Flowers v. Flowers

• Decision Date: 19 June 2012
• Docket Number: No. 2010–CA–01957–COA.,2010–CA–01957–COA.
• Citation: 90 So.3d 672
• Parties: Sharon Thompson FLOWERS, Appellant v. Allen FLOWERS, Appellee.
• Court: Mississippi Court of Appeals

90 So.3d 672

Sharon Thompson FLOWERS, Appellant

v.Allen FLOWERS, Appellee.

No. 2010–CA–01957–COA.

Court of Appeals of Mississippi.

June 19, 2012.

Oliver E. Diaz Jr., David Neil McCarty, attorneys for appellant.

Kate S. Eidt, attorney for appellee.

Before LEE, C.J., ISHEE and ROBERTS, JJ.

ISHEE, J., for the Court:

¶ 1. In September 2010, the Forrest County Chancery Court granted Sharon Thompson Flowers and Allen Flowers a divorce based on irreconcilable differences. The chancery court awarded the parties joint legal custody of the two minor children and awarded primary physical custody of the children to Allen, with Sharon receiving liberal visitation. Sharon now appeals, arguing the chancery court erred by awarding Allen primary physical custody of the children. Sharon asserts the chancery court: (1) improperly sanctioned Sharon for a post-separation liaison; (2) failed to properly analyze the age-and-health-of-the-child factor in its Albright¹ analysis; (3) failed to determine which parent had the best parenting skills and capacity to provide primary child care; (4) failed to properly consider the school record of the children; and (5) placed undue emphasis on a factor of its own creation. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. Sharon and Allen were married in 2004. They have two minor children together, Charlie and Joseph. At the time of the action, Charlie was ten years old and Joseph was six years old. On November 20, 2008, Allen filed a complaint for divorce on the grounds of adultery, desertion, and habitual cruel and inhuman treatment. He also sought a temporary restraining order (TRO) to prevent Sharon from taking the children to Texas, where her then-boyfriend was living. The petition for a TRO asserted that Sharon planned to take the children out of the state “for a sufficient amount of time to deprive [the chancery court] of jurisdiction over the children and extract a divorce from [Allen].” On November 21, 2008, the chancellor granted the petition for a TRO. The TRO was later dissolved, but the chancellor enjoined removal of the children from the jurisdiction without leave of court.

¶ 3. In a November 26, 2008 temporary order, the chancellor awarded the parties joint legal and physical custody of the minor children. The parties were to rotate custody on a weekly basis. Allen was ordered to pay child support to Sharon each month, the medical expenses for the minor children, and all reasonable expenses associated with the marital home. Because Allen was a practicing attorney in the Hattiesburg, Mississippi area, all of the local chancellors recused, and the Mississippi Supreme Court appointed the Honorable Larry Buffington to serve as chancellor in the case.

¶ 4. On May 6, 2009, the newly appointed chancellor issued a modified temporary order. The order lifted the prohibition on out-of-state travel but prevented the parties from “having the children in the presence of a boyfriend or girlfriend not related by blood or marriage[.]” It also required Allen to pay temporary alimony to Sharon. Finally, the order appointed a guardian ad litem (GAL) to represent the interests of the children.

¶ 5. On December 10, 2009, the parties filed a joint motion seeking a divorce based on irreconcilable differences. They requested that the chancery court determine all matters concerning the minor children. Accordingly, a trial was held to determine the proper custody arrangement.

¶ 6. On January 19, 2010, the trial began. A major issue in determining child custody involved which parent was the primary caregiver to the two minor children. During Sharon's testimony, she alleged that she was the primary caregiver. According to Sharon, there were many mornings where Allen would leave for work between five and six o'clock in the morning and not return until five or six o'clock in the evening; he worked at least one day on the weekend every week; and he worked at night while she prepared the children for bed. However, she acknowledged that they would alternate reading to the children every night.

¶ 7. Sharon further testified that she did all of the chores around the house including: washing dishes, grocery shopping, cooking, washing and ironing clothes, organizing the house, planning birthday parties, decorating for holidays, and cleaning the house. Sharon noted that she took the children to the doctor and maintained their health and medications. She also stated that she did all of the Christmas shopping and acted as “Santa Clause” and the “Tooth Fairy.” In addition, Sharon asserted that Allen did not care for the children when they were infants. She alleged that he did not feed the children, change their diapers, or wash their clothes. She also claimed he refused to allow the children to sleep in the same room as him when they were infants.

¶ 8. Allen's testimony at trial did not conform with Sharon's account of the child rearing. While Allen admitted that Sharon handled most of the child-rearing responsibilitieswhen the children were infants, he maintained that he has become more involved as the children have grown older. He testified that he handles ninety percent or more of the children's education and ninety-nine percent or more of the children's religious training. Allen also alleged that he is the primary disciplinarian. He testified that Sharon said: “You're going to have to discipline these boys. I can't do anything with them.” While Allen acknowledged that Sharon is more “fun” than he is, he maintained that he performs many of the day-to-day parenting requirements. According to Allen, before the separation, Sharon prepared most of the meals and bought most of the clothing; however, the cleaning was fairly evenly split between the two of them, and he did all of the yard work.

¶ 9. Furthermore, Allen claimed that when Charlie began having trouble reading, he addressed the issue. He alleged that Sharon “wasn't particularly interested in dealing with it.” According to Allen, testing revealed that Charlie has a phonemic awareness deficit, which he described as a problem where “letters don't mean anything to [Charlie].”

¶ 10. Testimony at trial established that in September 2008, Allen altered his work schedule to accommodate Charlie's needs. Allen began working from eight until four o'clock so that he could aid in Charlie's studies each day. Upon discovering Charlie's problems, Allen had Charlie tested by Deborah Thrash, a psychometrist, and arranged for Charlie to be tutored in the afternoons by his teacher, Elizabeth Ladnier. Allen also had Joseph tested by a school psychometrist, who determined that Joseph had attention-deficit issues. Allen testified that when he had custody, Charlie was being tutored every day, barring the occasional off-day. He claimed that Sharon took Charlie to tutoring consistently during the school year, but that she did not follow through in the summer.

¶ 11. A second issue at trial was Allen's use of multiple caregivers after the separation. Allen admitted receiving help with the children from multiple caregivers, including: Jerry Duckworth, Imogene Huffman, Sharon Hurley, Ladnier, and Allen's uncle, Don Hegwood.² Because of his use of multiple caregivers, Sharon alleged the children do not have any structure when they are with Allen. The GAL agreed with this sentiment by testifying: “[I]t is a concern of mine because it does go to the boys—there's a stability issue as far as who is going to be picking them up, who is going to be dropping them off.” She further stated “it would be better if he had one [caregiver].” Although the GAL recognized that only one caregiver should be used, she did not take this factor into consideration when assessing who should have primary physical custody.

¶ 12. Duckworth was the first caregiver introduced at trial. She testified that even before the separation, Allen asked her to be a “Christian role model” for the children. Subsequently, in 2007, Duckworth began to mentor the children by engaging in activities with them such as attending baseball games, going to the zoo, and visiting nursing homes. She asserted that Sharon was accepting of the relationship and that she and Sharon had become friends. Duckworth testified that from July 2008 through October 2008, a period of time before the separation, she was at the Flowerses' house three to four weekends a month. Since the separation, she has “been there to assist [Allen] with the children or watch them while he worked.” She also testified that in the past she has helped Allen purchase Christmas presents.

¶ 13. Huffman was the next caregiver to testify at trial. She stated she kept the children on various occasions both prior to and after the separation. According to her description of her role, there was no set routine for when she cared for the children, but she mostly watched the children when they were unable to attend school due to illness.

¶ 14. Ladnier also testified at trial. Sharon asserts Ladnier is one of the children's caregivers. However, Ladnier insisted that she is a tutor, which is quite different from a caregiver. She stated that she tutors Charlie on a consistent basis during the week. Ladnier did admit to taking Charlie to a restaurant and the movies as a reward for his hard work during tutoring.

¶ 15. A third issue at trial was Sharon's relationship with Chris Scharbano. Allen testified that during the marriage Sharon had an affair with Scharbano, which continued after their separation. He alleged Scharbano had problems with alcoholism, and Sharon referred to Scharbano as “my little drunk friend.” Sharon claimed the relationship was brief and that the children were never alone around Scharbano. In fact, according to Sharon, they had only been around him at one birthday party and one Christmas party. While the GAL stated that to her knowledge the affair had not adversely affected the children, Sharon had lied up until trial regarding the...