Watts v. Watts, 2010–CA–00613–COA.

• Decision Date: 25 October 2012
• Docket Number: No. 2010–CA–00613–COA.,2010–CA–00613–COA.
• Citation: 99 So.3d 751
• Parties: Thomas Dale WATTS, Appellant v. Kimberly J. WATTS, Appellee.
• Court: Mississippi Court of Appeals

99 So.3d 751

Thomas Dale WATTS, Appellant

v.Kimberly J. WATTS, Appellee.

No. 2010–CA–00613–COA.

Court of Appeals of Mississippi.

Jan. 24, 2012.

Rehearing Denied July 17, 2012.

Certiorari Denied Oct. 25, 2012.

Michael B. Holleman, Gulfport, attorney for appellant.

Dean Holleman, Gulfport, attorney for appellee.

Before LEE, C.J., ISHEE and CARLTON, JJ.

CARLTON, J., for the Court:

¶ 1. Thomas Watts filed for a divorce from his wife, Kimberly Watts, on July 9, 2008. After a trial held in the Harrison County Chancery Court, the chancellor granted the parties an irreconcilable-differences divorce. The chancellor awarded Kimberly one-half of the marital assets, and he also awarded attorney's fees to Kimberly. The chancellor awarded the parties joint physical and legal custody of the parties' minor son, Trevor Watts. Thomas now appeals, claiming the chancellor erred in awarding joint legal and physical custody of Trevor and also erred in awarding alimony and attorney's fees to Kimberly. Finding no error, we affirm the chancellor's judgment.

FACTS

¶ 2. Thomas and Kimberly were married on May 4, 1996. Thomas worked as a certified nurse anesthetist, and Kimberly worked as a registered nurse. The marriage produced one child, Trevor, born on August 21, 1996. Prior to the marriage, Thomas entered into a rehabilitation program for prescription drug abuse. During his recovery, Thomas met Kimberly, who worked with him in his recovery process.

¶ 3. In December 2006, Thomas began exhibiting abnormal and distant behavior. After inquiries by his coworkers about his behavior, Thomas again entered into an in-patient drug rehabilitation program, and he self-reported to a doctor for abusing prescription drugs. Thomas consequently took a leave of absence from his job as a nurse anesthetist. During this time, Kimberly returned to full-time work to supplement the family's income while also assisting in providing care for her ailing father. Kimberly also had surgery to remove an ovary. Following his completion of the rehabilitation program in January 2007, Thomas enrolled in the Nursing Recovery Program.

¶ 4. After Thomas's release from the rehabilitation program, he and Kimberly began experiencing problems in their marriage. Kimberly suffered the loss of her father in October 2007. In July 2008, the parties engaged in an argument that escalated into a charge of domestic abuse against Kimberly. Thomas obtained an ex-parte temporary restraining order (TRO) for emergency relief and filed an affidavit in support of the TRO claiming Kimberly was a danger to herself and others. Kimberly filed no pleadings challenging the propriety of the TRO. The TRO granted Thomas temporary custody of Trevor, appointed a guardian ad litem (GAL) to represent Trevor's best interest, and set a hearing for July 22, 2008. The chancellor ultimately determined the affidavit was not substantially true in material aspects, and he also found that Kimberly had not posed a danger to herself or others at the time the affidavit was signed. Thomas and Kimberly finally separated on July 5, 2008.

¶ 5. On July 22, 2008, the parties agreed to an order for temporary relief, which appointed a new GAL; provided for supervised visitation between Trevor and Kimberly, pending the GAL's interim report; and ordered the parties and Trevor to undergo psychological and psychiatric evaluations. Thomas, Kimberly, and Trevor all met separately with the doctors and the GAL, who recommended a specific unsupervised visitation schedule for Trevor with Kimberly. The chancellor entered a First Amended Order for Temporary Reliefand Consolidation, setting up a specific visitation schedule.

¶ 6. After the trial held on March 2–5, 2009, Thomas and Kimberly voluntarily consented to the divorce on the ground of irreconcilable differences. The chancellor awarded Thomas and Kimberly joint legal and physical custody of Trevor. The chancellor also awarded $15,000 in attorney's fees to Kimberly, and he ordered Thomas to pay Kimberly $1,000 per month in alimony.

¶ 7. Following the entry of the final judgment, Thomas filed a Rule 59(e) motion to set aside, alter, or amend the final judgment. SeeM.R.C.P. 59(e). On July 13, 2009, Thomas filed an amended Rule 59(e) motion and also a Rule 60 motion to set aside, alter, or amend the final judgment, to reopen the evidence and/or for a new trial. SeeM.R.C.P. 60. On November 18, 2009, Thomas filed an amended and supplemental motion under Rule 59(e) and Rule 60, as well as a motion for modification of the judgment. On December 7, 2009, Thomas filed a motion for findings of fact and conclusions of law regarding the Rule 59 and Rule 60 motions. Following a hearing, the chancellor issued an order denying the motions. Thomas now appeals.

STANDARD OF REVIEW

¶ 8. “Chancellors are afforded wide latitude in fashioning equitable remedies in domestic relations matters, and their decisions will not be reversed if the findings of fact are supported by substantial credible evidence in the record.” Henderson v. Henderson, 757 So.2d 285, 289 (¶ 19) (Miss.2000). “The Court will not disturb the findings of a [c]hancellor unless the [c]hancellor was manifestly wrong, clearly erroneous[,] or an erroneous legal standard was applied.” Bell v. Parker, 563 So.2d 594, 596–97 (Miss.1990).

DISCUSSION

I. Albright Factors

¶ 9. Thomas argues that the chancellor abused his discretion regarding his findings and application of the Albright¹ factors. Thomas cites to Taylor (Rodgers) v. Taylor, 755 So.2d 33, 38 (Miss.Ct.App.1999) in support of his claims that the chancellor made “quantum leaps” to reach “reckless” punitive findings, “revealing a bias leading to an abuse of discretion.” Thomas claims that without any supporting evidence, the chancellor made the following findings of fact: Thomas “set [Kimberly] up”; Thomas “play[ed] Trevor against [Kimberly]”; Thomas “manipulated Trevor's relationship with [Kimberly]”; Thomas “destroyed Trevor's true free will” by “stag[ing] things at home”; Thomas “actively interfered with the relationship between [Kimberly] and Trevor”; and Thomas “poisoned Trevor against his mother.” Thomas submits the chancellor erroneously used these incorrect findings to support several of the Albright factors to favor Kimberly, including the factors related to parental skills, moral fitness, preference of the child, and parental interference.

¶ 10. As the Mississippi Supreme Court has stated on numerous occasions, absent an abuse of discretion, an appellate court will uphold a chancellor's decision. Brekeen v. Brekeen, 880 So.2d 280, 283 (¶ 4) (Miss.2004). This Court will not disturb the factual findings of the chancellor unless the findings are manifestly wrong or clearly erroneous. Jerome v. Stroud, 689 So.2d 755, 757 (Miss.1997). “However, where the chancellor improperly considers and applies the Albright factors, an appellatecourt is obliged to find the chancellor in error.” Hollon v. Hollon, 784 So.2d 943, 946 (¶ 11) (Miss.2001) (citing Stroud, 689 So.2d at 757). We recognize that the supreme court has continuously held that in all child-custody cases the polestar consideration shall remain the best interest and welfare of the child. Albright v. Albright, 437 So.2d 1003, 1005 (Miss.1983). The Albright factors, which are used to determine child custody based on the best interest of the child, include:

1) age, health and sex of the child; 2) determination of the parent that had the continuity of care prior to the separation; 3) which has the best parenting skills and which has the willingness and capacity to provide primary child care; 4) the employment of the parent and responsibilities of that employment; 5) physical and mental health and age of the parents; 6) emotional ties of parent and child; 7) moral fitness of parents; 8) the home, school[,] and community record of the child; 9) the preference of the child at the age sufficient to express a preference by law; 10) stability of home environment and employment of each parent; and 11) other factors relevant to the parent-child relationship.

Hollon, 784 So.2d at 947 (¶ 12) (citing Albright, 437 So.2d at 1005).

¶ 11. At trial, the chancellor heard testimony from the parties and witnesses, as well as Dr. William Gasparrini, a psychologist, and Dr. Jule Miller, a psychiatrist.² In examining the chancellor's findings and analysis of the Albright factors, the record reflects that the chancellor found the factor of age favored neither parents, since Trevor was twelve-years old at the time of the trial. After examining the following factors, the chancellor found these factors favored neither party: health of the child; age of the parents; willingness and ability to provide care; continuity of care; home, school, and community record.

¶ 12. Thomas argues the chancellor abused his discretion by failing to find that the factors of willingness and ability to provide care and Trevor's home, school, and community record favored Thomas. According to Thomas, there was overwhelming testimony presented that showed Thomas's involvement in Trevor's school and extracurricular activities. Thomas points out that the chancellor possessed awareness that, due to her work schedule, Kimberly is not able to participate in Trevor's school and extracurricular activities to the extent that Thomas participates. Thomas argues that he remains extremely involved in Trevor's home, school, and community, and he is both willing and able to provide for Trevor; thus, this factor should favor him.

¶ 13. The chancellor found both parents actively participated in Trevor's life, but the chancellor noted that Kimberly's work schedule did not provide her with the necessary time to be as active as Thomas. However, noting that both parents exhibited a willingness and ability to provide care, albeit with differing work-schedule demands, we cannot find that the chancellor committed manifest error in determining that this factor favored neither parent.

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