Brumfield v. Brumfield
| Decision Date | 30 November 2010 |
| Docket Number | No. 2008-CA-01944-COA.,2008-CA-01944-COA. |
| Citation | 49 So.3d 138 |
| Parties | Heather M. BRUMFIELD, Appellant v. Alex Noah BRUMFIELD, Appellee. |
| Court | Mississippi Court of Appeals |
Edwin L. Bean, Jr., McComb, attorney for appellant.
Gary L. Honea, Magnolia, attorney for appellee.
EN BANC.
MYERS, P.J., for the Court:
¶ 1. Heather and Alex Brumfield were married in July 1998, and they separated in March 2007. The Walthall County Chancery Court granted an irreconcilable differences divorce on May 16, 2008. Heather appeals the chancellor's award of physical custody of the couple's four children to Alex, with both parents to share legal custody.
¶ 2. Alex and Heather have four children-three daughters and one son. The oldest, Debra Alexis ("Lexi") was born about six months prior to the marriage. The youngest, Hali, was born on October 20, 2002. It was noted that the children were generally healthy and doing well in school. At the time of the divorce trial in late 2007 and early 2008, Alex was thirty years of age, and Heather was twenty-nine.
¶ 3. Throughout the marriage, Alex worked full time. He had a two-year degree in diesel mechanics, and since 2001 Alex worked as a bus mechanic for the South Pike School District in McComb, Mississippi. In addition to his regular employment, during the marriage Alex also completed the construction of the marital home,1 worked a small farm, rebuilt farm equipment, and engaged in other productive activities. Heather went to school, worked various jobs, and was indisputably the children's primary caregiver early in the marriage. Despite her work and familial obligations, Heather maintained a high grade-point average in school. She graduated in 2004 from William Carey University with a degree in elementary education. Heather then taught special education at Tylertown Elementary before transferring to Salem Elementary, where her children were enrolled, in 2006.
¶ 4. It is unclear what immediately caused the final separation, but Heather left the marital home for good in March 2007. From the testimony at trial, it appears that the couple had frequently engaged in loud, angry arguments. During one such argument in September 2005, Alex pinned Heather against a wall, threw her to the ground, and hit her twice with a belt, resulting in his prosecution for simple assault.2 Shortly after that incident, Heather filed for divorce, but the parties apparently reconciled, and the divorce was not pursued. After the final separation in March 2007, Heather moved into a house owned by her grandmother. A temporary order provided for joint custody of the children, with Heather having physical custody most of the time. Alex was ordered to pay $400 per month in temporary child support.
¶ 5. Heather filed an amended complaint for divorce on May 9, 2007, alleging grounds of habitual cruel and inhuman treatment and habitual drunkenness. Alex counterclaimed for divorce, alleging adultery. In the alternative, both parties also sought an irreconcilable differences divorce, to which they ultimately agreed. Alex and Heather submitted the issues of property division and child custody to the chancellor.
¶ 6. The divorce trial could not be completed on the first day, so it was spread over two days. The first was on November 1, 2007, the second on February 28, 2008, and the final judgment of divorce was entered on May 16, 2008. The chancellor awarded custody of the children to Alex and ordered Heather to pay child support.
¶ 7. After Heather appealed on the custody issue, this Court remanded the case to the chancellor for more detailed findings of fact on the Albright factors. See Albright v. Albright, 437 So.2d 1003, 1005 (Miss.1983). On our own motion, we also asked the chancellor to determine whether the statutory presumption against granting custody to a parent with a "history of family violence" should have been enforcedagainst Alex. See Miss.Code Ann. § 93-5-24(9)(a)(i) (Rev.2004). The parties were instructed to offer additional briefing to address the chancellor's supplemental findings.
¶ 8. On remand, the chancellor expanded on her original findings, specifically addressing each of the Albright factors. She reaffirmed her prior conclusion that it was in the children's best interest to be placed in Alex's custody. The chancellor also expressly found that the violent incident was isolated and that Alex did not have a history of perpetuating family violence, as defined by the statute. She found no presumption against granting Alex custody of the children. If this presumption had existed, the chancellor found it had been rebutted. Heather contends that the chancellor erred in applying the Albright factors and in not enforcing the statutory presumption.
¶ 9. Sanderson v. Sanderson, 824 So.2d 623, 625-26 (¶ 8) (Miss.2002) (citations omitted). Furthermore, we Mosley v. Mosley, 784 So.2d 901, 905-06 (¶ 15) (Miss.2001) (quoting Yates v. Yates, 284 So.2d 46, 47 (Miss.1973)).
¶ 10. In her findings of fact on remand, the chancellor found that Alex did not have a history of perpetuating family violence, as defined by the statute. Heather argues that this finding was erroneous.
¶ 11. Mississippi Code Annotated section 93-5-24(9)(a)(i) (Rev.2004) states in pertinent part that:
In every proceeding where the custody of a child is in dispute, there shall be a rebuttable presumption that it is detrimental to the child and not in the best interest of the child to be placed in sole custody, joint legal custody or joint physical custody of a parent who has a history of perpetrating family violence.
The statute defines a history of perpetuating family violence as either a pattern of family violence against a member of the household or a single incident of family violence that results in serious bodily injury. Id.
¶ 12. Heather testified that the incident occurred on September 9, 2005. The Brumfields had been without electricity since Hurricane Katrina struck two weeks before. Heather took the children out and bought makeup for Alli, who had recently turned five years old, as a birthday present. Later that day, Alex threw the makeup away after he found it on the floor. Heather took it out of the garbage and gave it back to the children. The two began arguing and gave the children contradictory instructions. Alex ordered the children to throw the makeup away, while Heather told them to keep it. Alex retrieved a belt and threatened to discipline the children with it, but they did not obey him because, according to Heather's testimony, she was the one who usually spanked the children. Alex then grabbedHeather, dragged her outside, threw her to the ground, and hit her twice with the belt.
¶ 13. The chancellor found Heather's description of the September 2005 incident to be credible, but she concluded that it was an isolated incident insufficient to trigger the presumption. The chancellor noted that there was no testimony that Alex had hit Heather on any other occasion and that there was no suggestion that he had ever abused the children. We agree that the record establishes only a single incident of domestic violence.
¶ 14. The dissent suggests that a pattern of family violence could be found based on a document found in the record as an exhibit, a "sentencing order" from the Walthall County Justice Court. It indicates that after the separation, misdemeanor charges of "stalking" and "telephone harassment" had been brought against Alex (presumably by Heather, but the document itself does not say). Although styled a sentencing order, the document actually states that the charges were remanded to the file, with "recommendations" regarding child custody transfers and telephone contact.
¶ 15. A photocopy of the sentencing order is found in the record as an exhibit, but it does not appear to have been entered into evidence at trial, and there was no testimony authenticating it or otherwise establishing a foundation for its admission into evidence. Heather never mentioned bringing these charges against Alex in her testimony at trial. In fact, despite offering the sentencing order as an exhibit, Heather never mentioned the charges in her arguments before the chancery court or in her briefs before this Court. At trial, Heather did testify that, after the separation, someone had beaten on her door and shined a flashlight into the windows of her home on "several occasions," but she admitted that she "wasn't sure" it had been Alex, apparently conceding that she had no evidence he was responsible. The sentencing order-assuming it had been entered into evidence-and this testimony do not establish a second incident of domestic violence.
¶ 16. According to the statute, a single incident of domestic violence does not establish a history of family violence unless it results in "serious bodily injury." Id. The only physical injuries Heather described as resulting from the incident were relatively minor-scratches to her face-and she was uncertain exactly how they had occurred.
¶ 17. The chancellor's findings with regard to the statutory presumption must stand unless she "was manifestly wrong, clearly erroneous, or applied an improper legal standard." J.P. v. S.V.B., 987 So.2d 975, 980 (¶ 12) (Miss.2008.) We can find no abuse of discretion in the chancellor's finding that the single incident did not result in ...
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