Montgomery v. Montgomery

• Decision Date: 29 September 2009
• Docket Number: No. 2008-CA-00641-COA.,2008-CA-00641-COA.
• Parties: Lisa Marie MONTGOMERY, Appellant, v. Kelly McCoy MONTGOMERY, Jr., Appellee.
• Court: Mississippi Court of Appeals

20 So.3d 39

Lisa Marie MONTGOMERY, Appellant, v. Kelly McCoy MONTGOMERY, Jr., Appellee.

No. 2008-CA-00641-COA.

Court of Appeals of Mississippi.

September 29, 2009.

Richard Shane McLaughlin, D. Kirk Tharp, attorneys for appellant.

Jason D. Herring, Chadwick Gordon Robison, Henderson McKelvy Jones, Tupelo, attorneys for appellee.

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

MAXWELL, J., for the Court.

¶ 1. Following a trial on the sole issue of custody of minor children, Chase, Coleden, and Amber, the Chancery Court of Pontotoc County awarded joint legal custody of the children to Kelly McCoy Montgomery, Jr. (M.J.), and Lisa Marie Montgomery (Lisa). M.J. received primary physical custody, and Lisa received extensive and liberal visitation rights. Aggrieved by the chancellor's decision, Lisa appeals and raises the following assignments of error: (1) the chancellor failed to properly consider the separation of the parties' children; (2) the chancellor overemphasized Lisa's adulterous affair as part of the Albright analysis; (3) the chancellor abused her discretion by concluding that the age, health, and sex of the children; capacities to provide primary child care and employment responsibilities; and the emotional ties of the parents and children factors favored neither party; and (4) the chancellor abused her discretion by concluding that the continuity of care of the children and the stability of home environment and employment factors favored the father.¹

¶ 2. After hearing oral argument and reviewing the record and briefs in their entirety, we find no error and affirm.

FACTS AND PROCEDURAL HISTORY

¶ 3. M.J. and Lisa were married on June 10, 2000. Before separating, M.J. and Lisa resided in Pontotoc, Mississippi in a four-bedroom, two-bathroom manufactured home on property adjacent to M.J.'s parents and other extended family members. M.J. and Lisa had three children during their marriage. Chase was born on December 6, 2000; Coleden was born on December 11, 2002; and Amber was born on April 9, 2004. Lisa also had one son, Christian, from a previous relationship.

¶ 4. During their marriage and prior to their separation, both M.J. and Lisa had full-time jobs. Since 2000, Lisa has worked for four different employers. She was also a stay-at-home mother for two years. At the time of the trial, M.J. was employed with Super Sagless, a manufacturing facility in Tupelo, Mississippi, where he had worked for the previous four years.

¶ 5. M.J. and Lisa separated on May 15, 2006, when Lisa began having an affair with a man she met at work. M.J. testified that at the beginning of Lisa's affair, she was spending so much time on the telephone and away from the family that he became the children's primary caregiver. In fact, during her affair, Lisa moved out of the family home, leaving M.J. to care for their three children and for Lisa's child from a previous relationship.

¶ 6. On September 5, 2006, the chancellor entered an agreed temporary order, which gave M.J. temporary physical custody of the children. During this time, M.J. was the sole primary caregiver for the children. Since he worked the shift from approximately 2:00 p.m. until 11:30 p.m., Monday through Friday, M.J.'s mother cared for the children when he was gone. She helped the children with their homework, fed them, bathed them, and put them to bed. While M.J. was often gone from the time the children got home from school until after their bedtime, he did spend time helping Chase get ready for school. M.J. also spent the days with Coleden and Amber, except for the two days Coleden attended preschool. When the children were with M.J., they participated in social activities, such as Cub Scouts and church activities.

¶ 7. After the agreed temporary custody order was in place, Lisa continued to maintain a relationship with the children. However, she admitted violating several provisions of the order, including smoking and using foul or vulgar language in front of the children. In addition, after the separation, Lisa failed to provide the children with any financial support as required by the agreed court order.

¶ 8. During the fifteen months M.J. had temporary physical custody of the children, Lisa moved three times. At the time of the trial, Lisa lived in a two-bedroom, two-bathroom manufactured home, which was adjacent to her parents' and sister's homes in Thaxton, Mississippi. Because Lisa worked from 7:00 a.m. until 3:30 p.m., Monday through Friday, Lisa's sister watched her son, Christian, before school.

STANDARD OF REVIEW

¶ 9. In child custody cases, "we are bound by the limits of our standard of review and may reverse only when the decision of the trial court was manifestly wrong or clearly erroneous, or an erroneous legal standard was employed." Hensarling v. Hensarling, 824 So.2d 583, 587(8) (Miss.2002) (citations omitted). "Our standard of review in child custody cases is very narrow. Like the chancellor, our polestar consideration must be the best interest of the child. However, it is not our role to substitute our judgment for [the chancellor's]." Id. We review questions of law de novo. Broome v. Broome, 832 So.2d 1247, 1251(¶ 7) (Miss.Ct.App. 2002).

ANALYSIS OF THE ISSUES

¶ 10. In Albright v. Albright, 437 So.2d 1003, 1005 (Miss.1983), the supreme court set out the following twelve factors chancellors must consider in determining which parent should be awarded custody: (1) the age, health, and sex of the child; (2) the continuity of care prior to the separation; (3) the parenting skills; (4) the willingness and capacity to provide primary child care; (5) the employment and employment responsibilities of the parents; (6) the physical and mental health and ages of the parents; (7) the emotional ties of the parents and child; (8) the moral fitness of the parents; (9) the home, school, and community record of the child; (10) the preference of the child at the age when the child may express a preference by law; (11) the stability of the home environment of each parent; and (12) other relevant factors to the parent-child relationship not stated in Albright. In addressing these factors, chancellors are instructed to weigh the credibility of witnesses as well as interpret the evidence where the evidence is capable of more than one reasonable interpretation to arrive at a custody decision. Johnson v. Gray, 859 So.2d 1006, 1013-14(36) (Miss. 2003).

¶ 11. In the present case, the chancellor conducted an Albright analysis and found that five factors weighed in favor of M.J. and none weighed in favor of Lisa. Accordingly, M.J. was awarded primary physical custody of Chase, Coleden, and Amber. Lisa retained custody of her child, Christian, from a previous relationship and was awarded visitation with Chase, Coleden, and Amber.

I. The Chancellor's Application of Other Relevant Factors in the Albright Analysis

¶ 12. Before we address the chancellor's decision, we remind the parties that "[d]etermining custody of children is one of the most difficult decisions that courts must make." Brewer v. Brewer, 919 So.2d 135, 141(21) (Miss.Ct.App.2005). In Buchanan v. Buchanan, 587 So.2d 892, 897 (Miss.1991), the supreme court held:

The law affords no mathematical formula for deciding such cases, and, even when the trial judge sensitively assesses the factors noted in [Albright] and [its] progeny, the best the judiciary can offer is a good guess. We doubt it would be contrary to these children's best interests if [their parents] were to sit down and talk as the intelligent and mature adults they profess to be and resolve these matters without further civil warfare.

On the other hand, for one reason or another, we know and accept that there are times when people cannot agree, and the reason we have courts is to decide these cases.

Here, the chancellor was faced with a close case.

¶ 13. In her first assignment of error, Lisa takes issue with the chancellor's evaluation of the separation of siblings under the "other factors" prong of Albright. She claims the chancellor failed to properly consider the separation of her and M.J.'s natural children from her other child and did not take into account the siblings' strong bond and the alleged adverse impact the separation had on the children.

¶ 14. The record reflects, however, that the chancellor did consider the separation of the children, but ultimately found it did not outweigh the other factors that favored M.J. The chancellor specifically noted: "the [c]ourt has also taken into account ... a child of Lisa's from a prior relationship, Christian ... and that the children in this case have had a relationship with their half-sibling."

¶ 15. In addressing the issue of separating children, the chancellor cited the supreme court's decision in Copeland, which instructs that "[t]here is no `hard and fast' rule that the best interest[s] of siblings will be served by keeping them together." Copeland v. Copeland, 904 So.2d 1066, 1076-77 (43-44) (Miss.2004) (citing Sellers v. Sellers, 638 So.2d 481, 484 (Miss.1994)). In Copeland, the supreme court affirmed a chancellor's decision to award custody to a father, even though it required separation of a child from his half-sibling. Id.

¶ 16. Here, the record reflects that the chancellor specifically considered the potential effect that the separation of Lisa's child from a prior relationship from the other children might have on the children, but she determined it did not outweigh the other factors favoring M.J. In accordance with our narrow scope of review, we do not find the chancellor abused her discretion in making this difficult decision.

II. The Chancellor's Analysis of Lisa's Adulterous Affair

¶ 17. Next, Lisa claims that the chancellor overemphasized her adulterous affair in the Albright analysis by considering it under both the moral-fitness factor and the parenting-skills factor. She contends this alleged double counting resulted in her being unfairly sanctioned...