Mitchell v. Mitchell, 1999-CA-01343-COA.

• Citation: 820 So.2d 714
• Decision Date: 24 October 2000
• Docket Number: No. 1999-CA-01343-COA.,1999-CA-01343-COA.
• Parties: Effie McCaskill MITCHELL, Appellant, v. George Larry MITCHELL, Appellee.
• Court: Mississippi Court of Appeals

820 So.2d 714

Effie McCaskill MITCHELL, Appellant, v. George Larry MITCHELL, Appellee.

No. 1999-CA-01343-COA.

Court of Appeals of Mississippi.

October 24, 2000.

Rehearing Denied January 9, 2001.

David L. Walker, Batesville, Attorney For Appellant.

B. Leon Johnson, Attorney For Appellee.

BEFORE KING, P.J., LEE, AND MYERS, JJ.

LEE, J., for the Court:

¶ 1. Effie McCaskill Mitchell and George Larry Mitchell were granted an irreconcilable differences divorce. Mr. and Ms. Mitchell consented to the issue of the child custody of their daughter Alexis being determined by the chancellor. The chancellor awarded custody of Alexis to Mr. Mitchell. Feeling aggrieved by the chancellor's decision, Ms. Mitchell filed a timely appeal. Ms. Mitchell presents one issue for our review: Whether the chancellor erred in his application of the factors listed in Albright v. Albright, when he awarded custody of Alexis to Mr. Mitchell. This Court determines that this issue is without merit and affirms the lower court.

FACTS

¶ 2. Ms. Mitchell had four children, including her daughter Alexis which she had with Mr. Mitchell. It is just the custody of Mr. and Ms. Mitchell's daughter, Alexis, that is involved in the case at bar. At the time of the hearing for Alexis's custody, she was two years old; Mr. Mitchell was forty years old, and Ms. Mitchell was thirty-three years old. Initially, Ms. Mitchell was called as an adverse witness by Mr. Mitchell. Ms. Mitchell testified that at the time she and Mr. Mitchell separated, she was employed at the Delta Correctional Facility. Ms. Mitchell usually worked at the correctional facility between the hours of 3:00 p.m. to 12:00 midnight; however, at the time of the hearing she stated that she had changed her work hours to the 8:00 to 4:00 shift and was no longer spending nights in Greenwood. During her examination, Ms. Mitchell was asked to explain whether or not she believed Mr. Mitchell took care of Alexis while she was at work.

¶ 3. In response, Ms. Mitchell asserted that "sometimes" Mr. Mitchell would take care of the children, and that "sometimes" Mr. Mitchell would cook, bathe, dress, and take the children to school; however, if he did not do these tasks, her sister would help. Ms. Mitchell claimed that it was necessary for her sister to assist on occasion because Mr. Mitchell had become angry and violent, so she would take her children, including Alexis, to her sister's house.

¶ 4. Ms. Mitchell admitted that Mr. Mitchell had made numerous attempts to visit Alexis. She denied refusing Mr. Mitchell the opportunity to visit with Alexis; however, she did concede that on Easter she had denied Mr. Mitchell visitation because he desired to take Alexis out of the state. Ms. Mitchell further admitted that when she left Alexis with her sister that she had instructed her sister not to let Mr. Mitchell see Alexis, but she justified her refusal by asserting that this measure was taken because Mr. Mitchell had been away for approximately two months and had not contacted Alexis. Therefore, she wanted Mr. Mitchell to contact her before he came by to see Alexis. Ms. Mitchell also admitted that during their separation she would not tell Mr. Mitchell about any illnesses suffered by Alexis unless he specifically inquired.

¶ 5. Ms. Mitchell testified that when she could not take care of the children her sister or her mother monitored the children. She denied that she consumed alcoholic beverages and stated that she did not frequent nightclubs. When specifically asked whether she had been cautioned about driving the children around in the automobile while she was under the influence of alcohol, she once again denied that she drank. Ms. Mitchell also denied having any emotional problems.

¶ 6. Ms. Mitchell initially denied that she had left her children unattended; however, upon further questioning, she conceded that it may have happened, but it was just while she "ran up the street for a minute." She stated that she had not left them unattended for hours at a time. Ms. Mitchell also contested the assertion that Alexis had been left unattended out on the lawn and in the street at her sister's house. Ms. Mitchell claimed that when she stayed in Greenwood due to the demands of her employment, she would leave her children with her family. Next, Ms. Mitchell was questioned about possible physical abuse to Alexis and did not recall Alexis having a long burn on her forehead. She also repudiated the contention that Alexis had any cuts and explained that the only time Alexis had suffered a laceration was when she was wearing her glasses and had fallen, and her glasses cut her. Ms. Mitchell stated that Alexis had been taken to the hospital twice for treatment because of cuts from her eyeglasses. Ms. Mitchell contended that she had spoken with Alexis's eye doctor about the situation, but that the doctor said there was nothing that could be done; therefore, she continued to allow Alexis to wear the eyeglasses. Additionally, Alexis had incurred a black eye which Ms. Mitchell asserted occurred while Alexis was playing. Furthermore, Ms. Mitchell admitted that Alexis had blisters on her head, but alleged that the blisters were caused from her hair being pulled too tight by her barrettes. When questioned about ant bites on Alexis, she denied that Alexis had ant bites, but instead called these marks "blisters" and explained that it might have been the chicken pox. However, she had forgotten what the doctor had said regarding the bumps.

¶ 7. Ms. Mitchell admitted that Alexis and Mr. Mitchell have a relationship and that Alexis talked about him.

¶ 8. Ms. Mitchell denied that she had a boyfriend in Greenwood that diverted her attention away from her children. The next witness that was called by Mr. Mitchell was Katherine Ewing.

¶ 9. Mrs. Ewing testified that she knew Mr. and Ms. Mitchell; however, between the two she was more acquainted with Mr. Mitchell. She stated that she had had the opportunity to see Alexis during Mr. and Ms. Mitchell's time of separation. On one occasion, Mr. Mitchell had brought Alexis to her house and had inquired about bumps on her body.

¶ 10. Mrs. Ewing asserted that since she had children she first thought it was chicken pox; however, upon closer examination she thought they looked like ant bites, or insect bites. Nevertheless, Mrs. Ewing was not sure and suggested that Mr. Mitchell might want to take Alexis to see a doctor to determine the cause of the bumps. Mrs. Ewing was asked whether she had the opportunity to see Alexis again.

¶ 11. Mrs. Ewing claimed that she did and on that occasion Alexis had a scar on her left forehead, above her eye. She did not think that eyeglasses were the cause of the scar. Mrs. Ewing stated at this time Alexis appeared to be fairly clean. Mrs. Ewing was also called upon to testify regarding her observations of the relationship between Mr. Mitchell and Alexis.

¶ 12. Mrs. Ewing claimed that what she viewed was fatherly love and that Alexis was free to be herself around him. Additionally, she stated that she had never heard Mr. Mitchell raise his voice to Alexis, and Alexis appeared to listen to him. Mrs. Ewing classified Mr. Mitchell's relationship with Alexis as "good". Mrs. Ewing testified that when she saw Alexis with Mr. Mitchell she was presentable, and that although she did not look to have been groomed by one's mother, it appeared he was caring for her.

¶ 13. On cross-examination, Mrs. Ewing conceded that children have accidents and that even her children had been in a fire-ant bed. Additionally, she said that she would not disagree with a doctor if he had stated that what she thought might be ant bites was indeed chicken pox. Furthermore, Mrs. Ewing stated that she did not know how the cut over Alexis's eye occurred, and that it was possible that her eyeglasses could have caused the injury if she had fallen while wearing them. The next witness presented by Mr. Mitchell was Sandra Crump McLove.

¶ 14. Ms. McLove testified that she knew Mr. Mitchell and Alexis and that Mr. Mitchell would bring Alexis to see her at the sheriff's department where she worked. The first time that she saw Mr. Mitchell with Alexis, Alexis had sores in her head. Ms. McLove claimed that some of the sores looked like little blisters and some looked like ring-worm. Ms. McLove also stated that Alexis was not clean and that Mr. Mitchell claimed that that was the way she looked when he picked her up. Ms. McLove continued testifying and explained about the second time she saw Mr. Mitchell with Alexis.

¶ 15. Ms. McLove asserted that on the second occasion Alexis was fairly clean and that she did not have sores in her head. She inquired whether Mr. Mitchell had gotten medication for Alexis and he said no, and that when he tried to discuss the sores with Ms. Mitchell she would not talk about it with him. Ms. McLove explained that on the third and final occasion that she saw Mr. Mitchell with Alexis it appeared from both sight and smell that her pony tail had been burnt; however, Mr. Mitchell did not know how it happened and stated that he had gotten Alexis in that condition.

¶ 16. On cross-examination, she admitted that if it was ring-worm that Alexis had, that children usually get this, and in fact, her own son had come home from school with something similar to ring-worm or what she called "tatter." Additionally, regarding Alexis's appearance, she agreed that the child could have gotten dirty after Mr. Mitchell had picked her up. The next witness was Ms. Olivia Stewart.

¶ 17. Ms. Stewart and Mr. Mitchell attended the same church. Ms. Stewart claimed that she had seen Mr. Mitchell with the children at church "all the time," and that it was only "occasionally" or "very seldom" that she saw Ms. Mitchell at church. Additionally, she testified that even after the separation she saw Mr. Mitchell at church with Alexis. Ms. Stewart asserted that Mr. Mitchell took care of Alexis and...