Limbaugh v. Limbaugh, 97-CA-01209-COA.

• Decision Date: 28 September 1999
• Docket Number: No. 97-CA-01209-COA.,97-CA-01209-COA.
• Citation: 749 So.2d 1244
• Parties: Beverly Bain LIMBAUGH, Appellant, v. Kenneth Guice LIMBAUGH, Appellee.
• Court: Mississippi Court of Appeals

749 So.2d 1244

Beverly Bain LIMBAUGH, Appellant, v. Kenneth Guice LIMBAUGH, Appellee.

No. 97-CA-01209-COA.

Court of Appeals of Mississippi.

September 28, 1999.

John W. Chapman, Brandon, Attorney for Appellant.

William B. Kirksey, Jackson, Attorney for Appellee.

EN BANC.

SOUTHWICK, P.J., for the Court:

¶ 1. The initial opinion in this case that remanded for specific findings is withdrawn and the following is substituted. The Chancery Court of Rankin County awarded primary custody of two children to their father, Kenneth Limbaugh. The children's mother, Beverly Limbaugh, appealed alleging that the chancellor failed to apply the proper factors for determining child custody and consequently reached the wrong determination. A remand was ordered by this court on June 22, 1999, for the chancellor to place on the record his reasons for awarding custody as he did. The chancellor promptly responded. After a review of those findings and the original briefs, which the parties advised us adequately set out their positions even after the remand, we affirm on all issues.

FACTS

¶ 2. On September 16, 1997, Kenneth and Beverly Limbaugh were granted a divorce based on irreconcilable differences. Legal custody of the couple's two children was to be joint, but "the physical care, custody, and control of the children" would be with the father. Child custody is the only issue involved in this appeal.

¶ 3. Testimony in this case revealed that the couple had been married approximately ten years at the time of their separation. Although Mrs. Limbaugh admitted that Mr. Limbaugh was an excellent father, she felt the children would be better off with her. The father argued that his former wife was not "in a position to take care of the children." Motherhood, he said, did not "fit her lifestyle."

¶ 4. It was revealed in the testimony that Beverly Limbaugh had stayed overnight with the children at the house of a man with whom she was romantically involved, James Reames. Mr. Reames had been a long time family friend and Kenneth Limbaugh's best friend. Bringing the children over and staying the night had been a fairly frequent occurrence when the Limbaughs were still together.

¶ 5. Both Beverly Limbaugh and James Reames denied having had any sexual relationship while the children were present, though they admitted she had stayed over with her children. The two claimed they had stayed in separate rooms when visiting. Reames's mother, who lived with her son, answered, "No, sir," when asked if her son and Beverly Limbaugh had "shared the same bedroom" while the children were at the house.

¶ 6. Kenneth Limbaugh admitted at trial having twice had sexual relations in the last year with someone other than his wife, but denied that the children had been in the house, nor had he ever had either woman stay the night while the children were present.

DISCUSSION

I. Whether the court considered the best interest of the children in awarding custody and whether the chancellor's ruling was against the overwhelming weight of the evidence.

¶ 7. There are two facets of this issue, 1) the specific findings regarding the basis for awarding custody, and 2) the finding by the chancellor that the best interests of the children were served by placing them with the father.

¶ 8. It has been said many times that the principal consideration in child custody cases is the best interest and welfare of the child. Albright v. Albright, 437 So.2d 1003, 1005 (Miss.1983). That case identified the factors that are to be considered. Id. The chancellor initially assigned custody without making a reference to any of the factors with the possible exception of the parents' morality. After remand, the chancellor provided detailed finding of facts in accordance with Albright.

¶ 9. In reviewing a child custody decision, we will affirm unless the chancellor was manifestly wrong, clearly erroneous, or applied an erroneous legal standard. Wright v. Stanley, 700 So.2d 274, 280 (Miss.1997). Error arises if the chancellor's decision is not supported by substantial evidence in the record. Smith v. Jones, 654 So.2d 480, 485 (Miss.1995).

¶ 10. The Albright factors that should be considered by chancellors in reaching decisions regarding custody are these:

The age of the child 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.

Albright v. Albright, 437 So.2d 1003, 1005 (Miss.1983).

¶ 11. There was significant testimony structured around these factors. The chancellor noted that the children are 9 and 5 years old and both are female, which does not prohibit placing the children in the custody of either parent. Although the chancellor did not comment on the health of the children, he stated that both parents are registered nurses and that the ability to care for the children is equal.

¶ 12. While the evidence indicated that both parents participated in the lives of the children, it is evident that Kenneth was the parent that provided the greatest continuity of care. Kenneth was the parent who was able to take the responsibility of preparing the children for school in the morning, even walking the older child to her classroom when he could have "dropped her at the front" of the school. Kenneth was able to organize his work schedule to perform these duties. Kenneth was the parent notified by the school when one of the children was sick or needed attention. There also was evidence of considerable bonding between Kenneth and the older child.

¶ 13. The chancellor determined that while both parents are equally able to care for the children, Kenneth was more willing to accept these duties and obligations than Beverly. This opinion was in part based on testimony that Beverly once brought the children back to Kenneth four hours early so that she could go on a trip to New Orleans with her boyfriend. The chancellor noted that the employment of the parents...