Collins v. Collins, No. 2011–CA–01307–COA.

• Court: Mississippi Court of Appeals
• Citation: 98 So.3d 506
• Docket Number: No. 2011–CA–01307–COA.
• Parties: Kimberly Anne COLLINS, Appellant v. Robert Jarrad COLLINS, Appellee.
• Decision Date: 02 October 2012

98 So.3d 506

Kimberly Anne COLLINS, Appellant
v.
Robert Jarrad COLLINS, Appellee.

No. 2011–CA–01307–COA.

Court of Appeals of Mississippi.

Oct. 2, 2012.

Marty Craig Robertson, Jeremy Paul McNinch, Matthew Stanley Easterling, attorneys for appellant.

Will R. Ford, New Albany, attorney for appellee.

[98 So.3d 507]

Before LEE, C.J., MAXWELL and RUSSELL, JJ.

RUSSELL, J., for the Court:

¶ 1. Robert Jarrad Collins (Jarrad) was granted a divorce based on adultery from Kimberly Ann Collins (Kim) in the Chancery Court of Lee County, Mississippi. Primary physical custody of their son, Robert Connor Collins (Connor), was granted to Jarrad.

¶ 2. The issue on appeal is whether the chancery court erred in placing undue weight on the moral fitness of Kim. According to Kim, she should be granted sole physical custody or the parties should have been awarded joint physical custody. She argues the case should be remanded with instructions regarding the custody and visitation schedule.

¶ 3. Finding no error, we affirm the decision of the chancery court to grant primary physical custody of Connor to Jarrad.

FACTS AND PROCEDURAL HISTORY

¶ 4. Kim and Jarrad were married on June 9, 2001. Connor was born on February 26, 2006. Kim and Jarrad separated in June 2010. Kim filed a divorce complaint on June 7, 2010, alleging that she should be granted a divorce on the grounds of habitual cruel and inhuman treatment or, alternatively, irreconcilable differences. Jarrad filed an answer and counter-complaint, alleging that he was entitled to a divorce on the grounds of adultery, habitual cruel and inhuman treatment, and irreconcilable differences as an alternate ground.

¶ 5. The Chancery Court of Lee County tried this case on September 29, 2010, and December 8, 2010. The court entered its memorandum opinion and judgment on March 22, 2011, granting Jarrad a divorce from Kim on the ground of adultery and dividing the property. The Court granted the parties joint legal custody, with primary physical custody to Jarrad. Custody is the only issue on appeal.

¶ 6. Additional facts will be discussed as they relate to the issue raised.

DISCUSSION

¶ 7. “As this Court has stated on numerous occasions, absent an abuse of discretion, we will uphold the decision of the chancellor.” Brekeen v. Brekeen, 880 So.2d 280, 283 (¶ 4) (Miss.2004). “This Court will not disturb the factual findings of the chancellor unless [they] are manifestly wrong or clearly erroneous.” Id. (quoting Jerome v. Stroud, 689 So.2d 755, 757 (Miss.1997)). “However, where the chancellor improperly considers and applies the Albright factors, an appellate court is obliged to find the chancellor in error.” Id. (quoting Hollon v. Hollon, 784 So.2d 943, 946 (¶ 11) (Miss.2001)). See Albright v. Albright, 437 So.2d 1003, 1005 (Miss.1983).

¶ 8. Mississippi case law has clearly declared time and time again that the polestar consideration in all cases dealing with child custody and visitation is the best interest and welfare of the child. Crider v. Crider, 904 So.2d 142, 144 (¶ 6) (Miss.2005); Brekeen v. Brekeen, 880 So.2d 280, 283 (¶ 5) (Miss.2004); Woodell v. Parker, 860 So.2d 781, 788 (¶ 28) (Miss.2003); Sellers v. Sellers, 638 So.2d 481, 485 (Miss.1994); Moak v. Moak, 631 So.2d 196, 198 (Miss.1994); Albright, 437 So.2d at 1005. Additionally, the Legislature has determined: “Custody shall be awarded as follows according to the best interests of the child: ...” Miss.Code Ann. § 93–5–24(1) (Rev.2004) (emphasis added).

[98 So.3d 508]

¶ 9. In Albright, 437 So.2d at 1005, the Mississippi Supreme Court outlined the factors to be considered in child custody:

The age of the child ... is but one factor to be considered. Age should carry no greater weight than other factors to be considered, such as: health, and sex of the child; a determination of the parent that has had the continuity of care prior to the separation; which has the best parenting skills and which has the willingness and capacity to provide primary child care; the employment of the parent and responsibilities of...