Owens v. Owens

Decision Date10 October 2006
Docket NumberNo. 2005-CA-00866-COA.,2005-CA-00866-COA.
PartiesJames A. OWENS, Jr., Appellant v. Martha Sue OWENS, Appellee.
CourtMississippi Court of Appeals

Phillip M. Whitehead, Booneville, attorney for appellant.

Elizabeth B. Fox, attorney for appellee.

Before KING, C.J., SOUTHWICK and IRVING, JJ.

IRVING, J., for the Court.

¶ 1. James Owens and Martha Owens agreed to an irreconcilable differences divorce. James and Martha were able to agree on some aspects of their divorce, and the matters that they could not resolve were submitted to the Chickasaw County Chancery Court, which divided the contested marital assets and granted custody of the parties' minor child to Martha. The court also declined to adjudicate a credit card debt specifically submitted by the parties. Aggrieved, James appeals and asserts the following points of error, which we quote verbatim:

1. Whether the Chancellor committed manifest error and abused his discretion in his holding awarding [sic] custody of Jordan Lance Owens, a minor, to his mother Martha S. Owens when uncontroverted testimony showed that James A. Owens was the primary caretaker of the child.

2. Whether the Chancellor committed manifest error and abused his discretion in his holding that James A. Owens was entitled to only $10,000.00 of a retirement fund/401k valued at $60,000.00.

3. Whether the Chancellor committed manifest error and abused his discretion in failing to award James A. Owens any equity accrued in the Ford Expedition owned by the parties when uncontroverted evidence showed he contributed at least $7,000.00 to the purchase of the same from Social Security disability proceeds.

4. Whether the Chancellor committed manifest error and abused his discretion in failing to award James A. Owens an equal equitable division in the marital home even though the evidence show [sic] substantial contributions to the same both before and after his disability.

5. Whether the Chancellor committed manifest error and abused his discretion in failing to make an equitable apportionment of the debt accrued to remodel the home that was charged to the Master Card held in the name of James Owens.

¶ 2. Finding error, we affirm in part and reverse and remand in part.

FACTS

¶ 3. Martha and James were married on October 24, 1980, in Chickasaw County. Three children were born to the union: Jamie Paul, born July 28, 1980, and now emancipated; Magen Nicole, born May 8, 1989; and Jordan Lance, born April 5, 1998. The parties agreed that Martha should have custody of Magen. Therefore, the only contested custody issue was which parent should have custody of Jordan.

¶ 4. Sometime in 1992, James suffered an accident at work and became disabled. Although he is able to care for his children, he cannot work. James receives a monthly income from Social Security disability payments of around $950. Martha works for Wal-Mart, where she has been employed for over twenty-five years. Martha testified that she works around forty hours per week.

¶ 5. James and Martha ceased having marital relations on July 30, 2004, although they lived together until November 2004, when Martha was awarded the temporary use and possession of the marital home. At that time, James moved out of the house.

¶ 6. Additional facts, as necessary, will be related during our analysis and discussion of the issues.

ANALYSIS AND DISCUSSION OF THE ISSUES

1. Custody of Jordan

¶ 7. James contends that the chancellor failed to properly weigh the evidence presented in light of the Albright factors, and, therefore, he should have custody of Jordan rather than Martha.

¶ 8. When reviewing a chancellor's custody determination, we "will not disturb a chancellor's judgment when supported by substantial evidence unless the chancellor abused his discretion, was manifestly wrong, clearly erroneous, or an erroneous legal standard was applied." Copeland v. Copeland, 904 So.2d 1066, 1074(¶ 30) (Miss.2004) (quoting Chapel v. Chapel, 876 So.2d 290, 292-93(¶ 8) (Miss. 2004)). "Unless the evidence demands a finding contrary to the chancellor's decision, [we] will not disturb a custody ruling." Id. (citing Phillips v. Phillips, 555 So.2d 698, 700 (Miss.1989)). In making a custody determination, a chancellor is required to look at the factors enumerated in Albright v. Albright, 437 So.2d 1003, 1005 (Miss.1983). "[T]he polestar consideration in child custody cases is the best interest and welfare of the minor child." Copeland, 904 So.2d at 1074(¶ 31) (citations omitted).

¶ 9. In order to conduct as thorough a review as possible, we will address the chancellor's treatment of each of the Albright factors, as well as the chancellor's reliance on Sparkman v. Sparkman, 441 So.2d 1361 (Miss.1983), to which James objects.

Sparkman

¶ 10. In Sparkman, the Mississippi Supreme Court indicated that, "in the absence of some unusual and compelling circumstance dictating otherwise, it is not in the best interest of children [siblings] to be separated." Id. at 1363. The chancellor in the present case indicated that he relied heavily on this holding in awarding custody of Jordan to Martha, who also has custody of Magen. James contends that the chancellor placed too much emphasis on Sparkman, treating it as an "overriding" concern instead of looking at Jordan's best interests.

¶ 11. We note that Mississippi courts have been extremely hesitant to separate siblings. In Bredemeier v. Jackson, 689 So.2d 770, 775 (Miss.1997) (citing Sellers v. Sellers, 638 So.2d 481, 484 (Miss.1994); Franklin v. Kroush, 622 So.2d 1256, 1256 (Miss.1993); Arnold v. Conwill, 562 So.2d 97, 100 (Miss.1990)), the Mississippi Supreme Court stated: "Although there is no `hard and fast' rule that the best interest of siblings will be served by keeping them together, this Court has been extremely hesitant to separate siblings when their parents divorce."

¶ 12. However, a few cases have sanctioned the separation of children under certain circumstances. In Bowen v. Bowen, 688 So.2d 1374, 1382 (Miss.1997), the Mississippi Supreme Court affirmed a chancellor's decision to split up two siblings. The court noted that the chancellor had found that one child had stated a preference to live with his mother and had "apparent hostility towards his father," while the other child had difficulty living with his mother because of rumors about her relationship with another woman. Id. at 1381. The court emphasized that the visitation schedule in the case allowed the children significant time together and that the boys would both be attending the same school and would see each other at school. Id. at 1382. In short, the court approved the chancellor's finding that "it was in the best interest of each child to be placed in the custody of a different parent." Id. The court noted that the chancellor made this determination aware that "`it . . . is usually best not to split custody of the children,' but . . . [the split] was called for in this case for the reasons stated." Id. at 1381.

¶ 13. In Bell v. Bell, 572 So.2d 841, 846 (Miss.1990), the Mississippi Supreme Court approved a chancellor's split of two siblings, but noted that the general rule is that siblings should not be separated. Nevertheless, the court found that "[t]he record of proceedings below makes clear that the Court carefully regarded this circumstance and . . . [made] elaborate provision for assuring that Ray and Joc are together as much as is reasonably practicable given their residence in separate communities and their attendance at different schools." Id.1 ¶ 14. In Carson v. Natchez Children's Home, 580 So.2d 1248, 1257 (Miss.1991) (citations omitted) (emphasis added), the Mississippi Supreme Court stated: "it is presumed that the best interest of a child will be served by remaining in the custody of the natural parent. Almost as strong is the imperative that siblings should not be required to live apart." The Carson court affirmed the chancellor's separation of two siblings, noting the chancellor's finding that an expert had recommended that the children be placed separately because the sexual abuse that they had suffered left them unable to interact appropriately together. Id. at 1257-58.

¶ 15. The general principle to be gained from these cases is that, when siblings have been separated, other circumstances have dictated that the division is in the best interest of the children. When other circumstances do not require the separation of children, Mississippi courts should attempt to keep siblings together. These principles are particularly brought into focus by our holding in Sootin v. Sootin, 737 So.2d 1022 (Miss.Ct.App.1998). In Sootin, we reversed the decision of a chancellor who opted to give custody of two sisters to separate parents. Id. at 1028(¶ 15). In so holding, we noted that the record did not contain substantial enough evidence to justify the custody split where the evidence indicated only that one sister had "slightly more" affection for her mother than for her father. Id. at 1027(¶ 15). We found that this fact was insufficient to create an "`unusual and compelling circumstance' . . . that would require [the children] to be separated in order to serve their best interests." Id. (quoting Sellers v. Sellers, 638 So.2d 481, 484 (Miss.1994)).

¶ 16. Therefore, although the chancellor in this case obviously placed great emphasis on the fact that granting James custody would split up Jordan and Magen, the chancellor did not err in relying on Sparkman in making its decision. While the placement of children with their siblings is not a concern that "overrides" the best interest of the child, our case law makes it clear that keeping siblings together is assumed to be in the best interest of a child, absent a showing that the circumstances in a particular case are to the contrary. Here, the chancellor addressed each of the Albright factors, including the reasoning of Sparkman as an additional...

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