Hollon v. Hollon

• Decision Date: 03 May 2001
• Docket Number: No. 2000-CA-00141-SCT.,2000-CA-00141-SCT.
• Citation: 784 So.2d 943
• Parties: Dorothy Elizabeth HOLLON, v. Timothy P. HOLLON.
• Court: Mississippi Supreme Court

784 So.2d 943

Dorothy Elizabeth HOLLON, v. Timothy P. HOLLON.

No. 2000-CA-00141-SCT.

Supreme Court of Mississippi.

May 3, 2001.

Thomas L. Musselman, Biloxi, for Appellant.

David A. Roberts, Pascagoula, for Appellee.

Before PITTMAN, C.J., COBB and DIAZ, JJ.

DIAZ, Justice, for the Court:

¶ 1. This matter arises from a divorce action decided by the Chancery Court of Jackson County, wherein Timothy Paul Hollon (Tim) and Dorothy Elisabeth Hollon (Beth) were granted a divorce on the grounds of irreconcilable differences. The only disputed issues argued before the trial court involved child custody, child support, and the assessment of court costs. The trial began on July 19, 1999, when Tim presented his case-in-chief. Due to a clogged docket, the chancellor recessed court in the middle of the trial, with testimony resuming on August 24, 1999.

¶ 2. On December 20, 1999, a final judgment nunc pro tunc was entered granting Tim and Beth a divorce. The chancellor also granted Tim custody of Zach, but reserved visitation rights for Beth. The trial court further ordered Beth to pay approximately $200 a month for child support to Tim, and allowed Tim to claim Zach as a dependent on his federal and state income taxes. Beth appeals the chancellor's decision to award custody of their son to Tim, believing that the chancellor erred in the following ways:

I. THE CHANCELLOR'S FINDINGS OF FACT WERE NOT SUPPORTED BY SUBSTANTIAL EVIDENCE THAT PRIMARY CUSTODY BY TIMOTHY PAUL HOLLON WAS IN THE CHILD'S BEST INTEREST.

II. THE CHANCELLOR APPLIED AN ERRONEOUS LEGAL STANDARD WHEN HE CONSIDERED AN ALLEGED LESBIAN AFFAIR AS EVIDENCE OF DOROTHY ELISABETH HOLLON'S MORAL UNFITNESS.

FACTS

¶ 3. Tim and Beth were married on April 9, 1994, in Jackson, County, Mississippi. During the course of the marriage, Zachary Thomas Hollon was born on July, 16, 1996. In addition to Zach, Tyler Watson, Beth's child from a previous marriage lived with Tim and Beth. The family resided in Bonaparte Square Apartment complex in Pascagoula, where Beth served as the on-site manager. The apartment complex owners provided Beth and Tim with a rent-free apartment as part of her compensation package. Tim served the City of Moss Point as a police officer.

¶ 4. Soon after Zach's birth, Tim and Beth's marriage began to deteriorate. They separated in January of 1997, for approximately eight weeks. After reconciling, their marriage again drifted into troubled waters leading to a second separation on January 11, 1998. Tim moved out of the marital apartment and into his parents' home, leaving Zach and Tyler in Beth's care. In an effort to alleviate the financial strain placed upon her during her separation, Beth took in a roommate, Beth Dukes (Dukes). Prior to this arrangement, Bonaparte Square Apartment complex also provided Dukes, an officer with the Pascagoula Police department, with a rent-free apartment in exchange for her service as a "courtesy officer." Dukes performed minimal security duties and fulfilled much of her obligation to the owners by simply serving as a police officer while residing at the apartment complex. Dukes lived with her son, Seth Holder, a child from her previous marriage.

¶ 5. As roommates, Beth and Dukes split expenses, such as utilities and groceries. In addition, they each served as a baby sitter for the children when one was otherwise occupied. At the time, five people inhabited Beth's three-bedroom apartment; Beth and her two children, Tyler and Zach, as well as Dukes and her son Seth. Tyler, a teenager, was given his own bedroom, while Seth and Zach shared a bedroom as they were both under the age of five. Beth and Dukes shared the third bedroom.

¶ 6. At trial, Beth freely admitted that she and Dukes slept in the same bed. However, she vehemently denied any sexual relationship existed between her and Dukes, continually characterizing their relationship as platonic. Donna Mauldin, a friend of Beth's, testified that Beth told her that she and Dukes were engaged in a sexual relationship. Mauldin further testified that Beth wanted her to deny, if asked, that she ever admitted having a sexual relationship with Dukes. Mauldin refused to do so.

¶ 7. During the separation, while Beth and Dukes were sharing the apartment at Bonaparte Square, Tim heard the surfacing allegations surrounding Beth and Dukes' relationship. In order to investigate, Tim borrowed a key to the apartment, his former marital residence, from Donna Mauldin.¹ While Beth and Dukes were away, Tim and Calvin Hutchins entered the apartment without permission and made a photographic record of things Tim felt were "inappropriate." These photographs and rumors led him to become concerned with "the environment that [Zach] would be raised in." Among other things, Tim took photographs of Dukes' clothing and police equipment in the shared bedroom, beer bottles in the refrigerator and wastebasket, liquor bottles on the counter, and one red light bulb in a ceiling fixture. These photographs were admitted into evidence over Beth's objection.

¶ 8. Tim returned to the apartment a second time, again while Beth and Dukes were absent and without their consent, with his mother and Jim Mauldin to remove certain items he felt belonged to him, including furniture and a television set. Upon her return, Beth noticed several items missing and contacted the police to report a possible burglary. Due to the nature of the missing items, she suspected Tim was the culprit and filed charges against him which were later dismissed.

¶ 9. Tim and Beth each testified that the other was a good parent and had only Zach's best interests at heart. Both testified that their parents would serve as supplemental care givers to Zach when they were at work or unable to fulfill their parental obligations. Tim admitted that the only problem he had with Beth retaining permanent custody of Zach was his belief that she engaged in homosexual activity.

¶ 10. Tim lives with his parents in their four-bedroom house and pays them fifty dollars a month in rent. During the trial, Beth moved out of the apartment complex with her two children and into her parents' five-bedroom house. She initiated this move during the break in the trial because she felt the judge disapproved of her living situation. Beth's plan to reside with her parents is temporary. She and Tyler will move into a newly remodeled three bed-room house provided, in part, by her new job as the rental property manager for R.J. Homes. Beth no longer lives with Dukes and her son, although they remain friends.

STANDARD OF REVIEW

¶ 11. Our familiar standard holds that, absent an abuse of discretion, we will uphold the decision of the chancellor. To disturb the factual findings of the chancellor, this Court must determine that the factual findings are manifestly wrong, clearly erroneous or the chancellor abused his discretion. 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. Stroud, 689 So.2d at 757 (citing Smith v. Smith, 614 So.2d 394, 397 (Miss. 1993)).

LEGAL ANALYSIS

I. THE CHANCELLOR'S FINDINGS OF FACT WERE NOT SUPPORTED BY SUBSTANTIAL EVIDENCE THAT PRIMARY CUSTODY BY TIMOTHY PAUL HOLLON WAS IN THE CHILD'S BEST INTEREST.

¶ 12. The polestar consideration in child custody cases is the best interest and welfare of the child. Albright v. Albright, 437 So.2d 1003, 1005 (Miss.1983). The Albright factors used to determine what is, in fact, in the "best interests" of a child in regard to custody are as follows: 1) age, health and sex of the child; 2) determination of the parent that 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 11) other factors relevant to the parent-child relationship. Albright, 437 So.2d at 1005. It should further be noted that marital fault should not be used as a sanction in custody awards, nor should differences in religion, personal values and lifestyles be the sole basis for custody decisions. Id. at 1005.

¶ 13. In order to determine whether or not the chancellor was manifestly wrong, clearly erroneous or abused his discretion in applying the Albright factors, we review the evidence and testimony presented at trial under each factor to ensure his ruling was supported by record.

1) The age, health and sex of the child

¶ 14. Although this Court has weakened the "tender years" doctrine in recent years,² there is still a presumption that a mother is generally better suited to raise a young child. Sobieske v. Preslar, 755 So.2d 410, 413 (Miss.2000). Chancellor Watts began his analysis of the case with the statement that the child was barely three years old at the time the trial ended. He pointed out that the tender years doctrine had been weakened and found Zach to be a healthy male child, with no physical or mental impairments who could be cared for equally well by both parties. The chancellor did not explicitly say that this factor favored one party over another. This factor favors Beth because the legal presumption, although weakened, still favors the mother to raise a very small child.

2) The determination of which parent had continuous care of the child prior to the separation

¶ 15. Chancellor Watts was mindful of the fact that since the parties separated, the mother retained primary care of the child, with the father retaining visitation privileges. The chancellor failed...