McCullough v. McCullough, No. 2008-CA-00029-COA.

• Decision Date: 06 October 2009
• Docket Number: No. 2008-CA-00029-COA.
• Citation: 52 So.3d 373
• Parties: April McCULLOUGH, Appellant, v. Shane Allen McCULLOUGH, Appellee.
• Court: Mississippi Court of Appeals

52 So.3d 373

April McCULLOUGH, Appellant,

v.Shane Allen McCULLOUGH, Appellee.

No. 2008-CA-00029-COA.

Court of Appeals of Mississippi.

Oct. 6, 2009.

Corey Donald Hinshaw, Tiffany Marie Graves, Jackson, attorneys for appellant.

W. Brady Kellems, Brookhaven, attorney for appellee.

Before KING, C.J., GRIFFIS, CARLTON and MAXWELL, JJ.

CARLTON, J., for the Court.

¶ 1. On November 5, 2007, the Chancery Court of Lincoln County entered a judgment granting a divorce to April McCullough (April) and Shane Allen McCullough (Shane) and giving Shane custody of the couple's two minor children. April was granted liberal visitation and was ordered to pay child support in the amount of $604 per month. Aggrieved, April appeals the chancery court's judgment. Finding no abuse of discretion by the chancellor, we affirm.

FACTS

¶ 2. April and Shane were married on June 23, 2001. The marriage produced two daughters: Lindsey and Caitlin, who were five years old and three years old, respectively, at the time of the divorce. The couple lived in Gautier, Mississippi, and then in Ruth, Mississippi. Shane worked at Avondale Shipyard in New Orleans, Louisiana where he stayed during the week. April would visit Shane in New Orleans occasionally, but she typically stayed in Ruth at the couple's home.

¶ 3. The couple's oldest child, Lindsey, was born on November 1, 2002. Shortly after Lindsey's birth, Shane took a job working as an engineer with Carnival Cruise Lines, which required him to relocate to Italy on April 12, 2003. On May 8, 2003, April and Lindsey joined Shane in Italy. The family made several trips back to Mississippi, with April and Lindsey taking at least one trip to visit April's family in Canada. Testimony revealed that April and Lindsey would travel to Mississippi from Italy while Shane was traveling for work. Shane would meet them in Mississippi, and the family would then spend time in Mississippi together before going back to Italy.

¶ 4. On July 31, 2004, Shane and April returned to Mississippi. April was pregnant with Caitlin at that time. Because April was a Canadian citizen and the family had no health insurance, the couple decided that April should go to Canada to give birth to Caitlin. April traveled to Canada to stay with her mother and to await Caitlin's birth. Caitlin was born on October 29, 2004. Shane left Canada about one week after Caitlin's birth to return to work in Italy.

¶ 5. After Christmas 2004, Shane, April, and the children returned to Italy. The family lived in Italy and traveled to Mississippi over the next year. April and the children returned to Mississippi in October 2005. Shane joined them on December 23, 2005. On January 7, 2006, the couple separated. Shane returned to Italy to complete his contractual obligations for work, and April remained in Ruth.

¶ 6. April filed for divorce on March 27, 2006. Meanwhile, Shane completed his work in Italy and returned to the United States. Shane took a job with Sperry Marine, which required him to work for several months in Charlottesville, Virginia before being transferred to Ocean Springs, Mississippi in October 2006. Shane's contract with his employer included a flight to Mississippi every three weeks to visit with his daughters. He visited with them regularly while living in Virginia.

¶ 7. On October 20, 2006, April rented a car and drove with the children to Maine to set up residence for herself and the children. On October 26, 2006, Shane returned to Ruth from Virginia. On October 27, he filed his counterclaim seeking custody of the children and a temporary restrainingorder requiring the immediate return of the children.

¶ 8. On November 2, 2006, a hearing was conducted regarding Shane's temporary restraining order. April did not appear at the hearing, but she was represented by her attorney. The chancellor entered an order on November 3, 2006, ordering April to return the children to Lincoln County, Mississippi, immediately. The order gave Shane temporary legal and physical custody of the children.

¶ 9. April was notified of the chancellor's decision on November 2, 2006. She filed a complaint for protection from abuse in Maine. She sought custody of the children and a restraining order against Shane. April did not leave Maine until November 22nd to return the children to Mississippi. Shane had to drive to Jackson to pick up the children from a hotel.

¶ 10. The McCulloughs' divorce and custody trial commenced on August 27, 2007, and lasted for six days. The chancellor entered his final order of divorce on November 19, 2007, granting physical and legal custody of the children to Shane. April was granted visitation and ordered to pay $604 per month in child support to Shane. Further, she was ordered to pay the medical bills incurred for the children that were not covered by insurance.

¶ 11. On appeal, April asserts the following assignments of error:

I. Whether the chancellor committed manifest error by allowing into evidence depositions on written questions and substantially relying on the same to render his opinion to award physical and legal custody to Shane.

II. Whether the chancellor erroneously considered the guardian ad litem's final report, which was not submitted until the final day of trial, thereby depriving April of an opportunity to challenge the guardian ad litem's findings and recommendations.

III. Whether the chancellor erred in his application of the Albright factors and abused his discretion in awarding sole physical and legal custody to Shane.

IV. Alternatively, whether the chancellor erred by failing to award the parties joint legal custody of the children.

V. Whether the chancellor erred in requiring April to be solely responsible for all medical expenses not covered by health insurance.

¶ 12. We find no error and affirm the judgment of the chancery court.

STANDARD OF REVIEW

¶ 13. Our standard of review in child custody disputes is well settled. "A chancellor's findings of fact will not be disturbed unless manifestly wrong or clearly erroneous. This Court will not disturb the findings of a chancellor when supported by substantial evidence unless the chancellor abused his [or her] discretion, was manifestly wrong, clearly erroneous or an erroneous legal standard was applied." Sanderson v. Sanderson, 824 So.2d 623, 625-26(¶ 8) (Miss.2002) (citations omitted). Furthermore, this Court "will affirm the [child custody] decree if the record shows any ground upon which the decision may be justified.... We will not arbitrarily substitute our judgment for that of the chancellor who is in the best position to evaluate all factors relating to the best interests of the child." Mosley v. Mosley, 784 So.2d 901, 905-06(¶ 15) (Miss.2001) (quoting Yates v. Yates, 284 So.2d 46, 47 (Miss.1973)). "However, where the chancellor improperly considers and applies the Albright¹ factors, an appellate court isobliged to find the chancellor in error." Hollon v. Hollon, 784 So.2d 943, 946(¶ 11) (Miss.2001) (footnote added).

DISCUSSION

I. Whether the chancellor erred by allowing depositions on written questions into evidence and relying on them to render his opinion.

¶ 14. April's first assignment of error centers around depositions on written questions propounded to five witnesses who live out of the country. Regarding these depositions, April argues that: (1) Shane failed to provide her with adequate notice of the depositions, depriving her of the opportunity to cross-examine the witnesses or object to the form of the questions; (2) the written deposition questions were not properly certified pursuant to Mississippi Rule of Civil Procedure 30(f)(1); (3) the chancellor relied on the deposition testimony in making his custody determination, despite the highly objectionable form of the questions; and (4) the guardian ad litem improperly relied on the deposition testimony in forming her opinion.

¶ 15. Mississippi Rule of Civil Procedure 31(a) provides the following guidelines regarding the taking of depositions on written questions:

(a) Serving questions; notice. After commencement of the action, any party may take the testimony of any person, including a party, by deposition upon written questions. The attendance of witnesses may be compelled by the use of subpoena as provided by law. The deposition of a person confined in prison may be taken only by leave of court on such terms as the court prescribes.

A party desiring to take a deposition upon written questions shall serve them upon every other party with a notice stating (1) the name and address of the person who is to answer them, if known, and if the name is not known, a general description sufficient to identify him or the particular class or group to which he belongs, and (2) the name or descriptive title and address of the officer before whom the deposition is to be taken. A deposition upon written questions may be taken of a public or private corporation or a partnership or association or governmental agency in accordance with Rule 30(b)(6). Within thirty days after the notice and written questions are served, a party may serve cross questions upon all other parties. Within ten days after being served with cross questions, a party may serve redirect questions upon all other parties.

Within ten days after being served with redirect questions, a party may serve recross questions upon all other parties. The court may for cause shown enlarge or shorten the time.

¶ 16. Shane served April with his first notices of depositions on written questions on February 20, 2007. Shane served April with amended notices on March 19, 2007. The amended notices identified the designated depositing officer for each of the depositions to be taken. The first deposition was actually taken on February 27, 2007, prior to April receiving the amended notices. Therefore, April contends Shane failed to comply with Rule 31(a), depriving her of an opportunity to cross-examine the deponents or to object to the questions. April filed a motion in limine to...