Messer v. Messer, 2001-CA-01761-COA.

• Decision Date: 10 June 2003
• Docket Number: No. 2001-CA-01761-COA.,2001-CA-01761-COA.
• Citation: 850 So.2d 161
• Parties: Joan McCoy MESSER, Appellant, v. GLen David MESSER, Appellee.
• Court: Mississippi Court of Appeals

850 So.2d 161

Joan McCoy MESSER, Appellant, v. GLen David MESSER, Appellee.

No. 2001-CA-01761-COA.

Court of Appeals of Mississippi.

June 10, 2003.

Shirlee Marie Fager-Baldwin, Hattiesburg, for appellant.

Nancy E. Steen, Hattiesburg, for appellee.

Before KING, P.J., THOMAS and CHANDLER, JJ.

CHANDLER, J., for the court as to issues I, II, IIIA, B, D and E.

¶ 1. Glen and Joan Messer were granted a divorce in the Chancery Court of Lamar County. The parties submitted to the court issues of custody, support, visitation and division of marital assets. Feeling aggrieved, Joan appeals to this Court assigning the following issues on appeal:

I. WHETHER THE CHANCELLOR ERRED IN AWARDING CUSTODY OF THE MINOR CHILD TO GLEN.

II. WHETHER THE CHANCELLOR ERRED IN REDUCING JOAN'S VISITATION.

III. WHETHER THE CHANCELLOR ERRED IN DIVIDING THE ASSETS PURSUANT TO FERGUSON V. FERGUSON.

A. Whether the chancellor erred by not classifying the Lamar County property as a marital asset.

B. Whether the chancellor erred in equally dividing the unfinished marital home between the parties.

C. Whether the chancellor erred in not dividing the Covington County property.

D. Whether the chancellor erred in classifying the Gulf Shores condominium as a marital asset and estimating its appreciation in value.

E. Whether the chancellor erred in assessing the value of the mobile home.

¶ 2. Upon review of the record and legal precedent, we affirm as to Issues I and II and subparts A, B, D, and E of Issue III, and reverse and remand in part as to subpart C of Issue III.

FACTS

¶ 3. Glen and Joan were married on August 14, 1988. Joan had two children from a previous marriage who were over the age of twenty-one and emancipated at the time of the trial. The parties had one child, born December 5, 1990.

¶ 4. Glen and Joan had accumulated land by inheritance and by purchase prior to and during the marriage. Glen inherited approximately eighty-eight acres of land in Lamar County, Mississippi, prior to the marriage. Joan inherited a home in Wayne County, Mississippi, prior to the marriage. She also inherited 288 acres in Clarke County, Mississippi, during the marriage. The parties purchased 110 acres in Covington County, Mississippi, in 1995, and a condominium in Gulf Shores, Alabama, in 1999.

¶ 5. In November of 1999, Joan and Glen separated. On February 4, 2000, Glen filed for divorce on the fault-based grounds of habitual, cruel and inhuman treatment and desertion, and in the alternative, irreconcilable differences. Joan responded by agreeing to a divorce based on irreconcilable differences, but denied that Glen was entitled to a divorce on any of the listed fault-based grounds.

¶ 6. A temporary order was entered on August 2, 2000, awarding primary custody of their son to Glen and providing liberal visitation to Joan. On July 17, 2000, Glen withdrew his petition for divorce on the grounds of habitual, cruel and inhuman treatment and desertion, and agreed to proceed with the divorce action on the grounds of irreconcilable differences. The parties reserved to the chancellor the issues of child custody, support, visitation and division of marital assets. On October 11, 2001, the chancellor entered his judgment, and Joan filed for an appeal on November 6, 2001.

LAW AND ANALYSIS

I. WHETHER THE CHANCELLOR ABUSED HIS DISCRETION AND WAS MANIFESTLY IN ERROR BY AWARDING CUSTODY OF THE MINOR CHILD TO GLEN.

¶ 7. The chancellor awarded Glen and Joan joint legal custody of their son with primary physical custody granted to Glen. Joan was provided with certain visitation privileges. Joan appealed the decision claiming the chancellor erred in not granting her primary custody of the child.

¶ 8. "In the difficult matter of determining child custody in divorce proceedings, the chancellor is necessarily vested with substantial discretion." McWhirter v. McWhirter, 811 So.2d 397, 399(¶ 4) (Miss.Ct.App.2001). Because of the latitude given the chancellor, this Court when reviewing a chancellor's child custody ruling, will only reverse where the chancellor committed manifest error, acted in a way that is clearly erroneous or applied an erroneous legal standard. Passmore v. Passmore, 820 So.2d 747, 749(¶ 5) (Miss.Ct.App.2002).

¶ 9. In a child custody case, the chancellor must keep the best interest of the child as his paramount concern. Albright v. Albright, 437 So.2d 1003, 1004 (Miss.1983). The Mississippi Supreme Court established eleven factors to aid our courts in making the determination of what is in the best interest of the child:

(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

(11) other factors relevant to the parent-child relationship.

Id. at 1005.

¶ 10. In order for this Court to properly review the chancellor's decision, the chancellor must consider and discuss each factor when rendering his opinion. Powell v. Ayars, 792 So.2d 240, 244(¶ 9) (Miss.2001).

¶ 11. The chancellor indicated that both parents were fit to exercise custodial responsibilities. As to eight of the eleven Albright factors, the chancellor concluded that the factors were irrelevant or that the evidence did not appear to particularly favor either parent. However, the chancellor concluded that certain factors, the providing of primary child care, the continuity of care, and the child's age, weighed in Glen's favor.

(1) PRIMARY CHILD CARE AND PARENTING SKILLS

¶ 12. The chancellor found that both parents were willing to provide primary care to their child. Despite this finding, the chancellor concluded that this factor slightly favored Glen.

¶ 13. Both parties' witnesses testified to the love and care each provided. However, Glen indicated that when their child was a baby he provided sixty-five to seventy percent of the primary care. While it is true that both parents exhibited good parenting skills, the chancellor concluded that, given the totality of the circumstances, Glen exhibited more of the primary caretaker role.

¶ 14. Joan asserts that she has the better parenting skills because she attends church on a regular basis. Glen did acknowledge that he did not attend church on a regular basis but stated that his sister would take his son to church. The Mississippi Supreme Court noted that parental religious differences cannot "be the sole basis for custody decisions." Hollon v. Hollon, 784 So.2d 943, 947(¶ 12) (Miss. 2001).

(2) CONTINUITY OF CARE

¶ 15. Glen and Joan have careers as educators. However, Joan is involved in a partnership with her family called McCoy & McCoy Investments which requires some of her time. Under this factor, the chancellor indicated that Joan's other business interests could potentially interfere with her ability to care for the child. Therefore, the chancellor concluded that this factor favored Glen.

¶ 16. Joan argues that the chancellor overlooked the fact that Glen's schedule interferes with his ability to care for the child. Joan states that, unlike Glen, her schedule allows her to be home when her son comes home from school. She indicates that Glen's weekday schedule requires him to be at work until 5:00 p.m. and to facilitate a night lab one night per week. Joan said during these periods of Glen's absence, their child is watched by Glen's seventy-one-year-old sister, Patsy Ruth Sanders. Patsy lives next door to the Messer's home. Joan expressed concern for Patsy's lack of transportation and her health condition.

¶ 17. In reviewing the record, this Court does not foresee a real danger for the child while in the care of his aunt. It would be a dangerous precedent for this Court to state that caregivers without a means of transportation are a threat to children. Also, Joan's argument that Patsy is unsuitable to care for their son because of her health problems lacks merit. Patsy only takes medication for arthritis and inner ear problems. These health concerns do not rise to the level of creating an unsafe environment for the child.

¶ 18. Although the chancellor did not discuss the significance of Patsy's presence in the child's life, we find it an important factor in weighing the determination of child custody. This Court has held that the presence of extended family is a legitimate factor to support awarding custody to a parent. Neville v. Neville, 734 So.2d 352, 355(¶ 10) (Miss.Ct.App.1999). The presence of Patsy may help provide stability in the child's life following the trauma of his parent's divorce.

(3) AGE, SEX AND HEALTH OF THE CHILD

¶ 19. At the time of the divorce, Glen and Joan's son was ten years old. The chancellor determined that the age and sex of the child strongly favored custody to Glen. The chancellor stated that during this stage of life the child needed the "guidance and influence of the father." This Court has held this to be a valid concern in determining custody. See Hassett v. Hassett, 690 So.2d 1140, 1149 (Miss. 1997) (granting custody of six-year-old son to father because "child was entering an age when male guidance [was] needed").

¶ 20. This Court finds Joan's arguments unpersuasive on this issue. The chancellor "has substantial discretion in such matters and must often make difficult decisions when he is satisfied that both parents are loving and genuinely concerned with the child's well-being." Robinson v. Jackson, 794 So.2d 290, 293(¶ 8) (Miss.Ct.App.2001).

II. WHETHER THE CHANCELLOR ERRED IN

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