Divers v. Divers

• Decision Date: 18 March 2003
• Docket Number: No. 2001-CA-01358-COA.,2001-CA-01358-COA.
• Citation: 856 So.2d 370
• Parties: Kevin DIVERS, Appellant, v. Jennifer DIVERS, Appellee.
• Court: Mississippi Court of Appeals

856 So.2d 370

Kevin DIVERS, Appellant, v. Jennifer DIVERS, Appellee.

No. 2001-CA-01358-COA.

Court of Appeals of Mississippi.

March 18, 2003.

Rehearing Denied August 19, 2003.

Certiorari Denied November 6, 2003.

Carrie A. Jourdan, Columbus, attorney for appellant.

Thomas G. Wallace, Columbus, attorney for appellee.

Before SOUTHWICK, P.J., BRIDGES and MYERS, JJ.

MYERS, J., for the court.

¶ 1. Kevin Divers filed for divorce from his wife Jennifer Divers in the Lowndes County Chancery Court. The divorce was granted with Jennifer being awarded custody of Zachary Divers, their son, and child support. Kevin appeals asserting as his only issue:

1. WHETHER CERTAIN FINDINGS OF FACTS BY THE CHANCERY COURT WERE CLEARLY ERRONEOUS AND WHETHER ITS APPLICATION OF THE ALBRIGHT FACTORS TO THE FACTS OF THE CASE WERE ALSO CLEARLY ERRONEOUS.

STATEMENT OF FACTS

¶ 2. Early in 2000, Kevin filed for divorce from Jennifer on the grounds of insanity, habitual and cruel and inhuman treatment, or alternatively, irreconcilable differences. The parties consented to an irreconcilable differences divorce with submission to the chancellor of the issues of custody and support. No testimony or evidence was presented at the trial level as to Kevin being morally, physically, or mentally unfit as a parent. The crux of the appeal turns primarily upon Jennifer being awarded custody despite her mental disorders.

¶ 3. Jennifer suffers from borderline personality disorder (BPS), which requires doses of anti-depression medication and mood stabilizers. Originally, Jennifer had been diagnosed with bipolar disorder, but that was later retracted and changed to the BPS. Jennifer attempted suicide on September 16, 1999, by making small cuts and scratches on her wrists with a razor blade. This attempt resulted in her hospitalization for several days in a hospital mental health care ward. In October 1999, Jennifer was taken to an emergency room to have her stomach pumped after intentionally overdosing on prescription medication. Jennifer obtained counseling prior to and after the suicide attempts. Kevin also attended some joint sessions in an effort to help alleviate Jennifer's mental problems. Testimony was presented that no real progress had been made in resolving Jennifer's mental problems although some stability had been restored. Testimony presented at trial also indicated that Jennifer's mental problems could worsen under the stress associated with taking care of Zachary.

¶ 4. Kevin and Jennifer met while he was a cadet at the Air Force Academy and she was an airman in Colorado Springs, Colorado. The two began dating secretly in violation of the Air Force's anti-fraternization rule. The liaison culminated in Jennifer becoming pregnant. Jennifer was given the option, by the Air Force, of leaving the military or stop seeing Kevin. She chose the former.

¶ 5. After Jennifer left the military, she lived with Kevin's parents in El Paso, Texas from November 1997 through August 1998 while Kevin finished his cadet training. Zachary was born on April 24, 1998. Kevin and Jennifer were married after his cadet graduation on May 27, 1998.

¶ 6. Kevin, Jennifer, and Zachary lived with his parents from late May 1998 through early July 1998. Kevin was then required to attend a seven week military education program in which Jennifer and Zachary continued to live with Kevin's parents while Kevin lived away at the school. The three reunited and lived in England from late August 1998 through mid July 1999. In July 1999, Jennifer and Zachary returned to El Paso and lived with Kevin's parents until Kevin's assignment in England ended the next month. From August 25, 1999, until their separation on February 21, 2000, Jennifer and Kevin resided at Columbus Air Force Base.

¶ 7. Zachary, on the other hand, lived with Kevin's parents from October 1999 through December 1999. In late December, Zachary was returned to his parents. It also appears that Zachary returned to his grandparents in January 2000 for a time. As a result of a May 2000 hearing, temporary custody of Zachary was awarded to Kevin's parents who were then residing in Lake Charles, Louisiana. The award was based upon Kevin's schedule and Jennifer's mental condition.

¶ 8. After their separation, Kevin voluntarily gave Jennifer temporary support, paid her apartment rent and deposit from April 2000 through October 2000. At the time of trial, Kevin had received orders transferring him from Columbus Air Force Base, Mississippi to Edwards Air Force Base, California. He was expected to leave for Edwards in February 2001 to serve as a behavioral scientist. His assignment was a non-deployment role. Jennifer, at the time of trial, was a computer technician for the Mississippi School for Math and Science and was contemplating a return to school.

LEGAL ANALYSIS

¶ 9. When this Court reviews the decision of a chancellor relative to child custody we will not disturb that decision unless the chancellor was manifestly wrong, clearly erroneous, or applied an erroneous legal standard. Williams v. Williams, 656 So.2d 325, 330 (Miss.1995); Limbaugh v. Limbaugh, 749 So.2d 1244, 1246(¶9) (Miss Ct.App.1999). It is for the chancellor to determine the credibility and weight of the evidence. Chamblee v. Chamblee, 637 So.2d 850, 860 (Miss.1994).

¶ 10. The polestar consideration in a child custody case is the best interest and welfare of the child. Sellers v. Sellers, 638 So.2d 481, 485 (Miss.1994); Albright v. Albright, 437 So.2d 1003, 1005 (Miss.1983). The Supreme Court has identified factors that are to be considered in custody decisions:

(1) age, health, and sex of the child;

(2) a determination of the parent that has 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 other factors relevant to the parent-child relationship.

Albright, 437 So.2d at 1005.

¶ 11. In the difficult matter of determining child custody in divorce proceedings, the chancellor is necessarily vested with substantial discretion. Shepherd v. Shepherd, 769 So.2d 242, 245 (¶11) (Miss.Ct.App.2000). In Hamilton v. Hamilton, this Court reviewed the record in that case and found that the chancellor should consider each Albright factor specifically in her decision for child custody. Id at (¶ 10). See also Hayes v. Rounds, 658 So.2d 863, 865 (Miss.1995)

. We found that it is not enough for the chancellor to simply state that she considered these factors. Hamilton, 755 So.2d at 530-31; Hayes, 658 So.2d at 865. If substantial evidence exists to support the chancellor's finding of fact, broad discretion is afforded her determination. McEwen v. McEwen, 631 So.2d 821, 823 (Miss.1994).

¶ 12. While there was evidence that could be construed to support an affirmation of the chancellor's findings, we think that there was not substantial evidence to support the chancellor's decision to grant custody of Zachary to Jennifer. Accordingly, we reverse the decision and render it based upon the following analysis of the Albright factors.

Age, health, and sex of the child

¶ 13. Although the chancellor discusses the tendency of courts to historically grant custody of children to the mother based upon the tender age doctrine and the recently weakened aforementioned doctrine, she found that this factor did not favor Kevin or Jennifer. Neither party argues that this was a mistake. We pause only to mention that the tender age doctrine has been incorporated into the Albright factors.

Continuity of care prior to the separation

¶ 14. The chancellor found that this factor favored Jennifer over Kevin. The chancellor considered Jennifer a stay at home mother even though the chancellor acknowledged that the child had spent a significant portion of his life with Kevin's parents, including the entire year preceding the chancellor's order. The chancellor's finding was plainly wrong.

¶ 15. A review of the record indicates that except for eleven months when Jennifer and Zachary were with Kevin in England and a couple of months at the beginning of Kevin's assignment at Columbus Air Force Base, Kevin's parents had either been the primary caregivers of Zachary or greatly assisted Jennifer in caring for Zachary. The chancellor stated that because Kevin was in the military, Jennifer cared for the child more than the Kevin. The factor is the continuity of care prior to the separation, not who cared for the child more over the child's lifespan. If this factor was to favor anyone, it would favor Kevin's parents. Jennifer only cared for the child during her sporadic moments of lucidity. She did not provide continuous care for the child. Accordingly, we hold that while this factor does not favor Kevin over Jennifer, it can neither favor Jennifer over Kevin.

Best parenting skills and willingness and capacity to provide primary child care

¶ 16. The chancellor found and both sides agree that this factor neither favors nor hinders either party. We agree with the chancellor's finding of this factor.

Employment of the parent and responsibilities of that employment

¶ 17. The chancellor found that this factor favors Jennifer over Kevin. We disagree with her decision and her reasoning. The chancellor based her decision on the fact that daycare would be provided where Jennifer works and that no testimony was presented that daycare would be provided at Edwards Air Force Base. A review of Kevin's testimony reveals that he testified that Zachary could be enrolled in the base daycare once his...