Jordan v. Jordan

• Decision Date: 14 August 2007
• Docket Number: No. 2005-CA-01834-COA.,2005-CA-01834-COA.
• Parties: Robin Chastity JORDAN, Appellant v. Howard Ray JORDAN, III, Appellee.
• Court: Mississippi Court of Appeals

963 So.2d 1235

Robin Chastity JORDAN, Appellant v. Howard Ray JORDAN, III, Appellee.

No. 2005-CA-01834-COA.

Court of Appeals of Mississippi.

August 14, 2007.

William R. Wright, Jackson, W. Benton Gregg, attorneys for appellant.

James R. Hayden, Hattiesburg, attorney for appellee.

Before LEE, P.J., BARNES and CARLTON, JJ.

BARNES, J., for the Court.

¶ 1. This case comes on appeal from the order of the Perry County Chancery Court, granting joint legal custody to Howard Ray Jordan (Ray) and Robin Chastity Jordan (Robin) of their three minor children, with sole physical custody to Ray, and denying Robin's claim of right to the marital home. After thorough review of the record, we affirm the judgment of the chancery court.

SUMMARY OF FACTS AND PROCEDURAL HISTORY

¶ 2. Howard Ray Jordan and Robin Chastity Jordan were married on September 17, 1994. During their first years of marriage, Ray and Robin lived in a mobile home on a tract of land that Ray's parents owned. Ray and Robin later began to build a home on the property with Ray's parents, Ray Sr. and Linda Jordan, providing funding to purchase the building materials for the house. On December 27, 2002, Ray's parents deeded the parcel of land to him via warranty deed. This deed was subject to a reversionary interest in the grantors (Ray's parents) should Ray ever convey the property, mortgage the property or grant a security interest through a deed of trust, or file, or have served upon him, a divorce proceeding. Ray and Robin lived together as husband and wife until June 11, 2004, when they separated. Ray and Robin have three children: Caden R. Jordan (Caden), born on September 12, 1995; Chastity Shae Jordan (Chastity), born on September 16, 1998; and Summer R. Jordan (Summer), born on June 7, 2000.

¶ 3. On June 11, 2004, Ray filed a complaint for divorce against Robin in Perry County Chancery Court. The chancellor issued an order June 30, 2004, awarding temporary custody of their three minor children to Ray until the trial. Robin filed an answer to the complaint and later submitted a motion to set aside the temporary order. At the trial, held August 2, 2005, the chancery court awarded sole physical custody of the three minor children to Ray, while both Ray and Robin retained joint legal custody. In addition, the chancellor awarded Ray the entirety of the marital home. From the judgment, Robin now appeals asserting that she should have been awarded sole physical custody of their three minor children and she should have been granted a financial interest in the marital home.

STANDARD OF REVIEW

¶ 4. Our scope of review in domestic relations matters is limited by the substantial evidence/manifest error rule. Mizell v. Mizell, 708 So.2d 55, 59(¶ 12) (Miss. 1998) (citing Stevison v. Woods, 560 So.2d 176, 180 (Miss.1990)). "This Court will not disturb the findings of a chancellor unless the chancellor was manifestly wrong, clearly erroneous or an erroneous legal standard was applied." Bell v. Parker, 563 So.2d 594, 596-97 (Miss.1990). This Court is required to respect the findings of fact made by a chancellor which are supported by credible evidence and not manifestly wrong. Newsom v. Newsom, 557 So.2d 511, 514 (Miss.1990). This is particularly true "in the areas of divorce and child support." Mizell, 708 So.2d at 59(¶ 13) (quoting Nichols v. Tedder, 547 So.2d 766, 781 (Miss.1989)).

I. WHETHER THE CHANCERY COURT ERRED IN AWARDING SOLE PHYSICAL CUSTODY OF THE THREE CHILDREN TO RAY JORDAN BASED ON THE COURT'S ANALYSIS OF THE ALBRIGHT FACTORS.

¶ 5. In determining the issue of child custody, the chancellor used twelve factors set forth in Albright v. Albright, 437 So.2d 1003, 1005 (Miss.1983), which states,

[T]he polestar consideration in child custody cases is the best interest and welfare of the child. The age of the child is subordinated to that rule and 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 that employment; physical and mental health and age of the parents; emotional ties of parent and child; moral fitness of parents; the home, school and community record of the child; the preference of the child at the age sufficient to express a preference by law; stability of home environment and employment of each parent, and other factors relevant to the parent-child relationship.

Id. Of the twelve factors, the chancellor in this case found four factors to be neutral, one to be inapplicable, one in favor of Robin (continuity of care) and the remaining six factors to favor Ray. Unless a chancellor "improperly considers and applies" the factors in Albright, an appellate court will not disturb the chancery court's findings. Hollon v. Hollon, 784 So.2d 943, 946(¶ 11) (Miss.2001). We will review each factor in this appeal and the chancellor's analysis of these factors.

I. Age, health and sex of the child.

¶ 6. Robin and Ray have three children: Caden, a male, ten years of age at the time of trial; Chastity, a female, six years of age; and Summer, a female, five years of age. The chancellor favored neither parent on this factor. Robin maintains that one reason this factor should have favored her was Caden's diagnosis of attention-deficit disorder. In her testimony at trial, Robin stated that she took care of Caden's doctor visits and medicine but Ray had not agreed with Caden's diagnosis and medical care, insinuating Ray was not meeting Caden's healthcare needs. However, Robin made no specific assertions at trial that Ray was not giving Caden his medication for his disorder, so we find no error on the chancellor's findings of fact.

¶ 7. Secondly, Robin says this factor should favor her since her youngest child, Summer, who had just turned five years old at the time of the trial, was of "tender years." Citing Hollon and Sobieske v. Preslar, 755 So.2d 410, 413(¶ 10) (Miss.2000), Robin argues that the chancellor abused his discretion in finding that this factor favored neither parent since there is a presumption in Mississippi that a mother is generally better suited to raise a child of tender years. The Sobieske court also stated, however, that this presumption has been significantly weakened. Id. Today, the age of a child is merely one of the many factors that the court considers in determining the best interests of the child. Albright, 437 So.2d at 1005. What actually constitutes a child of tender years, however, has not been clearly defined in the courts. "[A] child is no longer of tender years when that child can be equally cared for by persons other than the mother." Mercier v. Mercier, 717 So.2d 304, 307(¶ 15) (Miss.1998). In Lee v. Lee, 798 So.2d 1284, 1289(¶ 18) (Miss.2001), the court stated that a child over four years may not be subject to the "tender years" doctrine. Although Summer was barely five, it was likely she was eligible to begin pre-school, indicating she was of an age where she could be cared for by someone other than her mother. Even though the lower court did not give a thorough explanation of its analysis of this particular factor, we find no error based on the evidence given.

ii. Continuity of Care

¶ 8. The lower court favored Robin on this factor. Therefore, Robin brings no issue as to this factor.

iii. Parenting skills

¶ 9. The chancery court ruled in favor of Ray on this factor citing testimony from witnesses that Robin was not a good housekeeper and she was "a moody, short-tempered and aggressive person who lacked patience." Robin argues that the chancellor ignored testimony regarding her significant contributions to the children's educational, medical and social needs. Specifically, she again points to Caden's learning disability and Ray's reluctance in the treatment of the condition. The evidence showed, however, that Ray was willing to help Caden, going so far as to take him to a tutor for his schoolwork.

¶ 10. The chancellor commented that Robin's housekeeping was evidence that she was "delinquent" in her duties as a parent. Although the testimony at trial showed that Robin did not necessarily keep her house in pristine condition, it presented no evidence that the family lived in unhealthy conditions. Unfolded laundry and toys strewn on the floor are insufficient grounds to label someone an unfit parent. Even Ray's mother, Linda, testified that she did not think Robin's lax housekeeping skills made her an unfit mother.

¶ 11. On this same factor, Robin also points to testimony that Ray also exhibited aggressive behavior, which included verbal abuse directed towards her, in front of the children. We find that the testimony presented several instances of aggression on the part of both Ray and Robin. Robin was occasionally short-tempered with her children, and Ray was sometimes demanding and aloof, preferring to spend time in his shop.

¶ 12. Although Robin's lack of housekeeping skills may have been given too much weight by the chancery court, we do not agree that this factor necessarily favors Robin in any respect. Thus, we find no error in the chancellor's analysis of the facts on this issue.

iv. Willingness and capacity to provide primary care

¶ 13. The chancery court found that this factor favored Ray although both parents expressed the desire and willingness to provide primary care for their children. The chancellor based his findings on the fact that Ray has a full-time job with the family-owned plumbing business, which provided more flexibility as to his work hours, and a nicer home (the marital home). Robin, on the other hand, had a two-bedroom apartment and a part-time job.

¶ 14. Robin also asserts the chancellor's discussion regarding Ray's employment was out of...