Gutierrez v. Bucci, 2000-CA-01142-COA.

• Decision Date: 24 September 2002
• Docket Number: No. 2000-CA-01142-COA.,2000-CA-01142-COA.
• Citation: 827 So.2d 27
• Parties: Yolanda A. GUTIERREZ, Appellant, v. Richard A. BUCCI, Appellee.
• Court: Mississippi Court of Appeals

827 So.2d 27

Yolanda A. GUTIERREZ, Appellant, v. Richard A. BUCCI, Appellee.

No. 2000-CA-01142-COA.

Court of Appeals of Mississippi.

September 24, 2002.

William Lee Guice III, Maria M. Cobb, Biloxi, attorneys for appellant.

Earl L. Denham, Wendy C. Hollingsworth, Ocean Springs, attorneys for appellee.

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

SOUTHWICK, P.J., for the court.

¶ 1. Dr. Richard Bucci was granted a divorce from Dr. Yolanda A. Guiterrez on the ground of adultery. Physical custody of the couple's two daughters was awarded to Dr. Bucci. Dr. Guiterrez appeals arguing that the chancellor erred as to custody and in classifying certain assets as being the separate property of Dr. Bucci. We find no reversible error and affirm.

STATEMENT OF FACTS

¶ 2. Richard Bucci and Yolanda Guiterrez were married in May 1987 in Mobile, Alabama. At first, the couple resided in New Orleans. Dr. Gutierrez had immigrated to the United States from her native Nicaragua in 1982. She received a medical degree from a university in Nicaragua before arriving in the United States. However, Dr. Gutierrez was unable to obtain a medical license in Louisiana. When the couple married, she was working as a medical assistant. Dr. Bucci had been a staff physician for eight years at Oschner Clinic in New Orleans and had also become a partner.

¶ 3. Dr. Bucci hired an attorney to facilitate his wife's obtaining of a Louisiana medical license. This was unsuccessful. The couple relocated to Mobile, Alabama in 1988 so that Dr. Gutierrez might obtain her medical license and begin a medical residency at the University of South Alabama. Dr. Gutierrez arrived in Mobile in July 1988. The next month, the couple's first child, Johana, was born. A few months later, Dr. Bucci left Oschner and relinquished his partnership interest. After moving to Mobile, Dr. Bucci was employed full-time at Providence Hospital in Mobile and part-time at Singing River Hospital Systems in Pascagoula, Mississippi. In 1989, Dr. Bucci began full-time employment as an emergency room doctor at Singing River.

¶ 4. Dr. Gutierrez completed her residency in 1991. The couple then moved to Pascagoula in 1992. The couple's second child, Carolina, was born in February 1993. In June 1996, Dr. Gutierrez began working full-time at a children's clinic in Pascagoula.

¶ 5. In either December 1995 or January 1996, Dr. Gutierrez met Keith Cooper at a video store. Sometime thereafter, they began having an affair. Dr. Gutierrez took Cooper on a trip to California in the spring of 1997. Dr. Gutierrez asserted that the affair ended later that year.

¶ 6. At some point, Dr. Bucci discovered the affair. He filed for divorce on the ground of adultery on October 24, 1997. Dr. Gutierrez counterclaimed and alleged habitual cruel and inhuman treatment or alternatively sought a divorce based on irreconcilable differences. Under a temporary court order, custody of the two children alternated between the parents each week. The children remained in the marital home and each parent moved in and out as custody changed.

¶ 7. After two hearings in January and May 1998, Dr. Gutierrez was found in contempt of court. The first hearing concerned Dr. Gutierrez's violation of the temporary custody order. Dr. Gutierrez often returned the children to Dr. Bucci after the time designated by the court. She also did not vacate the marital residence when Dr. Bucci was to have the children. The second hearing dealt with Dr. Gutierrez's refusal to provide Dr. Bucci with access to a second home that she had purchased at about the time of the filing of the divorce. The court required Dr. Gutierrez to provide Dr. Bucci with a key to the new home. Dr. Gutierrez also placed a lock on the door to the master bedroom.

¶ 8. Hearings concerning the divorce were held between June 1998 and May 1999. Numerous witnesses were called by both parties. More than eighty exhibits were entered into evidence.

¶ 9. Judgment was entered on December 1, 1999. Dr. Bucci was granted a divorce on the ground of adultery. He was awarded primary physical custody of the children, and Dr. Gutierrez was allowed visitation. Dr. Gutierrez was ordered to pay child support.

¶ 10. Dr. Gutierrez filed a motion to require the chancellor to issue findings of fact and conclusions of law to support his judgment. On June 30, 2000, the chancellor issued his sixty-six page findings of fact and conclusions of law. Dr. Gutierrez's notice of appeal was filed shortly thereafter.

DISCUSSION

¶ 11. Dr. Gutierrez asserts on appeal that the chancellor erred in granting Dr. Bucci physical custody of the children, erred by not ordering Dr. Bucci to pay child support, and erred in classifying certain properties as being Dr. Bucci's separate property. Because we uphold the decision to award custody to the father, we do not discuss the issue of whether the father should pay child support had we reversed that custody determination.

1. Custody

¶ 12. In matters of child custody, this Court employs a limited standard of review. Which parent should be awarded primary custody is determined by reference to identified factors. Lee v. Lee, 798 So.2d 1284, 1288 (Miss.2001). The decision of the chancellor as to the placement of the child will only be reversed if manifestly wrong, clearly erroneous, or arrived at by application of an erroneous legal standard. Williams v. Williams, 656 So.2d 325, 330 (Miss.1995).

¶ 13. There is at least one circumstance where this Court does not accord the chancellor the usual level of deference. "Where the chancellor adopts, verbatim, findings of fact and conclusions of law prepared by a party to the litigation, this Court analyzes such findings with greater care and the evidence is subjected to heightened scrutiny." Brooks v. Brooks, 652 So.2d 1113, 1118 (Miss.1995). Dr. Gutierrez asserts in her brief that the chancellor adopted the "factually inaccurate proposed findings of fact and conclusions of law submitted ..." by her now exhusband's attorney. It is true that the chancellor invited proposed findings of fact and conclusions of law from both parties. However, the proposals were not made part of the appellate record. We have no meaningful way to evaluate Dr. Gutierrez's assertion. Thus, we will grant the chancellor's findings the usual level of deference.

¶ 14. We examine the challenges made by Dr. Gutierrez to the chancellor's findings.

a. Age, Health, and Sex of the Children

¶ 15. The chancellor found this factor to weigh slightly in favor of Dr. Gutierrez. At the conclusion of the hearings, Johana was ten years old; Carolina was six years old. The chancellor found that since both children were in excellent health, that health did not affect custody. The chancellor found that as both children were girls, this favored custody by their mother. The chancellor also found that the children were not of tender age and related well to both parents.

¶ 16. Dr. Gutierrez asserts that the children were of tender age and that the "tender years" doctrine presumes that she as the mother is better suited to raise two young girls. That doctrine holds that "`[i]n all cases where any child is of such tender age as to require the mother's care for its physical welfare it should be awarded to her custody, at least until it reaches that age and maturity where it can be equally well cared for by other persons.'" Law v. Page, 618 So.2d 96, 101 (Miss.1993).

¶ 17. An older decision stated that "this Court has continuously held that if the mother of a child of tender years— especially a female—is so fit, then she should have custody." Buntyn v. Smallwood, 412 So.2d 236, 238 (Miss.1982). Later, though, the Supreme Court held that the tender years doctrine only created a rebuttable presumption. Albright v. Albright, 437 So.2d 1003, 1005 (Miss.1983). Even if the children are of the age to which the tender years doctrine might apply, the doctrine "is but one factor out of many to be considered in a child custody case." Blevins v. Bardwell, 784 So.2d 166, 173 (Miss.2001). Children who are seven years or older are "long past the age prior to which it requires attention of such character from the mother." Torrence v. Moore, 455 So.2d 778, 780 (Miss.1984).

¶ 18. The chancellor's evaluation of this factor was not clearly erroneous.

b. Continuity of Care Prior to Separation

¶ 19. The chancellor found that this factor favored Dr. Bucci. The chancellor stated that "[w]hether or not it was the case earlier during the marriage, the evidence clearly establishes [Dr. Bucci] had provided continuity of care of the minor children prior to the separation of the parties for a significant period of time and was the primary caregiver at the time the parties separated." Dr. Gutierrez's argues the evidence was not so clear. She had testified that she was the primary caregiver and that Dr. Bucci was "never around and generally had no time to spend with the family."

¶ 20. Evidence came in part from a witness whose testimony Dr. Gutierrez complains should not have been given much weight. Amada Ecury was employed as a nanny for the children from March to August 1997. What weight and credibility to be given her evidence is for the chancellor, not for an appeals court. Rogers v. Morin, 791 So.2d 815, 826 (Miss. 2001). Because of the long hours worked by both parents, the couple employed several nannies during their marriage. Dr. Gutierrez argues that had either parent been able to spend much time with the children, no nanny would have been needed. From this observation, Dr. Gutierrez appears to argue that neither she nor Dr. Bucci could be considered the primary caregiver; the nanny was. However, what is being compared is the care provided by the parents. That a third party, whether a nanny or a day care center, was also involved does not obliterate the need to make this comparison between the parents. It is possible that in some marriages neither parent provides relevant care....