Sobieske v. Preslar, 1998-CA-01259-SCT.

Citation755 So.2d 410
Decision Date27 January 2000
Docket NumberNo. 1998-CA-01259-SCT.,1998-CA-01259-SCT.
PartiesMargaret Lewis Preslar SOBIESKE v. Ricky Gene PRESLAR.
CourtUnited States State Supreme Court of Mississippi

Rebecca C. Phipps, Corinth, Attorney for Appellant.

Phil R. Hinton, Corinth, Attorney for Appellee.

EN BANC.

PRATHER, Chief Justice, for the Court:

STATEMENT OF THE FACTS AND CASE

¶ 1. Margaret Sobieske ("Margaret") and Ricky Preslar ("Ricky") were divorced on January 3, 1996 on grounds of irreconcilable differences. In his decree granting the divorce, the Chancellor approved and incorporated a written agreement providing for joint legal and physical custody of the couple's only child, Carley, a female born in 1992. This arrangement worked reasonably well until Margaret remarried and her husband was transferred to Atlanta, Georgia in 1997.

¶ 2. On August 22, 1997, Margaret filed for a modification of the divorce decree, seeking primary custody of Carley. Six days later, Ricky filed a counter-complaint, also seeking primary custody of the little girl. On July 8, 1998, the Chancellor issued a ruling granting primary custody of Carley to Ricky and directing the parties to work out a visitation schedule with "liberal" visitation rights in favor of Margaret. The Chancellor further required that Margaret pay 14 % of her adjusted gross income to Ricky in child support for Carley, and he directed that both parties maintain medical insurance in favor of the child. Following the Chancellor's denial of a motion to reconsider, Margaret appealed to this Court.

LAW

Whether the trial court should have awarded the primary legal and physical custody of the minor child to the father.

¶ 3. The instant appeal requires this Court to determine whether the Chancellor was manifestly in error in awarding custody of Carley to Ricky. In Albright v. Albright, 437 So.2d 1003 (Miss.1983) this Court held that:

We reaffirm the rule that the polestar consideration in child custody cases is the best interest and welfare of the child. The age of the child is subordinated to that rule and is but one factor to be considered. Age should carry no greater weight than other factors to be considered, such as: health, and sex of the child; a determination of the parent that has had the continuity of care prior to the separation; which has the best parenting skills and which has the willingness and capacity to provide primary child care; the employment of the parent and responsibilities of that employment; physical and mental health and age of the parents; emotional ties of parent and child; moral fitness of parents; the home, school and community record of the child; the preference of the child at the age sufficient to express a preference by law; stability of home environment and employment of each parent, and other factors relevant to the parent-child relationship.

Albright, 437 So.2d at 1005.

¶ 4. The Chancellor did not expressly make any findings in his ruling as to the Albright factors, merely writing that:

Considering the factors set forth in Albright, it appears that both parents have the desire and capacity to have the primary custody of Carley, however, Carley has close ties to the home she has lived in since birth as well as to her friends and family in Alcorn County, Mississippi. Carley has close ties to Mrs. Sobieske's twin sister, Mary Allred, and to Ms. Allred's daughter, Meagan, who is approximately the same age as Carley. Carley also has, in Alcorn County, other family and friends who she is close to. Mrs. Sobieske and her new husband are living in Atlanta, Georgia, and since Carley does not have any other family in that area, there are uncertainties for her there.

While it certainly would have been preferable for the Chancellor to have expressly considered each Albright factor, it is perhaps understandable that he did not do so in the present case, given that the testimony established that both Ricky and Margaret were fit and loving parents. The Chancellor's ruling appears to recognize that both parents are fit under Albright, and the Chancellor based his ruling primarily on which geographical location he felt would be most suitable for Carley.

¶ 5. Both Ricky and Margaret conceded in their testimony that the other was a good and responsible parent. Margaret did have some complaints regarding Ricky's parenting, however, testifying that he was often late in picking up Carley for visitation and that he sometimes purchased clothes for Carley which were too big. Ricky also acknowledged that Margaret was a good parent, but he testified that, in his opinion, she would sometimes "put her own personal wants and needs in front of what was in the best interest of her child."

¶ 6. Other witnesses testified that both Ricky and Margaret were good parents, although the witnesses did disagree as to which parent would be most suitable as primary custodian of Carley. Sherron Rinehart, Margaret's sister, testified that while both Ricky and Margaret were good parents, she felt that Margaret would be the better parent because "I'm a mother, and I know the bond that a mother and daughter has." Interestingly, another of Margaret's sister's testified that she felt that Ricky had been the better parent to Carley. Specifically, Mary Allred, Margaret's twin sister, testified that while both were good parents, she felt that Ricky had demonstrated greater parenting skills and would be better suited to care for Carley than her sister.

¶ 7. Margaret places substantial emphasis on the argument that, as a male, Ricky would not be as suitable to raise a little girl. Ricky, however, presented testimony that Carley often had female assistance and companionship during her visits with him. Robin Chapman, Ricky's girlfriend of two years, testified that often assisted Carley in trips to the bathroom, as well as in shopping for clothes, and that she sometimes babysat Carley when Ricky was working late. Chapman also testified that she and Ricky were very likely to get married soon, although Ricky's testimony was less definite in this regard. Margaret's twin sister, Mary Allred, testified that she had often cared for Carley when Ricky was forced to work late, and she indicated that she wished to continue to do so if Ricky were granted primary custody.

¶ 8. A significant portion of the testimony at trial centered around the living conditions that Carley would face in both Atlanta and Corinth. Margaret testified that she and her new husband, Steve Sobieske, would be living in Roswell, a suburb of Atlanta. Margaret testified that she chose Roswell in large part due to its excellent schools, and she notes that her job as a computer consultant would only require her to work from 8:00 a.m. to 4:30 p.m. However, Steve conceded that the Atlanta area had a higher crime rate than Corinth, and all parties acknowledge that Carley has more friends and relatives in the Corinth area than in Atlanta.

¶ 9. Ricky testified that Carley attended a private, church-affiliated kindergarten in Corinth and that he and his ex-wife shared the education expenses evenly. Ricky acknowledged that he was, at times, forced to work relatively long hours, testifying that he worked as a manager at Kroger's from eight to five during the week, from three to midnight every Saturday, and from eight to five on one out of every three Sundays. As noted supra, however, Ricky presented testimony that he was assisted in taking care of Carley by friends such as Chapman and Allred.

CONCLUSION

¶ 10. In the present appeal, two of the Albright factors undisputably favor Margaret: the age and sex of the child. Carley is female and was born in 1992. However, it is also clear that the age and sex of a child are merely factors to be considered under Albright, and this Court has significantly weakened the once strong presumption that a mother is generally best suited to raise a young child. This Court stated in Mercier v. Mercier, 717 So.2d 304, 307 (Miss.1998) that:

The tender years doctrine has been gradually weakened in Mississippi jurisprudence to the point of now being only a presumption. Law v. Page, 618 So.2d 96, 101 (Miss.1993). Today, the age of a child is simply one of the factors that we consider in determining the best interests of the child.

¶ 11. This Court must also be mindful of the deferential standard which we employ on appellate review. The Chancellor had the benefit of being able to evaluate personally the testimony of the witnesses, and he clearly agonized over his decision, writing in his ruling that:

This Court has not experienced a case where the Court has been more troubled in reaching a solution to the problem created by the facts.

The central fact of the present case seems to be beyond dispute: both Margaret and Ricky love and care for their daughter, and there is no basis in the record for concluding that either party is an unfit parent.

¶ 12. In light of this central fact, and considering the deference which this Court must show to the Chancellor in the exercise of his discretion, this Court concludes that the Chancellor's ruling should be affirmed. This Court would have greater confidence in the Chancellor's ruling if he had expressly considered the Albright factors, but it can be inferred from his citation to Albright that he felt that both parents were fit under Albright, and we can not say that he abused his discretion in emphasizing that Carley has more friends and relatives in the Corinth area and in awarding custody to Ricky, at least in part, on this basis.

¶ 13. The judgment of the Alcorn County Chancery Court is affirmed.

¶ 14. AFFIRMED.

SULLIVAN, P.J., BANKS, McRAE AND MILLS, JJ., CONCUR; COBB, J., CONCURS IN PART. WALLER, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY PITTMAN, P.J., AND SMITH, J.; COBB, J., JOINS IN PART.

WALLER, Justice, dissenting:

¶ 15. Because the chancellor failed to consider expressly and specifically all of the relevant Albright factors, Albright v. Albright, 437 So.2d 1003, 1005 (Miss.198...

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