Sellers v. Sellers

• Decision Date: 09 June 1994
• Docket Number: No. 92-CA-0693,92-CA-0693
• Citation: 638 So.2d 481
• Parties: Raymond Steven SELLERS v. Carolyn Ann Harvey SELLERS.
• Court: Mississippi Supreme Court

Page 481

638 So.2d 481

Raymond Steven SELLERS v. Carolyn Ann Harvey SELLERS.

No. 92-CA-0693.

Supreme Court of Mississippi.

June 9, 1994.

Albert B. Smith, III, Cleveland, for appellant.

A.E. (Rusty) Harlow, Jr., Harlow & Harlow, Grenada, for appellee.

Before DAN M. LEE, P.J., and PITTMAN and JAMES L. ROBERTS, Jr., JJ.

JAMES L. ROBERTS, Jr., Justice, for the Court:

I.

INTRODUCTION

On July 3, 1992, the Chancery Court of Bolivar County granted the appellant, Raymond Steven Sellers ("Mr. Sellers"), a divorce from his wife, the appellee, Carolyn Ann Harvey Sellers ("Mrs. Sellers"), on the I. Whether the law stating that the interest of a child will be best served by remaining in the custody of his natural parents, is superior to the presumption that siblings should not be required to live apart.

ground of adultery. The chancellor denied Mrs. Seller's prayer for a divorce on the ground of habitual cruel and inhuman treatment and also denied her request for alimony. In addition, the chancellor stated that neither parent was fit at that time to have custody of Anna, the one child born of this marriage, and awarded custody of Anna to Barbara Outz ("Mrs. Outz"), the child's maternal aunt. From this ruling, Mr. Sellers appeals, citing the following error:

We hold that the chancellor erred in awarding custody of the child to her maternal aunt, as there was no finding that Mr. Sellers was clearly unfit. We reverse and remand for findings on Mr. Sellers' current fitness as a parent.

II.

FACTS

Raymond and Carolyn Sellers were married on May 16, 1988. The couple had one child, Anna Sellers, born November 17, 1987. Mrs. Sellers had been married twice previously, in 1981 and 1986, and had one child by the first marriage, Jeremy Edmonds. The couple separated on June 7, 1991, when Mrs. Sellers moved out of the marital home with the children. Mrs. Sellers left the following note:

Raymond I'm gone for good. don't come looking for me. I've got the kids with me. I got your check so I could have some money to feed the [sic] until I go to work. I told you three month ago I wanted out. So I'm gone. I be in touch soon here is my ring I'll be good to them. and you'll see them also. I just don't love you anymore.

see ya

6-7-91 6:48 P.M Carolyn & Kid

After leaving Mr. Sellers, Mrs. Sellers moved to Grenada and moved into the residence of Tonya and Frank Ratliff, where Jimmy Phillips had been residing for quite some time. Although she claims she began dating Jimmy Phillips after her separation from Mr. Sellers, Bonnie Shields, a next door neighbor of Tonya and Frank Ratliff, testified that Mrs. Sellers and Jimmy Phillips moved in together the first or second week of June, 1991, approximately the same time she left Mr. Sellers. Mrs. Sellers lived with Jimmy Phillips at the Ratliff residence for approximately six months before an incident of abuse of Jeremy that led to the removal of the minor children from Mrs. Sellers's custody.

The incident of abuse occurred in the summer of 1991. Jimmy Phillips beat Jeremy with the wire end of a flyswatter on the front porch of the house at approximately 1:00 a.m. Phillips then left the child on the front porch until approximately 3:00 a.m., periodically coming outside to verbally abuse him. During this time, Jeremy was clad only in a pair of little girl's panties. Jeremy was forced to remain in the panties the next day while standing in a corner. Jimmy Phillips called over Jeremy's friends, his own friends, relatives, and neighbors to view Jeremy. This treatment continued until that night when Tonya Ratliff finally put an end to the abuse. This abuse was witnessed by an abundance of witnesses, including Mrs. Sellers, who testified that she approved of the punishment by stating, "It wasn't any worse than anything Raymond ever did." Jeremy was punished for stating he used a bathcloth when he took a bath when in fact he had not used one. It should be noted that Mrs. Sellers's insinuation that Mr. Sellers had abused Jeremy was not substantiated by any evidence whatsoever. In fact, Mrs. Outz, Mrs. Sellers's own sister, testified that Mr. Sellers was a good father figure for Jeremy.

The children were removed from Mrs. Sellers's custody and placed in the custody of Mrs. Outz by the Department of Human Services on September 12, 1991. The children have been in her custody ever since. Mrs. Outz testified that during this time, Mrs. Sellers visited the children 10-15 times and never had them overnight. She further testified that Mr. Sellers only missed three weekends during this entire time and kept both children overnight on several occasions.

                By all accounts, both children love Mr. Sellers, and Jeremy, by his own initiative, even calls Mr. Sellers "daddy."   Despite these facts, the chancellor awarded custody of the children to Mrs. Outz.  This appeal followed
                

III.

DISCUSSION OF ISSUE

Mr. Sellers contends that the decision to award custody of Anna to her aunt was based on the chancellor's unwillingness to separate Anna from her half-brother Jeremy. Mr. Sellers argues that in basing his decision on this factor, the chancellor violated the presumption that the child's best interest is placement with the parent or parents.

Mrs. Sellers counters that the chancellor's decision was based not on the fact that the chancellor did not want to separate the children, but rather, on a finding that both parents were unfit to care for the children at the time. Therefore, Mrs. Sellers argues, the problem of separating the children was but one factor in the chancellor's decision to place the children with the maternal aunt.

This Court is bound to uphold the factual findings of a chancellor if the findings are not manifestly wrong or substantially erroneous. Crow v. Crow, 622 So.2d 1226, 1227 (Miss.1993); Bell v. Parker, 563 So.2d 594, 596-597 (Miss.1990). However, in the case at bar, the chancellor made no explicit factual finding as to the fitness of either parent, nor did he state whether his custody decision was based on a desire to keep the children together. The chancellor stated in part:

The only issue to be resolved is that of the custody of Anna, the four year old daughter of the parties. I want to discuss this before I announce what the Court must do. In a custody dispute between natural parents, the principal consideration is the best interests of the children. There are several things the Court must consider in trying to arrive at that determination. One of them, and our Supreme Court has discussed this on a number of occasions, is the problem of splitting children. Our Court has frowned on that when any other solution is available.

In this case we have a brother and a sister. Although they are of the half-blood, nevertheless, they are brothers and sisters and will be reared as brothers and sisters. They have a close relationship with each other. This creates a problem for the Court in considering the father's rights to custody of these children because he is not the father of the older child.

The Court feels that splitting these children and placing them in different households would not be a plus point insofar as their welfare is concerned. The Court has no doubt these parents both love this child very dearly. There is no question about that. Anything said here should not suggest that either parent doesn't love this child and does not sincerely want to have her custody. If custody of the child were awarded to the father that would involve splitting this brother and sister because the older child is not the child of this father.

The Court has no jurisdiction over that child in this proceeding. So to award the father the custody of Anna would necessarily divide this brother and sister, putting them in two different households. The father is living alone, has a problem about providing around the clock care for this child. He goes to work early and the child would spend most of every working day with a non-relative neighbor who I believe would take good care of the child but which is not the best of situations.

The father has a stable home environment. That is a plus.

From the mother's standpoint, I see some instability here. I am very much concerned about the incident of alleged child abuse which caused these children to be taken from her home in the first place. She has admitted a long standing adulterous relationship with Mr. Phillips and her testimony, as I recall it, is that this relationship is still ongoing although they do not live together. That in itself is not determinant of legal custody, but it certainly is not a plus point. I think Mrs. Sellers' life is in a state of flux now. Hopefully sometime in the future she will be able to establish a responsible, loving Under these circumstances I do not think it would be to the best interest of this child to remove her from the foster home in which she presently lives. Mrs. Utz [sic] is in the courtroom as the Court is making this ruling. She is not a party to this litigation, but she did testify that as to the relationship with these children and I was impressed with her. In the short period of time I heard her testimony I perceived her to feel a real sense of responsibility for these children.

household into which these children might possibly come. I will say the same thing of Mr. Sellers.

She testified that she is perfectly willing to continue these children in her home as a foster parent. And I will ask Mrs. Utz [sic] now if this correct.

BY THE COURT: Is that your attitude, Mrs. Utz [sic]?

BY MRS. UTZ [sic]: Yes, sir.

BY THE COURT: All right, it will be the Court's order that the custody of Anna will remain with Mrs. Utz [sic] in the foster home in which she has been placed by the Department of Public Welfare.

I don't suggest that this is a permanent arrangement. I hope that sooner or later these children can be placed with one or the other of their natural parents. But for the time being and until further order of this Court I think it...