Lee v. Lee, 2000-CA-00872-SCT.

• Citation: 798 So.2d 1284
• Decision Date: 31 October 2001
• Docket Number: No. 2000-CA-00872-SCT.,2000-CA-00872-SCT.
• Parties: Belinda Quin LEE v. Jason Gilliam LEE.
• Court: United States State Supreme Court of Mississippi

798 So.2d 1284

Belinda Quin LEE v. Jason Gilliam LEE.

No. 2000-CA-00872-SCT.

Supreme Court of Mississippi.

October 31, 2001.

Bryan C. Harbour, McComb, for Appellant.

Wayne Dowdy, Magnolia, for Appellee.

EN BANC.

DIAZ, Justice, for the Court:

¶ 1. On January 6, 1999, Belinda Quin Lee (Belinda) filed suit for a divorce from her husband, Jason Gilliam Lee (Jason), on the grounds of habitual cruel and inhuman treatment, as well as habitual and excessive use of alcohol. In her complaint Belinda sought temporary and permanent possession of the marital domicile; equitable distribution of the marital assets; and temporary and permanent custody of their daughter, Lauren Katherine Lee (Lauren). On January 21, 1999, Jason filed an answer generally denying Belinda's claims and sought dismissal of the complaint. Chancellor W. Hollis McGehee II entered a temporary order on February 4, 1999, which (1) awarded temporary joint legal and physical custody of Lauren; (2) ordered that Lauren be re-enrolled at her previous day-care center in Tylertown; (3) ordered the couple to temporarily share the possession and use of the marital domicile with debt obligations to be handled as before; (4) enjoined the couple from harassing or intimidating each other; and (5) prohibited the consumption of alcoholic beverages in the presence of Lauren or each other.

¶ 2. On February 9, Belinda filed with the Pike County Chancery Court a motion to reconsider the temporary order. In response, the chancellor modified the order to give Belinda "temporary exclusive use, occupancy and possession" of the marital domicile. However, the issues of custody, visitation and support were left unchanged or unaddressed.

¶ 3. Then, on May 4, 1999, a motion for citation of contempt was filed by Belinda. During the separation, Belinda discovered that Jason tapped the phones and recorded her conversations, including those with her attorney. The issue was never addressed or resolved.

¶ 4. On the first day of trial, August 25, 1999, Belinda and Jason entered into an agreement whereby the parties consented to a divorce on the grounds of irreconcilable differences and for the chancellor to decide the remaining issues of custody, visitation, support, and equitable distribution. Following the agreement, a two-day trial was held.

¶ 5. On September 2, 1999, the chancellor entered a final judgment with an accompanying opinion letter, setting forth an analysis of the Albright factors, which (1) granted a divorce on the ground of irreconcilable differences; (2) awarded the parties temporary joint legal and physical custody of Lauren to last six months; and (3) reserved a final ruling on all other issues. Specifically as to custody, Jason was to have Lauren Monday morning until Thursday evening and one Saturday per month. Again, Belinda filed a motion to reconsider. In response, the court, recognizing its own errors, took the unusual step of affirming the temporary custody scheme, appointing a guardian ad litem, instructing that a hearing concerning permanent custody be held upon receipt of the guardian ad litem's report, and, setting aside the divorce.

¶ 6. The next action was the findings of fact and conclusions of law issued on February 11, 2000, in which the chancellor equitably divided the marital assets and determined that Belinda should receive sole use and possession of the marital domicile.

¶ 7. Finally, on March 29, 2000, without conducting the previously instructed hearing, but after having received and reviewed the guardian ad litem's report as well as examining the custody proposals submitted by both parties, the chancellor entered a final judgment. In its judgment, the court incorporated its previous Albright analysis, awarded the parties joint legal custody, gave Jason primary physical custody of Lauren with liberal visitation rights to Belinda, and ordered Belinda pay $250 per month in child support. After another motion to reconsider was denied, Belinda now appeals the final judgment. While her brief contains a litany of assignments of error, the issues on appeal can safely be stated as: (1) whether the trial court erred in its application and analysis of the Albright factors; (2) whether the trial court committed reversible procedural errors and/or erroneous findings of fact; and (3) whether the trial court committed reversible error by failing to sanction Jason Lee for tapping the phone of the marital domicile after Belinda Lee had been given exclusive use of the same. In addition, Jason raises concern over (4) whether the provisions of Miss. R.App. P. 28(k) are applicable to Belinda Lee's brief.

FACTS

¶ 8. Jason and Belinda were married on December 18, 1992. Their daughter, Lauren, was born on April 10, 1997. At the time of appeal, Jason was 33 years old, and Belinda was 31. Both are in good physical and mental health.

¶ 9. Jason is employed as a real estate broker in Tylertown, Mississippi. As such, his work schedule is quite flexible, and he is rarely more than 20 minutes from Tylertown at any given time. Belinda is a registered nurse at Lallie Kemp Medical Center in Independence, Louisiana, some 51 miles from the marital domicile in Pike County. While her job does not allow the unfettered flexibility that Jason's does, she demonstrated during the divorce proceedings as well as at trial that her employer gave her considerable leeway in accommodating any scheduling requests.

¶ 10. The marital home was purchased by the couple from Belinda's grandmother, Aline Quin (Aline), whom lives in the house immediately next door. With the help of a loan, the Lees began remodeling the home around the time of their marriage.

¶ 11. While both Jason and Belinda have contributed to the rearing of Lauren, in her early infancy, Aline assisted the couple a great deal in watching the child. According to trial testimony, Aline watched Lauren quite often and for extended periods of time. At trial, conflicting testimony was given concerning which parent had the primary role of caring for Lauren. It appears from the record that when her schedule permitted it, Belinda handled much of the daily aspects of raising Lauren. When Belinda would work evening or nighttime hours, Jason was largely responsible for Lauren's care.

¶ 12. Prior to separation, Lauren attended Lear's Day Care in Tylertown. During the separation, Belinda transferred Lauren to Albany Early Learning Center located approximately 15 miles from her work in Louisiana. She claimed the switch was out of convenience and a concern for Lauren's safety. Again, there was dispute over the accuracy of the testimony and the motivation behind the move. In fact, the choice of daycare facilities became a heated and quarrelsome subject during trial.

¶ 13. Although there was quite a lot of heated arguing over the custody battle, it is apparent that both Jason and Belinda love and care for Lauren. In fact, there was direct testimony at trial that both parents loved their daughter and that she loved them in return. While Belinda introduced testimony regarding Jason's allegedly excessive alcohol consumption, there are no allegations that either parent is unfit to raise Lauren, and the facts of Belinda's allegations will be discussed later.

DISCUSSION

¶ 14. The standard of review in child custody cases is rather limited. We reverse only if a chancellor is manifestly in error or has applied an erroneous legal standard. Williams v. Williams, 656 So.2d 325, 330 (Miss.1995). The chancellor has the sole responsibility to determine the credibility of witnesses and evidence, and the weight to be given each. Chamblee v. Chamblee, 637 So.2d 850, 860 (Miss.1994). In custody matters, we, as an appellate court, shall not disturb the decisions of chancellors unless it is clear that justice and the law require us to do so. Id.

I. WHETHER THE TRIAL COURT ERRED IN ITS APPLICATION AND ANALYSIS OF THE ALBRIGHT FACTORS.

¶ 15. In child custody cases, the polestar consideration is the best interest of the child, and this must always be kept paramount. Sellers v. Sellers, 638 So.2d 481, 485 (Miss.1994). To help guide us to a proper determination as to custody, the court considers the following factors in determining the child's best interests: (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 the 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 v. Albright, 437 So.2d 1003, 1005 (Miss.1983). While the Albright factors are extremely helpful in navigating what is usually a labyrinth of interests and emotions, they are certainly not the equivalent of a mathematical formula. Determining custody of a child is not an exact science.

¶ 16. In the case sub judice, the chancellor made on-the-record findings for each Albright factor and obviously weighed the concerns of both parties. However, Belinda contends that in his analysis, the chancellor was manifestly in error in making certain findings which were not supported by substantial evidence, as well as failing to make findings which were supported by the evidence. Furthermore, Belinda contends that the chancellor erred specifically in failing to find a preference for her with regard to the age and sex of Lauren, in effect abandoning the tender years doctrine. Therefore, it is appropriate that we briefly revisit the chancellor's analysis of each Albright factor to see if he...