prior to the separation. This exhibit showed the exact times J.D. was home, and Robin was absent, for each evening in the year 2000. At trial, Robin could not point to one incorrect fact in this exhibit. J.D. used Robin's cell phone records to prepare his exhibit. J.D. was able to be precise in determining the times that Robin was away from home because Robin had to be away from the marital home when she used her cell phone because her cell phone had no reception at the marital home. By taking the cell phone records and cross-referencing the records in his notes, J.D. was able to...